Constitutional Law Group February 9, 2017 Europe, European Union, Judicial review

Denis Edwards: Miller, Law and Revisionism

It is clear from the majority judgment in Miller, and also from several blog comments since, that the judgment’s linchpin is that the 1972 Act “provided that [EU] rights, duties and rules…apply in the UK as part of domestic law” ([62]). This, along with the EU institutions being the source of the ‘domestic law’ coming from the EU, was the most “realistic” way of looking at things. This is in sharp contrast to Lord Reed’s ‘beautiful’ and, if there were a Nobel prize for law, prize winning construction of the 1972 Act, which is, in addition to being unrealistic, too old fashioned for most EU lawyers.

It is interesting that not only is Lord Reed’s approach the one normally preferred of a constitutional court, namely it begins with the meaning of constitutional provisions before drawing conclusions about their consequences, but it also accords with what was the original understanding about the relationship between EU law and ‘domestic law’ back in the 1970s. For example, in an important article in no less than the LQR in 1977, Sir Jean-Pierre Warner – the UK’s first Advocate General in the Luxembourg Court – wrote that, “It is not quite true to say…that Community law ‘has become part of English law’…though it would be true to say that it has become ‘part of the law of England’” (The Relationship Between EC Law and the National Laws of the Member States (1977) 93 LQR 349, 351). Given the terms of s.2 of the 1972 Act, this is plainly not just a semantic distinction.

In particular, it is striking, though now of only historic academic interest, that s.2(1) of the 1972 Act does not just say that EU law shall ‘have effect’. Politics aside, nothing could have been simpler than just saying that and allowing the straightforward conclusion that provisions in the EU Treaties and other rules and principles arising under them are part of ‘domestic law’. However, s.2(1) takes a circuitous path, saying first that EU rights, remedies, etc. “provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given effect or used in the UK”; then, crucially, that they “shall be recognized and available in law…”. It is hard to resist the conclusion that Sir Jean-Pierre’s point has force: that there is a material distinction between, on the one hand, the law of Scotland, England and Wales and Northern Ireland, including EU rules transposed pursuant to s.2(2) of the 1972 Act (all domestic law stricto sensu); and the law in force throughout the UK, namely, in addition to domestic law, EU law which is, as in accordance with the Treaties, given effect and recognized and available in law.

Indeed this, rather than the Miller majority’s “more fundamental sense” about sources of law, is what is truly fundamental about the effect – and genius – of the 1972 Act. It is by maintaining a distinction between domestic law and the law in force in the UK that Parliament achieved what was ultimately essential for our membership of the EU: any conflict between domestic law and the EU law in force throughout the UK (including, for example, directly effective directives defectively transposed) had to be resolved in favour of the latter. That would not have been as easy to resolve as it eventually was, if EU law was just part of ‘domestic law’.

The great pity about Miller is that the bold, constitutional scholarship on the relationship between EU law and domestic constitutional law contained in HS2 has crashed. Only if we end up staying in the EU will a future Supreme Court have to reconcile the Miller majority’s revisionism with HS2. In that event, one can foresee some back-tracking to some old fashioned statutory construction of the 1972 Act – and a little bit of history repeating.

Denis Edwards, Advocate, Barrister, Chinese University of Hong Kong

(Suggested citation: D. Edwards, ‘Miller, Law and Revisionism’, U.K. Const. L. Blog (9^th Feb 2017) (available at https://ukconstitutionallaw.org/))

5Comments

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1

Sean Feeney on February 9, 2017 at 5:32 pm
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Clearly EU could never be “just part of ‘domestic law’” for the clear reason acknowledged by Dennis Edwards but whose force he seems to fail to understand: “Parliament achieved what was ultimately essential for our membership of the EU: any conflict between domestic law and the EU law in force throughout the UK (including, for example, directly effective directives defectively transposed) had to be resolved in favour of the latter.”

EU law is not “just part of ‘domestic law’”. Section 3(1) of the ECA 1972 makes EU law, where relevant, supreme over any contrary domestic statute or contrary common law.

Most of the majority’s reasoning in Miller simply amounts to the entirely unsurprising judgment that the decision to begin the undoing of this unprecedented effect of EU law on domestic law must be a decision authorised by the Queen in Parliament.

This reasoning leaves unresolved questions raised by the holding of the referendum authorised by the Queen in Parliament in the 2015 Act.

