UK Constitutional Law Association

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Patrick O’Brien: All for Want of a Metaphor: Miller and the Nature of EU Law

patrick-obrienThe 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/))

8 comments on “Patrick O’Brien: All for Want of a Metaphor: Miller and the Nature of EU Law

  1. markpummell
    January 30, 2017

    good piece Patrick… what are your thoughts as regards the ‘rule of recognition’ matters… also confusing/confused!!!

  2. Chris V
    January 30, 2017

    The trigger was another metaphor/analogy that caused confusion. On the reasoning adopted putting poison in a cup for someone to drink is not a crime because having done so there is no immediate effect. Save us from overly literal judges.

  3. Sean Feeney
    January 30, 2017

    The majority correctly affirmed one of the claimants’ two conceptualizations of the most striking features of 1972 Act and ratification of the Treaties 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 claimants thereby implicitly made good their claim that EU law is a sui generis exception to the classic conceptualization of dualism.

    The 1972 Act and the ratification of the treaties, working in tandem, must now be seen as a new constitutional settlement that altered the separation of powers by settling some of Parliament’s legislative power on the “EU law-making institutions (so long as Parliament wills it)”.

  4. celticknotblog
    February 1, 2017

    Thank you for this.

    Over the last few months, I have read some very erudite, but ultimately unconvincing pieces, both here and elsewhere (for elsewhere, read https://publiclawforeveryone.com/ and https://spinninghugo.wordpress.com/). Essentially, it has felt as though the arguments put forward that the government was correct were intellectually clever arguments on narrow and technical points such as analogies with double tax treaties or metaphors about conduits; by contrast, the arguments put forward that Miller was correct were broad-brush constitutional arguments; and it always seemed to me more probable that our Supreme Court would prefer intellectually coherent constitutional arguments to intellectually clever technical ones.

    Moreover, it has seemed to me that there has always been this fundamental problem with any legal argument that seeks at its conclusion to support the use of the prerogative on the basis that EU law operates on the international plain: even the most hardened Brexiteer (perhaps one might say especially the most hardened Brexiteer) does not for one moment believe that EU law does not affect their lives and their rights here in the UK. On the contrary, many will have voted as they did precisely because of the effect of EU law on their lives and their rights here in the UK. And since Remainers and Brexiteers alike understand the domestic effect of EU law, the Supreme Court was right to give a judgment grounded in constitutional reality rather than a legal fiction.

    I applaud O’Brien for getting to the nub of the matter in this piece: even if metaphors about conduits and sources ultimately break, the soundness of the legal reasoning does not depend upon how far the metaphor can be stretched before breaking. Those narrow technical arguments that ultimately failed seem far too dependent upon metaphor.

  5. Israel Negrón
    February 6, 2017

    Good piece!

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

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