UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

David Howarth: The Government’s Fatal Concession in Miller

david-howarthAfter days of oral argument, lorry-loads of authorities and a 96 page judgment, one question still bothers me. Why did the government concede (see the Supreme Court’s judgment at [74]) that invoking article 50 would lead to a loss of what the Divisional Court called ‘category one’ rights: those derived from EU law but straightforwardly replicable in the UK’s own legal system? In the end, that concession was fatal. The majority (at [73]) says that the applicants’ case rests solely on the loss of category one rights and that it was unnecessary to consider the other categories.

The heart of the problem seems to be that the government went along with a view of s. 2 of the ECA 1972 that sharply differentiates between s. 2(1) and s. 2(2) (see Day Two Transcript at pp 49-54). According to this view, authority for incorporating EU Regulations into UK law under s. 2(1) disappears at the point of UK exit and nothing remains of their legal effect from that moment. Authority for the transposition of Directives under s. 2(2), however, carries on after Brexit, so that legislation made under s. 2(2) continues to be valid as long as s 2(2) itself continues in force. No discussion of this distinction seems to have occurred, presumably because the applicants had no interest in challenging so obviously damaging a concession. One can only speculate that it depends on reading the words ‘are … to be given effect… as in accordance with the Treaties’ in s. 2(1) as creating a temporary state of affairs, while reading ‘for the purpose of implementing any EU obligation’ in s. 2(2) as referring to obligations as they existed at the time.

One can construe s. 2(1) very differently, so that it gives effect to EU Regulations from the point the EU makes them for as long as they remain EU Regulations, not for as long as the UK remains a member. On this view, being ‘given effect’ is an event not state of affairs and ‘in accordance with the treaties’ refers to when the Regulations were made, not to any subsequent time. As a result, no ‘category one’ rights and obligations would be lost by Brexit.

The ‘event’ interpretation of s. 2(1) has several advantages: it brings s. 2(1) and s. 2(2) into harmony; it promotes legal certainty; and it is consonant with article 70 of the Vienna Convention on the Law of Treaties, which provides that withdrawal from a treaty ‘does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination’.

An argument against the ‘event’ interpretation is that it raises the difficult problem of what to do about references in Regulations to EU institutions from which the UK would be excluded after Brexit. But the same issue arises with regard to Directives transposed under s 2(2). Statutory instruments made under s. 2(2) often refer, for example, to the European Commission. In any case, an interpretation that leaves a few provisions incapable of implementation seems inherently superior to one that voids vast numbers of provisions.

Was the government’s omission of the ‘event’ interpretation of s 2(1) simply a mistake or was it a conscious decision? And if the latter, were political factors at work as in the government’s concession on revocability? The ‘event’ interpretation has the political disadvantage of seeming to extend the EU’s direct legislative authority into the post-Brexit era, but so does the ‘event’ interpretation of s. 2(2). Perhaps the government just wanted to avoid being seen to adopt arguments that would greatly diminish the significance of the ‘Great Repeal Bill’. But that seems a trivial reason for making a fatal concession.

If anyone has a convincing explanation of why the government did not raise the ‘event’ interpretation of s. 2(1) I would be very grateful to hear it.

(Suggested citation: D. Howarth, ‘The Government’s Fatal Concession in Miller‘, U.K. Const. L. Blog (27th Jan 2016) (available at https://ukconstitutionallaw.org/))

8 comments on “David Howarth: The Government’s Fatal Concession in Miller

  1. Mike Fearon
    January 27, 2017

    I have made this point about the continuing effects of s2 (1) in the blog numerous times, and it has always been ignored.

    This interpretation of continuity until repeal also calls into question the rationale of the Great Repeal Bill, which becomes a waste of time for a large number of lawyers and for Parliament, at substantial cost to the taxpayer, as I suggested in response to Sionaidh Douglas Scott, who either didn’t read, or didn’t respond to, the comment.

    It is not only the government, but the legal profession generally which have, for some reason, not favoured this perfectly valid interpretation. As I have said before – I despair.