See [99] of the majority of Miller:

“In R (Shindler) v Chancellor of the Duchy of Lancaster [2016] 3 WLR 1196, para 58, Lord Dyson MR said that ‘Parliament agreed to join the EU by exercising sovereign powers untrammelled by EU law and I think it would expect to be able to leave the EU in the exercise of the same untrammelled sovereign power’.”

And Lord Carnwath’s dissenting judgment at [214], which concluded:

“…It follows that, in enacting the 2015 Act, Parliament considered withdrawal from the EU, and made the holding of a referendum part of the process of taking the decision under article 50(1). It laid down no further role for itself in that process. In the absence of any provision requiring Parliamentary authorisation of the decision, it is difficult, against the background of such provisions being laid down in the Acts of 1978, 2002, 2008, 2010 and 2011, to regard such a requirement as being implicit.”
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Karen gosling on February 9, 2017 at 8:34 pm
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Hi Denis, Karen Arnold (now Gosling) here. Just posting to say hi and then I’ll read your article. Hope you’re well.

Karen
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Annabel Partridge on March 3, 2017 at 6:55 pm
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Please excuse me as a non-expert for joining in this particular discussion. I am not an academic although I taught constitutional law to undergraduates this time last year, following a career in commercial litigation and legal training. I spent many an hour deconstructing the grammar in s2(1) ECA 1972 earlier this year. The point about it that I could not quite grasp until January was that, in my view, it does not actually give “legal effect” to EU law in UK law at all – as Denis points out, the operative part of s2(1) says EU rights, liabilities etc “…shall be recognised and available in law…”. I wrote an article about the possible significance of this more grammatically accurate reading of the section, which was published on http://www.lawyersforbritain.org. As Denis says, this is all likely to be water under the bridge unless the UK ultimately stays in the EU, although it did tie in perfectly with Lotd Reed’s dissenting judgment. My article is not written as an academic text, but more in the style of a legal training workshop or journalese but I would be interested in Denis’ views on it. It seems very unsatisfactory to think that s2(1) has been slightly misread all these years and that all the legal contortions everyone is going through at the moment might be capable of simplification. I should say I am very happy to have it pointed out to me that I am wrong.
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  Dan Law on April 3, 2017 at 11:18 pm
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  Annabel – s.2(1) should not be read in isolation. If ECA stopped there, domestic courts could not treat EU law as having direct effect and overriding incompatible statute law. That is achieved with s.3. UK courts must follow principles laid down by the European Court. UK Courts are thus required to follow van Gend and Costa v ENEL. Thus s.3 is the operative section for giving “legal effect” to EU law. i.e. what is recognised and made available in s.2(1) must then be treated as having the legal effect that the CJEU have decided this has.
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Annabel Partridge on April 21, 2017 at 4:47 pm
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Thanks, Dan. Apologies, I haven’t made myself clear enough – I do of course understand how s 2(1) works with s 2(4) and that UK courts are of course bound to apply EU direct-effect laws/Regulations as a result. Any other interpretation would of course be daft.

In saying that the wording of s 2(1) does not give “legal effect” to EU law within the UK, I am not saying EU law has no legal force here: rather I was saying that the relevant wording (“..recognised and available in law..”) does not shoe-horn, or graft, EU law into our domestic law in quite the way assumed by all in the Miller case. My view is that the relevant wording merely allows EU law to operate within this jurisdiction, and obliges our UK courts to apply and enforce it – but that it never becomes part of our “domestic law” in the way described by Mrs Miller’s lawyers (and most of the other lawyers too, as well as in the judgment itself).

This topic is exactly that with which Prof. Mark Elliott has been wrestling in part of his latest paper “The Supreme Court’s Judgment in Miller: in search of Constitutional Principle” which is available on his public law blog. He is asking the question, at Part IV B, “But is the majority right …to characterise EU law as a source of domestic law…?” in his search for the basis on which they made that point. He discusses Lord Reed’s dissenting judgment, which is a bit nearer to my own understanding of s.2(1) in that (quote from Mark’s paper) “…EU law is not domestic law…Rather it forms a distinct body of law that has effect in domestic law, in the sense of being enforceable in national legal proceedings.” Then he goes on to wrestle with the rule of recognition (which the Supreme Court said was unchanged).

It is Mark’s legal contortions in particular that I was alluding to, although other commentators have also been examining the judgment. I was aware that Mark was exploring the Miller judgment and finding it slightly “intellectually lackadaisical”. In my view, the reading of s.2(1) that I described in my article makes Mark’s task easier. I will post my comments on that on his public law blog.