UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Oliver Garner: Conditional Primacy of EU Law: The United Kingdom Supreme Court’s Own “Solange (so long as)” Doctrine?

oliver-garnerIn circumstances of “normal” membership of the European Union, the UK Supreme Court’s dicta in the Miller judgment that EU law is an “independent and overriding source of domestic law” [Paragraph 65] may well have caused a constitutional storm. In the current unprecedented tempest of Brexit, however, Lord Neuberger’s announcement of this statement passed as little more than a side-wind. This short post will briefly turn the magnifying glass on this judicial formulation, which will be labelled the “conditional primacy” of EU law within the United Kingdom’s domestic constitutional order.

The majority’s statement on the status of EU law can be read as a ringing endorsement of the Court of Justice of the European Union’s claims that, in cases of conflict between EU law norms and domestic law norms, the former must take precedence (Costa v. ENEL). Indeed, the Supreme Court even refers to the two labels which have been attributed to this doctrine: “primacy” of EU law at Paragraph 66, and “supremacy” at Paragraph 81.

Therefore, in the twilight of the United Kingdom’s membership of the European Union, has the Supreme Court finally accepted Sir William Wade’s argument that a “constitutional revolution” occurred in 1973 by which the EU institutions rather than Parliament become sovereign? Not quite. For the majority judgment provides a crucial qualification to the supreme status of the source of EU law: “Of course, consistently with the principle of Parliamentary Sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute” (Paragraph 61; emphasis added).

This “so long as” formulation, repeated 7 more times from Paragraphs 60-68, bears a constitutionally familiar resemblance to the German Constitutional Court’s famous “Solange” doctrine whereby EU law is only binding domestically so long as it complies with substantive provisions of the German Basic Law. By predicating the status of the source of EU law on the continuing force of the European Communities Act 1972, the Supreme Court manages an impressive compromise: although the individual norms of the source of EU law currently take precedence in the domestic legal order, the supremacy of the source itself of EU law could never have the same ostensibly unconditional and absolute status as the source of parliamentary legislation.

The Supreme Court’s own “Solange” doctrine may well become a footnote in the legal history of the United Kingdom’s membership of the European Union. However, beyond the borders of the UK legal order, the Supreme Court’s reconciliation of two apparently fundamentally conflicting principles could well prove to be a source of inspiration for the courts of the remaining EU Member States in their continuing constitutional challenges to square the supremacy of EU law with internal national sovereignty.

Oliver Garner, European University Institute

(Suggested citation: O. Garner, ‘Conditional Primacy of EU Law: The United Kingdom Supreme Court’s Own “Solange (so long as)” Doctrine?’, U.K. Const. L. Blog (31st Jan 2017) (available at https://ukconstitutionallaw.org/))

9 comments on “Oliver Garner: Conditional Primacy of EU Law: The United Kingdom Supreme Court’s Own “Solange (so long as)” Doctrine?

  1. Pavlos Eleftheriadis
    January 31, 2017

    Pham and HS2 have said the same thing. There is nothing new in Miller on how the UK Courts see EU law.

  2. Sean Feeney
    January 31, 2017

    There is no “constitutional storm”, just an entirely correct literal reading of the well-known duties in section 3(1) of the 1972 act.

  3. Oliver Garner
    February 1, 2017

    Thank you both for your comments. I agree that the position in Miller is not so far removed from the stream of case-law starting with Factortame and flowing through HS2, and Pham. Indeed, for this reason amongst others, I would label Miller a very constitutionally orthodox judgment.

    However, I would argue that the real added value of what I label the conditional primacy doctrine is how explicit the Supreme Court has now made their reading of EU law. The point of the short piece is to draw an analogy between this formulation and the use of the famous “Solange” doctrine in the constitutional jurisprudence of Germany. These analogous “so long as” formulations from paragraphs 60-68 of the judgment extend to many of the aspects of what have been called the European Union’s “juridical constitution”. Thus, this may be regarded as an unprecedented statement of the UK Supreme Court’s holistic acceptance of these features, as opposed to piecemeal acceptance.

    Indeed, this explicit clarity in the majority judgment extends far beyond the place of EU law to many of the commonly held implicit assumptions regarding the United Kingdom’s constitution. Hopefully this clarity will prove to be useful in the turbulent times to come.