  2. Sean Feeney
    January 27, 2017

    The reasons for the majority judgment were multiple, and the majority thought they were reinforcing reasons. The judgment did not rest on the rights argument alone. Therefore, the conclusion that this single concession was fatal appears to be false.

    Though the difference between the majority and the minority (they were agreed on the referendum, wrongly) ultimately must rest on the interpretation of the 1972 Act which is where the academic discussion might head.

  3. Chris V
    January 27, 2017

    Interesting. If one accepts the ambulatory or conduit argument then the source is the treaties and so is subject to royal prerogative. If the rights exist regardless of the treaty then, possibly, they are part of UK law and cannot be changed by royal prerogative. Does that explain the strategy?

  4. Marty Caine
    January 27, 2017

    The best example of rights loss after Brexit is Freedom of Movement, whilst members of the EU the people of Britain have the right to live and work anywhere in any of the 28 countries within the EU, once we leave they will lose the right to do so. It would have been extremely precarious for the supreme court to set a precedent that allowed any government to make changes that removed people’s rights without parliamentary consent.

    I am a little confused about the reference to the Vienna Convention though because I thought that VCLT only applied to State to State treaties and did not cover intergovernmental organisations such as the EU. This is why in 1983 the VCLT was extended with the VCLTIO but I do not think that has been ratified and is still awaiting signatures from at least three states, as such it is not actually in power yet.

  5. David Howarth
    January 28, 2017

    Chris V – thank you for that suggestion. Yes that is right, The puzzle is that it seems very odd actively to want to establish the existence a power to change the law by prerogative purely as a matter of principle to the extent that one is prepared to damage one’s chances of winning such an important case.

    Sean Feeney – you are right that the ‘source of law’ argument provides a route to the result independent of the rights route (though the concession is certainly fatal on the rights route) but I wonder whether the majority would have stayed together if only the source of law route had been available. It’s an obvious way to write a consensus judgment to include all the available routes to the result as equal partners.

    Mike Fearon – I agree that the ‘event’ interpretation removes most of the point of the Great Repeal Bill – which is why I wondered whether that might have provided a political reason for the government’s failure to use it. I’m not sure, however, that the legal profession as a whole would have minded if the GRB were slimmed down to dealing only with the ‘dynamic’ aspects of Brexit. All it would really mean is that the Office of Parliamentary Counsel would have had less work to do on the GRB and so would have had more time to work on other legislation, the volume of which would presumably have increased.

    • Chris V
      February 1, 2017

      Also interesting that after 44 years we still struggle to explain the relationship of EU to UK law. As a recent blog remarks, the majority referred to the conduit analogy, even though that was advanced by professor Finnis in support of royal prerogative.

  6. Rodger Harris
    January 30, 2017

    There may be room for further reflection in the principle of what is the form taken by the rights in question – s. 2(1) or 2(2) ECA or in fact other sources not addressed in the 1972 Act, but which are assumed by the EU organ in their dealing withe Member States on a politically conferred basis for example at the Council or consilium level.

    S. 2(2) does not cover the full panoply of implementing acts at all, for example, it makes no reference to Acts of Parliament in tax matters, VAT being the most prominent Community resource in question, and the extra-Treaty implementation of corporate tax harmonisation, another “extra curricular” measure outside the Union Treaty has to be done outside s 2(2). That type of issue is outside the scope of Miller and the Claimants arguments.

    The categorisation of rights, and incidentally obligations used in the pleadings is a bit weird and of marginal significance if taken in a general context.

    For example, the implementation of directives is not necessarily covered by Orders in Council or subordinate implementation administrative measures as defined s 2 (2), which only address a small part of the administrative implementation of the rights to which reference is being made. Direct effect, as distinct from applicability is either accepted by the executive, or enforced by the Courts.
    To analyse those issues, going back to the Treaty or UK “root” of the right is essential.
    In short “conduit” rights are not the only issues in question.

  7. Pingback: Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: