Constitutional Law Group December 5, 2016 Administrative law, European Union, UK Parliament, Uncategorized

Robert Craig: Miller: The Statutory Basis Argument – A Primer

This is a brief (1200 words brief) summary of the ‘statutory basis’ argument. This post responds directly to the fact that, in the Supreme Court case being heard today, Lord Mance directly asked Mr Eadie QC whether Article 50 had been incorporated. Mr Eadie said that it was not because it did not have ‘direct effect’. It is suggested that the failure to claim Article 50 is in fact part of domestic law was mistaken. A strong argument can be made that triggering Article 50 could be done under an existing statutory power.

This post is a primer for what the ‘statutory basis’ argument actually means. It is significantly different from the Government’s argument because it is based on the idea that there is a statutory basis rather than a prerogative basis for the Government to trigger Article 50. The full version of the argument is at Robert Craig, ‘Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum’ (2016) 79 Modern Law Review 1041.

The short version of the statutory basis argument

The starting point of the argument is the clever, but unsuccessful, argument put forward by Jason Coppel QC in the High Court. He argued that the ECA by definition only affected rights within the UK which rendered the Category II rights irrelevant (see here for the definition of the Categories). It also meant that the Category I rights could be replaced. His problem was that he admitted that there would an inevitable loss of Category III rights, which he frankly stated in court.

I do not think Mr Coppel went far enough.

The key point is that this case is purely a matter of domestic public law. Once that perspective is fully adopted, the complicating factors of ‘EU law’ and ‘international law’ fall away. So under s 3(1) ECA, all decisions that have been adjudicated in the European Court are actually to be treated as a pure question of law and binding in UK courts as UK law. Under s 18 of the European Union Act 2011, all ‘EU law’ gains its authority purely from domestic statutes.

Under the uncodified UK constitution this means that (unlike other countries perhaps) the sheer volume of EU law that is part of domestic law is potentially far greater than even normal ‘EU law’ rules require. This has important implications. It also means that the ECA drives a coach and horses through our constitution because there are no codified ‘defences’

Gold-plating

Most people are familiar with the argument that the UK frequently ‘gold-plates’ EU law. In my submission this can also be said about s 2(1) ECA:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.

This means that whereas most EU law talks about the ‘direct ‘effect’ of applicable EU ‘rights’, UK law goes much further. In my submission, this includes the provisions of Article 50 which lays down procedures governing at least four restrictions, prohibitions or requirements placed on the UK:

1.     To take steps to determine, in accordance with national provisions, whether the UK wishes to leave the EU
2.     To notify the EU of that decision
3.     To negotiate with the EU thereafter (or refuse to negotiate – which is also a type of brinkmanship negotiation)
4.     To leave the EU after two years if no unanimous extension is agreed

None of these four points create any ‘rights’ under EU law. It is therefore thought by many that Article 50 has no ‘direct effect’ in the UK. This is a serious mistake. As a matter of UK domestic law, I submit that these four requirements fall squarely under the ‘procedures’ set out in s 2(1) ECA. This is an example of ‘gold-plating’. Since Article 50 is therefore fully incorporated into UK domestic law by the ECA, the ‘abeyance principle’ from De Keyser means that the prerogative is therefore put into abeyance.

The statutory power

This then leaves the problem of the actual statutory words required to authorise the statutory power to trigger. In my submission, they can also be found in s 2(1) which requires that whenever it is necessary to implement anything ‘created or arising under the Treaties’, then such powers will be ‘given legal effect’. I argue that this is ample grounds for the generation of a statutory authorising power which could be used by the Government at their discretion.

S 2(4) ECA provides umbrella protection for any rule derived from s 2 ECA. This statutory power therefore supersedes not only the 2002 Act and other similar Acts, but necessarily all the devolution legislation as well.

The judo flip

It might be thought that there is something contradictory about my argument that the sheer pervasiveness of ‘EU law’ actually could be used to justify a power to take away all the EU rights. In judo, the more powerful the opponent, the more that can be used against him. The same applies here.

One of the most fundamental principles of EU jurisprudence (and therefore fully part of domestic law under s 3(1) ECA) is that countries cannot put up further hurdles by way of domestic implementation before EU law can be applied. However, the remedy being sought in this case breaches this most fundamental principle. This is because it requires further legislative authorisation before Article 50 can be triggered.

