The judgments in Miller highlight the fact that the common law has never managed to arrive at a satisfactory intellectual framework for European law. I will focus first on Lord Reed’s dissent. On Lord Reed’s account, the situation is simpler than anyone who had observed UK and EU law for the past 45 years could have imagined. The UK takes a dualist approach to international law, and EU law is international law. Once this characterisation is accepted the case is over.

This dissent could have been written 100 years ago. It takes no account of the supremacy and unique features of EU law, finally accepted over 25 years ago by the House of Lords in Factortame No. 2. For the famously flexible UK political constitution to be incapable of acknowledging the enormous European cuckoo that has sat growing in its nest for five decades seems almost wilfully obtuse. Lord Reed cites Blackburn v AG – a case about, but decided prior to, EEC membership – as support for his dualist account of the nature of European law [183]. He ignores, however, Lord Denning’s key obiter dictum in that short judgment: that legal theory must keep up with the facts.

“We have all been brought up to believe that, in legal theory, on Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. … Can anyone imagine that Parliament could or would reverse [the Statute of Westminster]?”

Unlike Lord Reed, the majority, to my mind, get the decision and the common law constitutional principles right. But in accepting early on the metaphor of the European Communities Act 1972 (ECA) as a ‘conduit pipe’, which originated with Professor John Finnis who was in fact arguing against their position, they make a similar error and get the EU law bit wrong. This is an object lesson in the power metaphors can have over legal reasoning, for good or bad. The majority tie themselves in knots trying to explain why, counter-intuitively, the ECA is a ‘pipe’ that also ‘… constitutes EU law as an entirely new, independent and overriding source of domestic law …’ [80]. Even the most imaginative lawyers (and plumbers) would struggle with this. Once you dump the pipe analogy, the majority argument becomes more convincing. Following the ECA, European law has special status – it is sui generis domestic law – and for that reason, by analogy, the common law jurisprudence on the relationship between statute and the prerogative applies to the relationship between European law and the prerogative. The majority bolster their case by an appeal to broader constitutional principle: this is just too big a decision and too big a change to the constitution to be left to the prerogative. Only the supreme and sovereign Parliament can, through a statute, trigger this change.

This argument offers a more realistic account of EU law than Lord Reed’s alternative. For me it is the right decision despite some flaws in argumentation, but there is no doubt that it depends on an appeal to constitutional principle and to the special nature of EU law itself rather than limiting itself to orthodox statutory construction. It is not hard to see why those who doubt the merits of such an approach have found the reasoning of the majority unconvincing. But perhaps it is fitting that the same conceptual ambiguities that have bedevilled the relationship between UK and EU law since 1972 have risen for their encore in Miller, just as the curtain falls on that relationship.

Dr Patrick O’Brien, LSE Fellow in Public Law

(Suggested citation: P. O’Brien, ‘All for Want of a Metaphor: Miller and the Nature of EU Law’, U.K. Const. L. Blog (30th Jan 2017) (available at https://ukconstitutionallaw.org/))