“So long (as) and Farewell?” The United Kingdom Supreme Court in Miller

By Oliver Garner

Introduction – A Timely History Lesson

On the 24th January 2017, 7 months to the day of the result of the UK’s referendum to leave the European Union, the President of the United Kingdom Supreme Court delivered the judgment in the Miller appeal. The Court held, by an 8-3 majority, that the UK Government did not have the power to give notice under Article 50 TEU to withdraw from the European Union without a prior Act of Parliament .

Lord Neuberger started the announcement in the manner of a history lecture, detailing the United Kingdom’s accession to the then European Economic Community in 1973. This was a fitting introduction to a judgment which at times reads like a lesson in the UK’s constitution. Accordingly, this lesson encompasses the place that EU law occupies within this order. This post will attempt to provide a concise summary of the magisterial judgment, before providing some comment on the salient issues relevant to EU law.

Summary of the Judgment – The Executive vs. Parliament

Although running to an imposing 283 paragraphs (including the three dissenting judgments), the essence of the judgment is relatively easy to distil. This account does not aim for comprehensiveness but rather  brevity; therefore, it does not do justice to the depth of the Supreme Court’s argumentation. For more detailed accounts of the various domestic law aspects of the judgment see here.

The Supreme Court held that, when the United Kingdom Parliament enacted the European Communities Act 1972, it created a “conduit pipe” whereby EU law created by the institutions of the European Union is constituted as an “entirely new, independent and overriding source of domestic law” [Paragraph 80].

It is settled constitutional principle arising from statutes in the 17th and 18th century that the Executive (today the elected ministers of the Government) cannot change domestic law or the rights flowing from it without Parliamentary approval. [Paragraphs 40-45].

Therefore, the residual “prerogative power” (powers that were once vested in the King or Queen and because they have not been given a statutory footing now vest in the ministers of the Government) to make and withdraw from international treaties cannot be used to give notice under Article 50 TEU to withdraw from the European Union.

Indeed, through fine-grained textual and teleological analysis of the provisions of the European Communities Act 1972, the Supreme Court comes to the conclusion that the prerogative power to withdraw from treaties in the international plane was never even applicable to the Treaties of the European Union: “it seems most improbable that these two parties (Parliament and the Executive) had the intention or expectation that ministers, constitutionally the junior partner in that exercise, could subsequently remove the graft (of the source of EU law onto domestic law) without formal appropriate sanction from the constitutionally senior partner in that exercise, Parliament”. [Paragraph 90]

Instead, such a “major change to UK constitutional arrangements [with the consequent changes in domestic law rights for individuals] must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.” [Paragraph 81]. Thus the Supreme Court concludes on the main point that “in light of the terms and effect of the 1972 Act…the prerogative could not be invoked by ministers to justify giving Notice: ministers require the authority of primary legislation before they can take that course” [Paragraph 101].

The practical consequences of the judgment are that an Act of Parliament voted upon by Members of both the House of Commons and the House of Lords will be necessary in order to authorise the UK Government to give notice to withdraw from the European Union under Article 50(1) TEU.

Along with other foundations, the judgment is predicated on the crucial proposition that EU law is not a form of “foreign law” within the United Kingdom’s constitutional order. Instead, it is a source of domestic UK law. In the course of explicating this position, the Supreme Court formulates perhaps the most sophisticated account yet of the nature of EU law in the UK domestic legal order. I tentatively moniker this doctrine “conditional supremacy” of EU law.

The “Conditional Supremacy” of EU Law

Lord Neuberger’s verbal delivery of the judgment was striking for those who have considered the relationship between EU law and the domestic law of the Member States. He outlined that EU law is an “independent source” of national law. The detailed explication of this claim in the judgment is perhaps even more impactful.

At paragraph 60, the majority outlines that “The 1972 Act…authorises a dynamic process by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes” (emphasis added).

This confirmation that EU law takes precedence over conflicting domestic law reads as a ringing endorsement of the European Court of Justice’s classic claims in the foundational case of Costa v. ENEL that “the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions” [Page 594].

This controversial doctrine has alternatively been labelled the “primacy” or “supremacy” of EU law and has been subject to much academic debate. Indeed, a meta-level debate has even arisen as to whether “primacy” and “supremacy” can in fact be conceptually distinguished (see Chapter 2 of Kaarlo Tuori, European Constitutionalism (CUP, 2015)).

In addition to recognising the doctrine in substance, the Supreme Court even goes as far as to use both these terms by name by referring to the “primacy of EU law” at Paragraph 66 and the “overriding supremacy” of the source of EU law in the hierarchy of domestic law sources at Paragraph 81. One could argue that this recognises the interchangeability of these terms and the concepts they refer to; alternatively, the argument could be made that the Court uses “primacy” to refer to the effect that specific EU law norms have over conflicting norms in specific areas, whereas “supremacy” refers to the more holistic aspect of the overall status of the source itself of EU law.

So, in its judgment as to how the United Kingdom may withdraw from the European Union, has the UK Supreme Court finally endorsed the view of the UK constitutional scholar Sir William Wade that a “constitutional revolution” occurred in 1972 by which the European Union institutions as opposed to Parliament became sovereign in the United Kingdom? Not quite. For the Supreme Court provides a crucial qualification to the supreme status of the source of EU law within the UK constitutional order: “Of course, consistently with the principle of Parliamentary Sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute” [Paragraph 61; emphasis added].

The majority goes on to use this “so long as” formulation 7 more times from Paragraphs 60-68 in detailing how matters fundamental to the European Union legal order, such as the interpretative authority of the Court of Justice of the European Union, are authorised by the domestic constitutional order. This, of course, bears a marked similarity to the famous “Solange” doctrine of the German Constitutional Court, which details the national highest court’s acceptance of EU law conditional upon its compatibility with the substantive provisions of the German Basic Law.

Consequently, the UK Supreme Court’s own “Solange” doctrine of the “conditional supremacy” of EU law predicates the status of the source of law flowing from the EU Treaties entirely on the domestic constitutional authorisation of the European Communities Act 1972: “So long as the 1972 Act remains in force, its effect is to constitute EU law into an independent and overriding source of domestic law”. [Paragraph 65].

Thus, although the individual norms of the source of EU law take precedence in the domestic legal order, the supremacy of the source itself could never be unconditional and absolute in the same way as Parliamentary Sovereignty. The majority illustrate the premises of this proposition succinctly at Paragraph 62 through their explication of the “two things” that the ECA 1972 did: “The content of the rights, duties and rules introduced into our domestic law as a result of the 1972 Act is exclusively a question of EU Law. However, the constitutional processes by which the law of the United Kingdom is made is exclusively a question of domestic law” (emphasis added).

The most comprehensive statement of this so-called doctrine of “conditional supremacy” is found at Paragraph 67: “Following the coming into force of the 1972 Act the normal rule is that the domestic legislation must be consistent with EU law. In such cases, EU law has primacy as a matter of domestic law…However, legislation which alters the domestic constitutional status of EU institutions or of EU law is not constrained by the need to be consistent with EU law. In the case of such legislation, there is no question of EU law having primacy, so that such legislation will have domestic effect even if it infringes EU law. That is because of the principle of Parliamentary Sovereignty…EU law can only enjoy a status in domestic law which that principle allows” (emphasis added).

Therefore, through the recognition of the primacy of EU law norms, but with the crucial qualification that such primacy is conditional on the constitutional authorisation of the domestic legal order in accordance with Parliamentary Sovereignty, the majority of the Supreme Court justices justify their claim that “we would not accept that the so-called fundamental rule of recognition (ie the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal”[Paragraph 60].

Other Issues pertaining to EU Law: Recognising the Constitutional nature of the EU legal order?

Beyond the eye-catching pronouncements on primacy, the majority judgment also makes some other interesting observations pertaining to EU law. The references that I will discuss in this section are: the potential recognition of the constitutional and autonomous nature of the EU legal order; brief discussion of what legitimates the EU legislative process; the categorisation of rights deriving from EU law; whether Article 50 TEU has been incorporated into domestic law, and finally whether notice to withdraw from the Union once given under Article 50(1) is revocable.

The Supreme Court uses language which suggests recognition of the Court of Justice’s claims, first made in Les Verts, as to the constitutional nature of the EU legal order. For example, at Paragraph 24, the judgment refers to the Treaties “changing the constitutional role of the European Parliament within the European Community or Union” (emphasis added).