The judo flip argument points out that the very power and pervasiveness of EU law means that in order to implement Article 50 fully, the statutory power to trigger it must be perfected as a matter of domestic law. Another way to think about it, perhaps, is that Article 50 is the tail of the scorpion.

The prerogative camp and the devolution camp

Yet another blast of genius from John Finnis hit the wires this week. It was brilliant on the European Communities Act (‘ECA’) but a bit wobbly on the 2002 Act and Laker. I remain of the view that even on their best case, the 2002 Act remains fatal for the prerogative camp and the frustration principle applies. I also think that if Miller wins on this point, the devolution arguments will naturally follow. If she loses, they will also lose – and for the same reasons. In my view, the chances of the court finding against Miller on the law, but in favour of the devolution camp, are nil. This point is amply demonstrated by the response from the Government.

Conclusion

I think that notwithstanding the cleverness of some of the prerogative camp arguments, if you make fundamentally the same arguments to the Supreme Court as were put to the High Court, you must expect fundamentally the same result. If the Government actually wants to win, it must ground a submission that the right to trigger Article 50 is a statutory right under s 2(1) ECA. Lord Mance has now squarely raised the point.

Robert Craig, LSE Law School. Thanks to Jeff King and Colm O’Cinneide for helpful comments on an earlier draft. Usual disclaimers apply.

(Suggested citation: R. Craig, ‘Miller: The Statutory Basis Argument: A Primer’, U.K. Const. L. Blog (5th Dec 2016) (available at https://ukconstitutionallaw.org/)).

22Comments

Add yours

1

Sean Feeney on December 5, 2016 at 4:06 pm
Reply

The real point is that it would be absurd for Parliament to have provided for a decision for the UK to withdraw from the EU without having made provision or authority to comply with the consequential EU-law obligation to notify.

So the real question is: whether the 2015 Act provided for, or authorised, the UK’s lawful decision to withdraw from the EU?
2

Sean Feeney on December 5, 2016 at 4:22 pm
Reply

Mr Eadie QC has made the submission that notification is “mandated” by the Lisbon Treaty.

That must be correct if the UK has made a lawful decision to leave because notification is an obligation. For the logic of the claimants’ side is, that if a decision to withdraw has lawfully been made the UK still has no power to notify that lawful decision and is liable for breach of the obligation to notify.
3

Florian on December 5, 2016 at 5:08 pm
Reply

I agree that a fair reading of the rights and powers mentioned in s2 of the ECA include treaty-based powers. However, this means that the ECA has almost completely displaced the prerogative (except for things like entirely new treaties) and that the UK government has, in fact, been exercising treaty-based ECA powers in the EU council ever since 1973. Analysing Article 50 (2) in this way means that the power (and obligation) of notification already exists.

However, Article 50 (1) refers back to the member state’s “constitutional requirements” as regards the decision to withdraw from the union, so the argument then shifts: what are the UK’s constitutional requirements for a valid decision?
4

Chris V on December 5, 2016 at 5:33 pm
Reply

Wasn’t ECA written in contemplation of EU generated law, ie the result of the deliberations of the various EU institutions? Article 50 is covered by later legislation where restrictions on the prerogative were specified, but not article 50. I take the force of the argument advanced and that one could read ECA as including the power to undo the whole purpose of ECA, once that possibility was contemplated. However, it does seem to me to sit uncomfortably with the intent of ECA which was to give effect to all that accession to the EC/EU meant.

If one accepts the statutory right argument, does one then rely on the referendum or are you arguing the government could have exercised that right at any time. That would seem to me to be problematic since Parliament never intended that withdrawal could take place on the “whim” of government.
5

Stephen Laws on December 5, 2016 at 7:37 pm
Reply

If it is relevant that Art 50 notification potentially removes rights (which in the circumstances I don’t accept), it is only because they are contingent on membership. So the provisions of the treaties that define how you withdraw from membership form part of the law that defines the rights – and is incorporated into UK law via s. 2(1) to the same extent as the other treaty provisions from which the rights derive. In the case of Art 50 the incorporation was effected by the 2008 Act – adding the Lisbon qualification of the possible loss of membership under Art 50 to the treaty provisions from which the rights derive for U.K. law purposes. The question therefore is what the 2008 Act contemplated. And it didn’t intend to change the way the UK initiates negotiations to leave. The same outcome as for section 2(1) rights must apply for any other category of rights which are removed because they are contingent on membership but are not incorporated under S. 2(1).

