UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Pavlos Eleftheriadis: The Systematic Constitution

pavlos-eleftheriadisThe Supreme Court judgment in Gina Miller is not merely an affirmation of what the High Court said. The eight member majority confirmed the earlier decision, but also took the opportunity to restate a fundamental principle, which had been left implicit by the court below. The High Court said that the substantive rights arising out of EU law and the European Communities Act 1972, in employment, environment, consumer protection, competition or free movement, could not be abolished merely by the exercise of the royal prerogative. This was a standard interpretation of existing law, adapted for the context of Article 50. The Supreme Court accepted that this was correct, but added one additional reason.

The Court accepted that membership in the European Union is not merely an act of alliance with other states or an “international” decision. It marks the transformation of a state’s legal order. Membership means that any law made in cooperation with those other states through EU institutions becomes without any intervening step the law of the land. So the European Communities Act 1972 did not merely mark the incorporation of some existing or future identifiable substantive rights, for example in employment, equality, environmental or consumer law. It also marked the creation of a new law-making process.

Withdrawal from the EU under Article 50 will abolish the substantive EU law rights already created. But it will also abolish the cooperative law-making process. This was a further reason to reject the government’s submissions. Such constitutionally significant change, the Supreme Court held, could not happen through exercising the Royal Prerogative. The Supreme Court’s majority says, at par.82, that their conclusion follows from “the ordinary application of basic concepts of constitutional law to the present case”.

It sounds mundane but it is not. It puts beyond doubt something that many have doubted: constitutional change cannot happen in the United Kingdom through practice, evolution or change of opinion, as some constitutional theorists believe. Constitutional change can only happen through the proper channels of democratic law making. This is not said anywhere explicitly in our unwritten constitution, but is now held by the Supreme Court to be true as a “basic concept” of the constitution. The Court’s decision is thus a restatement of the idea that the rules and principles of the constitution have a systematic coherence.

This idea is not new. Since the HS2 judgment, some acts have been held to be so constitutionally important that “implied repeal” is not enough to set them aside. Parliament can only repeal them explicitly. The Supreme Court applied this doctrine to the question of Brexit, making the government’s defeat heavier than it had been at the High Court. Having now said that Brexit is a constitutional matter, it follows that an “implied repeal” of the European Communities Act 1972 will not be enough.

Pavlos Eleftheriadis is a fellow of Mansfield College, Oxford and a barrister at Francis Taylor Building.

(Suggested citation: P. Eleftheriadis, ‘The Systematic Constitution’, U.K. Const. L. Blog (30th Jan 2017) (available at https://ukconstitutionallaw.org/))

4 comments on “Pavlos Eleftheriadis: The Systematic Constitution

  1. John Hartigan
    January 30, 2017

    The process of constitutional change has been clarified to some extent, but the blind spot with respect to the role of the electorate in constitutional change – the implied or explicit consent of the people – remains.

    Consent of the electorate, via victorious general election manifesto pledges, provides the fundamental democratic basis for constitutional change.

    This was also the case when Ted Heath took us into Europe. The 1970 Conservative Party general election manifesto pledged:

    “If we can negotiate the right terms, we believe that it would be in the long-term interest of the British people for Britain to join the European Economic Community, and that it would make a major contribution to both the prosperity and the security of our country.”

    This is argued in more detail in Chapter 3 of Betrayal of Britain which has now been serialised in full and free to read

  2. Dr Mike Tremblay
    January 30, 2017

    If as you say Brexit has constitutional importance, how can a referendum vote of 52/48 to leave have sufficient constitutional weight to trigger the process in the first place? Seems to be if a high hurdle is needed to ‘do’ the actions to leave, similar high hurdles should apply to making that decision in the first place. At least to avoid acting on a whim.

    If one construes such a vote split as a whim (it just might be), then shouldn’t Parliament ensure (conduct due diligence) that it is not participating in groupthink to leave based on that whim? And we know from history the consequences of groupthink.

  3. Sean Feeney
    January 30, 2017

    The majority’s judgment should be viewed as implicitly interpreting the UK’s EU membership – by ratification of the treaties in tandem with domestic implementation via the 1972 Act – as a new constitutional settlement.

    See [68] of the majority’s judgment, 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 have effectively found the separation of powers has been altered by settling some of Parliament’s legislative power on the “EU law-making institutions (so long as Parliament wills it)”.

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

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