More strikingly, in the discussion of the Treaties as a source of domestic law, it can be argued that the majority justices recognise the oft-claimed “autonomy” of the EU legal order: “In one sense, of course, it can be said that the 1972 Act is the source of EU law, in that, without that Act, EU law would have no domestic status. But in a more fundamental sense and, we consider, a more realistic sense, where EU law applies in the United Kingdom, it is the EU institutions which are the relevant source of that law” [Paragraph 61; emphasis added].

This nuanced appreciation of the “unique” [Paragraph 90] and multi-faceted nature of the EU Treaties opens the door to understanding the EU legal order as fulfilling different roles and therefore having a different nature depending on the perspective from which it is being regarded. (See Chapter 3 of Kaarlo Tuori, European Constitutionalism (CUP, 2015))

Thus, from the perspective of the United Kingdom’s domestic legal order, the Treaties are an overriding source of domestic law which are conditional on constitutional approval; from the European Union’s own perspective the Treaties are the fundamental “constitutional charter” of the new and autonomous European legal order, and from the perspective of international law the Treaties are the source of obligations in the international plane between the contracting Member States.

Adopting the perspective of the European Union, therefore, the dicta of the UK Supreme Court judgment can be regarded as an explicit endorsement and acceptance of what Kaarlo Tuori describes as the Court of Justice of the European Union’s constitutional function of “positioning” the Union legal order through the creation of juridical doctrines such as primacy and direct effect.

The multi-faceted nature of the Union legal order is also evident in the judgment’s very brief discussion of what authorises UK ministers to participate in the legislative process of the European Union in the Council. The justices outline at Paragraph 95 that they “readily accept, without formally deciding, that ministerial activity in the EU law-making process is effected under the Royal prerogative” (emphasis added). Although not a binding statement of law, the proposition opens the door to a thesis regarding the “dual-legitimation” of EU law.

Ministers in their role as Union legislators are legitimated to act both in accordance with the constitutional requirements of their own domestic legal order (in the UK the Royal prerogative to conduct international relations) in addition to being legitimated to act from the perspective of the Union legal order by the constitutional Treaty, specifically Article 16 (2) TEU’s stipulation that “The Council shall consist of a representative of each member state at ministerial level, who may commit the government of the Member State in question and cast its vote.” (As a side-note, at Paragraph 95 the Supreme Court mistakenly refers to the “European Council” in respect of this provision; it seems that even a magnum opus can contain errors…)

Although ultimately of limited relevance to the question before the court, at Paragraph 69 the majority endorses the High Court’s categorisation of the rights deriving from EU law into: (1) Rights capable of replication in UK law; (2) Rights derived by UK citizens from EU law in other member states; and (3) Rights of participation in EU institutions that could not be replicated in UK law. This tripartite distinction could prove to be useful in divining the consequences of withdrawal for UK citizens. Additionally, it might provide some guidance to other Member State legal orders on the nature of the rights created for nationals by the EU legal order.

A final point regarding the EU legal order of direct relevance to the United Kingdom’s withdrawal from the European Union is the Supreme Court’s treatment of Article 50 TEU. At Paragraph 104, the Supreme Court outlines its perception that “article 50 operates only on the international plane, and is not therefore brought into the UK law through section 2 of the 1972 Act”. The relevance of finding that the Union’s withdrawal clause was not incorporated into domestic law to the question at issue is that the presence of Article 50 in the Treaty of European Union provides no domestic authority for the UK executive to give notice to withdraw under the provisions of the European Communities Act 1972.

This could be argued to endorse the view expressed by the author on this blog in November that the “constitutional requirements” clause in Article 50(1) functions as the bridge between the domestic legal order and the Union legal order, and thus the giving and potential revocation of notice under Article 50(2) is purely a matter of domestic law.

Of course, this observation must be limited to the perspective of the UK legal order; other Member States, particularly the “monist” states, may well have different arrangements when it comes to the status of the Treaties’ withdrawal clause in domestic law. Indeed, the Supreme Court recognises at Paragraph 79 that the UK’s specific constitutional arrangement with regard to EU law arose at least in part because “there was no practical alternative to such an arrangement in a dualist system”.