Furthermore statute and prerogative are not the only options. There is a “third source” analysis for notifying a desire to start negotiations, from which other arguments might flow.
6

Tim Treuherz on December 5, 2016 at 8:52 pm
Reply

this post appears to overlook what was today the strongest point for me: the obsevation about the inclusion in schedule 1 of the European Union Act 2011 of a reference to Article 50(3) (decision of European Council extending time during which treaties apply to state withdrawing from EU) . No reference in that Act to Arts 50 ( 1) or (2). Parliament could have made provision in the 2011 Act for some kind of parliamentary procedure to take place before the UK invoked Article 50 but did not do so.
7

Mr B J Mann on December 5, 2016 at 8:58 pm
Reply

>> “the sheer volume of EU law that is part of domestic law……. It also means that the ECA drives a coach and horses through our constitution”

Surely it can’t be true that Remain weren’t entirely accurate when they assured us there was no need to Leave as very little UK law came from the EU, and it supposedly took very little away from our sovereignty.

Should we perhaps have taken that claim with a pinch of salt, especially as, almost in the same breath Remain insisted that if we did dare to vote Leave we’d never be able to disentangle ourselves from the mountain of EU laws, rules, and regulations, and the government would be so tied up trying, not just for years, but for decades, that the economy would collapse, our children’s futures would be destroyed, World War 3 would break out, and the World would end!

But, as I’ve got an unused pinch of salt, and the author of this piece forgot to say it was in his humble opinion, i’ll take it with this!
8

Besselink, Leonard on December 5, 2016 at 9:37 pm
Reply

It seems as if there should be a few links that are actually missing in this text (to the distinction of Categories of rights and possibly to a new contribution by Finnis) – could you insert them in your webpage version?
Thanks
Leonard Besselink
- 9
  
  Robert Craig on December 6, 2016 at 8:50 am
  Reply
  
  Many thanks for this – the fantastic Silvia has now fixed the links and some other errors – at astonishing speed.
10

Mark E. Herlihy on December 6, 2016 at 1:38 am
Reply

Sean Feeney’s position, set forth above, exemplifies the flaw in the argument that notification is an obligation: it is incongruous at best to suggest there could be “liability” for a “breach” of an “obligation” to give notice under A50(2). Notwithstanding that A50(2) in its English version, uses the construction “shall notify,” the relationship between A50(1) and A50(2) (and indeed the balance of A50) is analogous to a legal rule governing a voluntary act such as marriage. Thus: if a couple make a competent decision to marry, they shall give effect to that decision through a prescribed legal procedure (which likely involves a public declaration of their decision). This interpretation (which should be familiar to anyone who has read Hart) undergirds the High Court’s conflation of Articles A50(1) and (2) for purposes of its analysis.
- 11
  
  Sean Feeney on December 6, 2016 at 2:48 pm
  Reply
  
  Er, no.
  
  There is nothing “incongruous” in having an obligation consequent to a permissive act, such as a clearly discretionary decision by a member state to leave the EU.
  
  Article 50 is simply, in my view, the mandatory procedure, as a lex specialis, governing the consequences once a member state HAS (this is in issue in the Supreme Court) exercised its sovereign permissive right to make a decision intending to withdraw from the EU.
  - 12
    
    Mark Edward Herlihy on December 6, 2016 at 4:11 pm
    
    This reply seems to me disingenuous at the least. You have too conveniently dropped the notion of liability from your formulation – but that was precisely what I pointed to as incongruous at best.
    I would submit that just as a decision to marry is ineffectual without completion of the mandated legal forms, so a decision to leave the EU pursuant to A50(1) is ineffectual without triggering the legal process under A50(2). This is precisely why the High Court, correctly in my view, when addressing the question whether the focus of the case should be on the decision, concluded that it was right that the focus was on notification.
  - 13
    
    Sean Feeney on December 6, 2016 at 4:40 pm
    
    Professor Herlihy, my argument is that a member state’s sovereign decision of an intention to withdraw is effectual and has consequences in EU law because it is this decision which invokes the withdrawal procedure.
    
