UK Constitutional Law Association

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Timothy Endicott: A Treaty of Paramount Importance

timothy-endicottCross-posted with the Judicial Power Project.

The reasoning of the majority of the UK Supreme Court in Miller‘s case is undermined by Lord Reed’s rather beautiful explanation of the European Communities Act ([183]-[187], [197]). But at least the majority decision is not based on the mere fallacy in the argument for the claimants – that is, the argument that because Parliament conferred rights, the government cannot take them away. It is a fallacy because Parliament conferred the rights in question by enacting that the treaties should have effect. The true rule is that the government cannot act contrary to what Parliament has enacted. The government does not act contrary to what Parliament has enacted if it cancels a treaty to which Parliament has given effect in UK law (see [204]).

The basis of the majority decision is, instead, this:

‘We cannot accept that a major change to UK constitutional arrangements can be achieved by a ministers alone [sic]; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.’ [82]

That is it. The constitutional importance of this treaty is too great for a minister to cancel it. No authority is offered for the proposition that, if a treaty makes a major change to UK constitutional arrangements, it cannot be cancelled without an act of Parliament. The majority say that ‘This conclusion appears to us to follow from the ordinary application of basic concepts of constitutional law’ [82].

The treaty does have great constitutional importance (‘paramount importance’, as Lord Denning said in Blackburn’s case; see Miller [159]). Its constitutional importance does nothing to support the proposition that the law prevents the government from exercising its constitutional responsibility for and authority over treaties. That would require a decision to take the power away from the government. Parliament made no such decision, as Lord Reed shows. He ([240]) and Lord Carnwath ([249]-[259]) also show that it was constitutionally unnecessary for Parliament to take away the power, because of the accountability of the government to Parliament. Triggering Article 50, if it were done by prerogative, would be ‘subject to Parliamentary scrutiny in whatever way Parliament chooses’ (Lord Carnwath [264]).

So the ECA 1972 did not take away the government’s authority to trigger Article 50. But now the Supreme Court has done so.

Timothy Endicott, Professor of Legal Philosophy, University of Oxford

(Suggested citation: T. Endicott, ‘A Treaty of Paramount Importance’, U.K. Const. L. Blog (26th Jan 2017) (available at https://ukconstitutionallaw.org/)

11 comments on “Timothy Endicott: A Treaty of Paramount Importance

  1. Dr Patricia Park
    January 26, 2017

    the Miller case was judicial activity in its extreme.

  2. David Howarth
    January 26, 2017

    It doesn’t seem correct to say that the Supreme Court rejected the applicants’ rights arguments. The majority at [83] says that the Divisional Court was ‘also right to hold that changes in domestic rights …. represent another, albeit related, ground for justifying that conclusion’.
    It is certainly true that the ‘change in the sources of law’ argument is expressed in a way that works independently of the fate of specific existing rights (see [80]), but one wonders whether it would have struck the judges with the same force if existing rights had not been affected. At [88], for example, the majority seems particularly impressed by the point that the government was claiming to be able to use the prerogative to reduce ‘the volume and extent of EU law which takes effect domestically to nil without the need for parliamentary approval’.

  3. Peter
    January 26, 2017

    Timothy, you imply that a treaty can affect a change in UK constitutional law. Surely not. It cannot even affect UK domestic law (laws that can be adjudicated in UK courts). Our constitution gives those inside the jurisdiction rights and obligations. No treaty can change those. A treaty is a contract and like all contracts only binds those who have signed it and then only in international courts selected for the purpose. Only domestically enacted laws can affect non signatories to a treaty.
    Treaties that are not incorporated into UK law can grant rights to persons within the jurisdiction but only against a signatory to the treaty and in an international court.
    The EU treaties affected a wholesale delegation of legislative powers. These laws not only granted rights to persons within the jurisdiction but imposed obligations too.
    Such a wholesale delegation of laws cannot be unwound on the say so of a minister. Surely that makes sense. Unless the statute that gave legal affect to the delegation or some other act says that a minister has such a power.
    Makes perfect sense to me.

  4. Chris V
    January 26, 2017

    “So the ECA 1972 did not take away the government’s authority to trigger Article 50. But now the Supreme Court has done so.”

    The courts interpret legislation, so they have confirmed that the authority to trigger article 50 does not rest with the government. The above is just pretty phrase making.

    Lord Carnwath’s comments about the political relationship between government and Parliament are apt. The PM’s decision to invoke royal prerogative and to deny Parliament a say was high-handed. In case we forget, the government is the majority party in Parliament and so the concept of dualism at a political level is nonsense most of the time. Had the PM handled the situation differently and allowed a debate and agreed to a white paper then it is not too fanciful to suggest she could have used royal prerogative without challenge. That Parliament was unable/unwilling to challenge the decision until after the first judgment against the government says little for Parliament.