Furthermore, as predicted in the previous post on revocation, at paragraph 36 the UK Supreme Court proceeds on the assumption of the irreversibility of notice under Article 50 TEU once it is given, and did not refer the question to the Court of Justice through the preliminary reference procedure of Article 267 TFEU. Arguably, the submissions of both the applicants and the respondents did not leave this course open to the Supreme Court through their common ground that triggering Article 50 TEU will start an “irreversible course”.

However, as evidenced by Jolyon Maugham QC’s proceedings before the Irish High Court in the so-called “Dublin case”, the explicitly stated objective of which is a preliminary reference on the issue to the Court of Justice, the explicit question of whether notice under Article 50 TEU is revocable may be set to become the next judicial battlefield of the Brexit war.

Conclusion: The “Final Statement” on EU law and the United Kingdom Constitutional Order?

The majority decision of the justice of the United Kingdom Supreme Court may be set to become the “final statement” on the presence of EU law in the UK constitutional order in both senses of the word: the Miller case may well prove to be chronologically the final time that the UK’s highest court is called upon to interpret the nature of EU law before the United Kingdom’s putative withdrawal from the European Union; in the other sense of the word, the dicta in the case may serve to be the final and definitive statement in an ongoing 40 year constitutional saga initiated by the United Kingdom’s accession to the European Union’s predecessor in 1973.

It is with a certain irony that in the twilight of the UK’s membership of the Union its highest Court has provided the most comprehensive and explicit statement thus far of the status of EU law within the national legal order. Perhaps most significantly, the Supreme Court seems to develop (or at least confirm) its own comprehensive “Solange (so long as)” doctrine regarding the primacy of EU law.

Indeed, this has even prompted the mischievous suggestion by some scholars that the boldness with which the Supreme Court has recognised EU law has been facilitated by the United Kingdom’s current status on the steps of the exit door out of the Union.

As a further general point, it may be posited that the judgment’s fundamental (re-)statement of the United Kingdom’s constitutional order was motivated by the justices’ desire to solidify the Supreme Court’s status in the face of the oncoming constitutional storm presented by Brexit. However, such matters concern the politics of law and the judiciary as opposed to law as an autonomous normative order, and so will not be ventilated any further here.

Although the practical relevance in the United Kingdom legal order of the judgment may be consigned to the annals of history by Brexit, the Supreme Court’s evocation of the conditional supremacy of EU law could provide valuable lessons to other Member State highest courts on how to square the circle of the supremacy of EU law and internal sovereignty. Such issues are particularly live at the present moment following the Danish constitutional court’s rejection of the applicability of the EU legal order’s anti-discrimination on the basis of age acquis in December.

The Supreme Court’s final statement is perhaps captured best in the evocative metaphor at Paragraph 90 that in 1972 “a dynamic, international source of law was grafted onto, and above, the well-established existing sources of domestic law: Parliament and the courts”. To continue this medical allusion, the United Kingdom’s withdrawal from the Union will be an amputation of this graft, the results of which are delineated by the Supreme Court at Paragraph 81: “A complete withdrawal represents a change which is different not just in degree but in kind from the abrogation of particular rights, duties or rules derived from EU law. It will constitute as significant a constitutional change as that which occurred when EU law was first incorporated in domestic law by the 1972 Act” (emphasis added).

As a final twist, however, the practical consequences of the Supreme Court’s judgment on the 24th January is that the result of the referendum held 7 months ago does not legally bind the United Kingdom to withdraw from the European Union. The very sovereignty of Parliament that the Supreme Court upheld means that it is now within the remit of Members of Parliament in both the House of Commons and the House of Lords to decide whether they will vote to trigger Article 50.

However, the glaring question remains of whether a decision not to withdraw from the European Union is politically feasible in the face of the explicit “No” to the European Union returned by the United Kingdom electorate in the expression of popular democracy on 23rd June 2016. The majority decision of the Supreme Court in Miller may have settled the question of the legal principle of Parliamentary Sovereignty. However, the dormant emergence of popular sovereignty on the basis of the “will of the people” as expressed in the EU referendum may pose an entirely different constitutional dilemma.