    Lord Justice Elias goes on to declare at [60] of Shindler “the EU has chosen to exercise its power so as to refer sovereignty back exclusively to the UK”
    
    I don’t accept literal intepretations of Article 50 that the lex specialis is invoked by notification, because that would frustrates a teleological reading that a defined time period is necessary to limit uncertainty to other member states.
    
    A decision to withdraw from the EU potentially has consequences for each of the EU27 member states, and their nationals.
14

Pat on December 6, 2016 at 11:13 am
Reply

Dear Robert,

I came to a similar position to you by a different route. Here are some untested thoughts:

1. The status of foreign officials is something that traditionally done by executive certification as part of the prerogative. Although some still see this as a right of the crown, it is actually now a statutory right under s21 of the State Immunity Act. Like you, my thought was that the so-called prerogative rights claimed by the government are actually statutory rights under the ECA.

2. The judgment of the SC in A v HM Treasury tell us that if the exercise of a power (claimed by the Government under an Act, such as the UN Act or, in this case, the ECA) may lead to significant rights infringements, that power must be specifically identified by the parent Act, and cannot be assumed by vague wording.

3. In the ECA, as you correctly point out, that legal power to alter rights is present. I would have thought that power would need to be interpreted quite widely in order to justify the potential that ALL EU rights could be alienated by the Executive. It would involve, in essence, the ECA being valid law – but that ALL rights contained within it being removed by the Crown UNDER the ECA. I suggest this is too wide, and that the Crown cannot claim this power under the ECA.

4. Ancillary to these points, I think that we cannot generalise from the ECA about the relationship between treaties and domestic law. That is, we have the traditional dualist view that treaties must be transformed. However, there is also a constitutional convention that customary international law should be treated as part of the common law as soon as the former crystallises in state practice (Jones and Milling queries this obviously). The point is that our constitution requires that some parts of international law to be treated as valid law, and some not without e.g. an Act of Parliament. It seems to me that the ECA creates a sui generis regime in which a ‘constitutional’ statute requires that EU law is treated as valid law, and not ‘merely’ treaty law.
15

PETER CODNER on December 6, 2016 at 1:35 pm
Reply

why not just acknowledge and accept that the fundamental argument is between federalists and nationalists – a political argument?

If one is – qua judge, at heart a Federalist one is inevitably going to smile upon those arguments that commend themselves to the Federalist position, and it is both unrealistic and absurd to imagine that any judge of any court is capable of completely ignoring his own prejudices, which raises the more philosophical point: can men (human beings) be impartial?

In the light of what in my respectful submission is the official religion, which I call modernism’s repugnance for nationalism,I can well understand if the judges find it hard to put their religion to the back of the queue.life would be a good deal easier and simpler if the absurd word brexit were abandoned and the more appropriate word secession adopted. The proposition that the EU does not have some sort of inclination, or ambition, to turn itself into the United States of Europe is quite simply a lie.

He really is true, whence the declaration of a terminus called “ever closer union”?

Lee necessary implication of a federal Europe is that the United Kingdom – call it Britain if you really wish, is doomed to disappear as a sovereign independent nation – and the sovereignty of Parliament with it, and become merely a subordinate state of the United States of Europe, just as New Hampshire is a subordinate state of the United States of America.

That, and nothing else, is the sole issue that was at stake in the referendum: federalism versus nationalism.
16

Sean Feeney on December 6, 2016 at 3:42 pm
Reply

Perhaps Professor Herlihy is unaware that the ratio of Shindler in the Court of Appeal (which the Divisional Court astonishingly failed to cite in Miller), in the lead judgment of the then Master of the Rolls, found that the referendum was ” an integral part of the process of deciding to withdraw from the EU” but nevertheless “the 2015 Act does not fall within the scope of EU law”.