    Finally, the piece does not claim that there was a “constitutional storm”. The concept is used as a counter-factual for what may have occurred in a less tempestuous time for UK membership of the European Union. The “literal reading of the well-known duties in section 3(1) of the 1972 Act” may appear “entirely correct” to those who carefully read Acts of Parliament and the judicial pronouncements upon them. However, as evidenced by the tabloid media’s reaction to the High Court judgment in Miller, I would stand by my claim that such a statement on the nature of EU law as being “independent and overriding” could well have been liable to flare tempers, both in the media and amongst some of the more ideological of the United Kingdom’s parliamentarians.

  4. Sean Feeney
    February 2, 2017

    Thanks Oliver.

    I think your original contention was clear and requires no further elucidation in light of my criticism: In normal circumstances (ie sans Brexit) the dicta in Miller “may well have caused a constitutional storm”.

    That is rhetorical speculation (signalled by “may”) not some kind of rigorous analytic argument, as suggested by your claim of a “counter-factual “; my criticism remains this is baseless on an obviously correct statutory construction.

    You yourself seem unable to reach any analytic conclusion simply making the qualified acknowledgement (signalled again by “may”): “The “literal reading of the well-known duties in section 3(1) of the 1972 Act” may appear “entirely correct” to those who carefully read Acts of Parliament and the judicial pronouncements upon them.”

    You use this statement to shift the grounds of debate (signalled by “However”) to inconclude [sic] this “could well have been liable to flare tempers, both in the media and amongst some of the more ideological of the United Kingdom’s parliamentarians.”

    That inconclusion appears nowhere in your original post

    It also seems irrelevant to me in a blogsite of an Association whose object is to “‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’.”

    Surely this means this blogsite is intended for “those who carefully read Acts of Parliament and the judicial pronouncements upon them”?

    • Oliver Garner
      February 3, 2017

      Stephen, I believe that you are quite correct that this blog is intended for those who carefully read legislation and judgments. However, the promulgation of such legislation and judgments does not take place within a vacuum. It always takes place within the context of a society. For this reason, I believe it is not inappropriate to take into consideration the societal effects, hypothetical or not, of pronouncements such as Lord Neuberger’s on the nature of EU law.

      Furthermore, you are also quite correct that my statements were “rhetorical speculation” as evidenced, as you also quite correctly identify, by my use of the past conditional tense. Such rhetorical speculation, however, served only to introduce the societal context within which the issue that I address takes place. Although this may have formed the (in)conclusion of my reply to you, it does not form part of the conclusion of the analysis in the piece. The analytical conclusion is that the UK Supreme Court in Miller has made explicit the manner in which it reconciles the doctrine of the primacy of EU law with the domestic constitutional doctrine of Parliamentary Sovereignty.

      Of course, I then move back to the hypothetical, through the use of the future conditional tense, to consider whether this reconciliation could prove to be useful for the constitutional courts of other Member States when faced with similar tensions. I hope that this fits within the object of the blog to “encourage and promote the advancement of knowledge relating to… the study of constitutions generally.”

      Thank you for your rigorous critique of the analytical form of my argument. I would also look forward to any future useful critique on the substance.

      All the best, Oliver.

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

  6. Armchair Lawyer
    March 25, 2017

    Have a look at Case 11/70, re: an alleged violation of the German national Basic Law by a Community regulation. It was ruled by the ECJ/CJEU that

    “No provision of municipal [read: ‘national’] law may prevail over a Community law. The validity of a Community act or its application remains unimpaired, even if it is alleged that the basic rights of the national constitution were violated”

    The old West Germany sulked and dragged its feet for some while, but eventually fell in line.

    Not totally sure of the source, but I saw it in a library book, which would have been Law & the Institutions of the European Union, Lasok & Bridge (Butterworths, 1994)
    or European Community Law, Charlesworth & Cullen (Pitmans Publishing, 1994)

    • ogarner
      May 25, 2017

      Thank you very much for this interesting reference.

      Best,

      Oliver

  7. Mustafa
    May 17, 2017

    Hi Oliver,

    What I don’t understand is with regards to the Miller judgement, what does the argument of the minority have anything to do with supremacy per se? Would appreciate your help on the matter. Because they discuss the idea of why the prerogative can override the ECA as its simply a treaty etc but what do you think this has to do with supremacy?

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