affiliated to the International Association of Constitutional Law
It is clear from the majority judgment in Miller, and also from several blog comments since, that the judgment’s linchpin is that the 1972 Act “provided that [EU] rights, duties and rules…apply in the UK as part of domestic law” (). This, along with the EU institutions being the source of the ‘domestic law’ coming from the EU, was the most “realistic” way of looking at things. This is in sharp contrast to Lord Reed’s ‘beautiful’ and, if there were a Nobel prize for law, prize winning construction of the 1972 Act, which is, in addition to being unrealistic, too old fashioned for most EU lawyers.
It is interesting that not only is Lord Reed’s approach the one normally preferred of a constitutional court, namely it begins with the meaning of constitutional provisions before drawing conclusions about their consequences, but it also accords with what was the original understanding about the relationship between EU law and ‘domestic law’ back in the 1970s. For example, in an important article in no less than the LQR in 1977, Sir Jean-Pierre Warner – the UK’s first Advocate General in the Luxembourg Court – wrote that, “It is not quite true to say…that Community law ‘has become part of English law’…though it would be true to say that it has become ‘part of the law of England’” (The Relationship Between EC Law and the National Laws of the Member States (1977) 93 LQR 349, 351). Given the terms of s.2 of the 1972 Act, this is plainly not just a semantic distinction.
In particular, it is striking, though now of only historic academic interest, that s.2(1) of the 1972 Act does not just say that EU law shall ‘have effect’. Politics aside, nothing could have been simpler than just saying that and allowing the straightforward conclusion that provisions in the EU Treaties and other rules and principles arising under them are part of ‘domestic law’. However, s.2(1) takes a circuitous path, saying first that EU rights, remedies, etc. “provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given effect or used in the UK”; then, crucially, that they “shall be recognized and available in law…”. It is hard to resist the conclusion that Sir Jean-Pierre’s point has force: that there is a material distinction between, on the one hand, the law of Scotland, England and Wales and Northern Ireland, including EU rules transposed pursuant to s.2(2) of the 1972 Act (all domestic law stricto sensu); and the law in force throughout the UK, namely, in addition to domestic law, EU law which is, as in accordance with the Treaties, given effect and recognized and available in law.
Indeed this, rather than the Miller majority’s “more fundamental sense” about sources of law, is what is truly fundamental about the effect – and genius – of the 1972 Act. It is by maintaining a distinction between domestic law and the law in force in the UK that Parliament achieved what was ultimately essential for our membership of the EU: any conflict between domestic law and the EU law in force throughout the UK (including, for example, directly effective directives defectively transposed) had to be resolved in favour of the latter. That would not have been as easy to resolve as it eventually was, if EU law was just part of ‘domestic law’.
The great pity about Miller is that the bold, constitutional scholarship on the relationship between EU law and domestic constitutional law contained in HS2 has crashed. Only if we end up staying in the EU will a future Supreme Court have to reconcile the Miller majority’s revisionism with HS2. In that event, one can foresee some back-tracking to some old fashioned statutory construction of the 1972 Act – and a little bit of history repeating.
Denis Edwards, Advocate, Barrister, Chinese University of Hong Kong
(Suggested citation: D. Edwards, ‘Miller, Law and Revisionism’, U.K. Const. L. Blog (9th Feb 2017) (available at https://ukconstitutionallaw.org/))