“19. …In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum.
…
“20.For these reasons, I would hold that the 2015 Act does not fall within the scope of EU law and that the claim fails at the first hurdle.”

http://www.bailii.org/ew/cases/EWCA/Civ/2016/469.html

The concurring judgment of Lord Elias confirmed this part of the ratio of the Master of the Rolls’s judgment as :

“60.In my judgment, the construction of Article 50 adopted by the Master of the Rolls, with which I entirely agree, simply recognises the political reality that EU law can have no part to play in the decision whether a state chooses to remain in the EU….”

So, far from any “conflation of Articles A50(1) and (2)”, the Court of Appeal clearly distinguished the domestic decision to withdraw from any consequential withdrawal procedure in Article 50 under EU law.

In my view, the Divisional Court’s judgment in Miller simply disregards this authority, which was cited before it in written and oral argument, and is in my view inconsistent with it even though the High Court was bound in law to apply the Court of Appeal’s statutory construction of the 2015 Act, unless distinguished.
- 17
  
  Mark Edward Herlihy on December 6, 2016 at 9:32 pm
  Reply
  
  With respect, Schindler does not appear to contribute anything to the resolution of the issues presented in Miller. Indeed, the ratio of the lead opinion squarely undercuts the Government position that some unexplained confluence of the referendum result and the Government’s stated position permits Parliament to be bypassed. Para. 19 of the lead opinion in Schindler says in full:
  
  “I accept that Parliament is sovereign and that it does not need the mandate of a referendum to give it the power to withdraw from the EU. But by passing the 2015 Act, Parliament has decided that it will not withdraw from the EU unless a withdrawal is supported by referendum. In theory, Parliament could decide to withdraw without waiting for the result of the referendum despite the passing of the 2015 Act. But this is no more than a theoretical possibility. The reality is that it has decided that it will withdraw only if that course is sanctioned by the referendum that it has set in train. In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum.”
  
  Thus, notwithstanding that the referendum might be viewed as a necessary component to the Brexit decision, Schindler is consistent with the view that Parliament retained control of the A50(1) decision. Under Schindler, in the 2015 Act Parliament made the referendum necessary, but not sufficient in itself, to the formation of the Brexit decision. Nothing in Miller turns on this.
  
  On the conflation point, I refer you to paras.16-17 of the Divisional Court’s judgment.
  - 18
    
    Sean Feeney on December 7, 2016 at 11:40 am
    
    Your reliance on [16] of Shindler demonstrates you are assuming what is in issue.
    
    Your claim “Under Schindler, in the 2015 Act Parliament made the referendum necessary, but not sufficient in itself, to the formation of the Brexit decision” is false. Shindler did not and could not decide that because that question did not fall for decision in Shindler.
    
    Your statement “Schindler is consistent with the view that Parliament retained control of the A50(1) decision” is true; but so what?
    
    Shindler is also consistent with the view that that Parliament relinquished control of the A50(1) decision.
    
    The question was not decided by Shindler.
    
    The question does now fall for decision in Miller, which will conclude the arguments partially answered in Shindler
  - 19
    
    Mark Edward Herlihy on December 7, 2016 at 3:50 pm
    
    Schindler establishes that the then Master of Rolls was of the view that Parliament had made the referendum a necessary but not sufficient constitutional element to Parliament’s formation of a decision under A50(1), and that on that basis the definition of the franchise for purposes of the referendum was a matter for Parliament to decide under U.K. law. I would submit that this chain of reasoning is the ratio of Schindler, and that nothing in the judgment of the Divisional Court in Miller is inconsistent with that.
    In any event, we seem to have arrived at a consensus that Schindler does not address the issue now before the Supreme Court in Miller.
20

Chris V on December 6, 2016 at 4:37 pm
Reply

Lord Pannick addressed whether article 50 was a statutory power by arguing it was not and only said member states must comply with their own constitutional requirements in this matter. He said it had no status in domestic law, but the first point is the argument to consider.
21

Freedom of Assembly in Poland: Next in Line? | Verfassungsblog on December 10, 2016 at 2:46 pm
Reply

[…] exhaustive report on the hearing before the UK Supreme Court on Art. 50 TEU and Brexit is here, here and here, and RACHEL JONES muses about the role of legislative silence in that […]
22

Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association on January 25, 2017 at 9:16 am
Reply

[…] Robert Craig: Miller: The Statutory Basis Argument – A Primer […]