    So, I want it both ways: to say the government has to involve Parliament else it cannot trigger article 50 and so the majority judgment was right. And to say this was fundamentally a political problem that the government totally mishandled. Would anyone have cared about Parliament passing an act had the government conceded all that it has now done?

    This case strikes me as one of poor political judgment that resulted in a case with little if any practical impact. The refusal of the PM to concede to Parliament a right to have a say was a refusal to recognise what the majority verdict confirmed and as Professor Endicott puts it: “The constitutional importance of this treaty is too great for a minister to cancel it. “

  5. Sean Feeney
    January 26, 2017

    Professor of Legal Philosophy Timothy Endicott turns a Nelsonian eye to what the majority judgment correctly and impeccably said was the second of two things the 1972 Act did at [62] of the judgment: “Secondly, it provided for a new constitutional process for making law in the United Kingdom” – making law, note, and not just the conferral of rights on which Professor Endicott’s argument is premised.

    This was by far the most interesting, intellectually powerful, and correct of the submissions on the claimants’ side (and missing from the original Barber et al blog post) and the reason why it was inevitable that the entirely unconvincing Government’s prerogative-based defence must inevitably fail.

    The reason the 1972 Act incorporating EU law is sui generis, was given by the majority at [68] with express reference to multiple authorities: “The 1972 Act effectively operates as a partial transfer of law-making powers, or an assignment of legislative competences, by Parliament to the EU law-making institutions (so long as Parliament wills it), rather than a statutory delegation of the power to make ancillary regulations – even under a so-called Henry the Eighth clause, as explained in the Public Law Project case, cited above, paras 25 and 26.”

    The majority were, in my view, entirely correct that this is a matter of constitutional principle. It seems to me self-evident that when Parliament gave away its power to legislate only Parliament could authorise the taking back of that power.

    That is why the only possible, and in my view correct, defence was that made by interveners Lawyers for Britain Ltd: that the 2015 Act provided for the UK’s statutory decision to leave the UK to be taken by the electorate specified in the Act and this authorised the giving of notice under Article 50(2.) under the prerogative.

  6. Paul W
    January 26, 2017

    The key paragraph in the majority judgement in Miller is paragraph 61 “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.”

    With hindsight this will be seen to be the correct decision.

    The alternative, classical analysis, looking at the mechanics of treaty making and implementation of treaties into domestic law, was the accepted analysis when the ECA 1972 was passed. Indeed EU law was then analysed as, in effect, subordinate legislation under the ECA. And yet, even then, it was expected that the precedence that EU law was given over future legislation would be recognised by the Courts. Although not expressed as such, it was seen that there had been a transfer of law-making power to the EU institutions.

    The concept of ‘sources of law’ will doubtless be analysed in detail in the light of the Miller judgement. But it is reasonable to consider EU law as an independent, source of law, a position that can only be changed by Act of Parliament. By way of analogy, the union of Scotland and England was effected by treaty, enacted domestically by both English and Scottish parliaments. Initially it might have seemed that the union could be dissolved by another treaty between England and Scotland, and the laws enacted by the UK Parliament might have looked like subordinate legislation under each of the Acts of Union. But clearly UK law now is an independent source of law, not dependent on the enabling legislation. Time changes perceptions.

  7. martycaine
    January 26, 2017

    I do believe that the governing factor in the decision made by the Supreme Court in the Gina Millar case was far more to do with the precedent that would have been set, had they sided with the government in this case. It simply could not ever be right to allow any government to make changes that directly effect the rights of the people without parliaments consent to do so. Parliament is sovereign, not government.

  8. Rodger Harris
    January 30, 2017

    At the risk of being accused of re-stating the obvious, for which apologies in advance, wouldn’t the Supreme Court majority have taken the generalist view adopted by their Dissenting Lordships had the relationship between the EU Treaty not had the effect of giving the substantive rights to individuals, corporates, and Uncle John Cobley et all?
    Had such rights as claimed in Miller existed in the Protocol 3 Crown Dependencies there would have been an outcry against only the UK electorate taking the decision in flagrant disregard for such, admittedly inexistent rights. The combination of a separate British citizenship and the Protocol 3 arrangements effectively excluded any participation, as the movement of agricultural goods is done on a self financing basis not under the subsidy régime of the CAP.
    Here the OCTs, for which Britain sometimes forgets its responsibility, might have an issue to defend as their relationships with the EU and the TFEU markets are fixed in an EU Council Decision, regularly reviewed which does give both directly applicable and effective rights of the Miller variety, and in fact of a greater extent.

  9. Pingback: Why an Act of Parliament is Required before Brexit is Formally Launched, by Peter Oliver – blogdroiteuropéen

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