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’
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.
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/)).