Of all the criticisms levelled by elements of the press and others at the judgment of the Supreme Court in Miller II and Cherry, perhaps the least convincing is that the Justices are pro-EU. It has been widely pointed out that we have no idea whether, and if so how, the Justices voted in the 2016 referendum. Rather less attention has been paid to the case law of the Supreme Court, which reveals its general attitude towards the EU to be a somewhat frosty one.

As an apex court, the Supreme Court is in principle obliged by the third paragraph of Article 267 TFEU to refer to the European Court of Justice (ECJ) questions of EU law that need to be decided before judgment can be given. That obligation is qualified where the answer is clear (‘acte clair’), but that conclusion may only be reached where strict conditions are met.

Between its establishment in 2009 and the end of 2018, the Supreme Court made 15 references to the ECJ under Article 267. It has sometimes been highly critical of the ECJ’s response to the questions put to it. As a consequence, the Supreme Court now approaches Article 267 as if, like lower courts, it has a discretion whether or not to make references to the ECJ. A small number of cases will suffice to demonstrate the point.

The Supreme Court’s EU case law

HS2 concerned the interpretation of two EU directives on environmental protection and raised questions about the parliamentary process. The ECJ had held that the word ‘required’ in the first directive meant ‘regulated’ and the word ‘since’ in the second directive meant ‘provided that’. Both interpretations seemed to the Supreme Court to be contrary to the language used by the Union legislator.

In a joint judgment with which all the other Justices agreed, Lord Neuberger and Lord Mance said (para 171):

‘Where the legislature has agreed a clearly expressed measure, reflecting the legislators’ choices and compromises in order to achieve agreement, it is not for courts to rewrite the legislation, to extend or “improve” it in respects which the legislator clearly did not intend.’

If people could not be certain, they continued, that EU legislation meant what it said, they might lose confidence in EU law and the relationship between national courts and the ECJ might be undermined. This might make it more difficult in the future to reach agreement on new legislation.

With regard to the second directive in particular, Lord Neuberger and Lord Mance observed (para 196): ‘it is difficult to see why it should be supposed that the Council of Ministers as the European legislator…intended the word “since” to have anything other than its ordinary meaning.’ This particular issue gave rise to a deeper concern about ‘the fundamental institutions of national democracy in Europe’ (para 202). They pointed out that ‘Article 9 of the Bill of Rights, one of the pillars of [the] constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament’ (para 203). Examination of the workings of Parliament and enquiring whether they met requirements imposed from the outside would clearly involve ‘questioning and potentially impeaching (i.e. condemning) Parliament’s internal proceedings, and would go a considerable step further than any United Kingdom court has ever gone’ (para 206). It was,

‘putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation’ (para 207).

Lord Mance (with whom Lord Neuberger, Lady Hale and Lord Wilson agreed) returned to some of these issues in Pham v Secretary of State, which concerned the question whether, under the British Nationality Act 1981, the Secretary of State could deprive a suspected terrorist of British citizenship where doing do would render him stateless and mean that he lost EU citizenship too.

Laws LJ had observed in R (G1) v Secretary of State: ‘The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution’s participants.’ If the ECJ sought to interfere in such matters, UK courts might have to consider whether the European Communities Act had conferred on it authority to do so.

Lord Mance agreed (para 80):

‘European law is certainly special and represents a remarkable development in the world’s legal history. But, unless and until the rule of recognition by which we shape our decisions is altered, we must view the United Kingdom as independent, Parliament as sovereign and European law as part of domestic law because Parliament has so willed. The question how far Parliament has so willed is thus determined by construing the 1972 Act.’

He went on:

‘A domestic court faces a particular dilemma if, in the face of the clear language of a Treaty and of associated declarations and decisions…the Court of Justice reaches a decision which oversteps jurisdictional limits which Member States have clearly set at the European Treaty level and which are reflected domestically in their constitutional arrangements. But, unless the Court of Justice has had conferred upon it under domestic law unlimited as well as unappealable power to determine and expand the scope of European law, irrespective of what the Member States clearly agreed, a domestic court must ultimately decide for itself what is consistent with its own domestic constitutional arrangements, including in the case of the 1972 Act what jurisdictional limits exist under the European Treaties and upon the competence conferred on European institutions including the Court of Justice.’

To avoid problems, it was necessary ‘that all concerned should act with mutual respect and with caution in areas where Member States’ constitutional identity is or may be engaged…’

The approach of Lady Hale

The President of the Supreme Court, Lady Hale, has contributed to the emergence of the approach outlined above. Re A (A Child) raised questions about the effect of Regulation 2201/2003 concerning matrimonial matters and parental responsibility. Lady Hale (with whom the majority of the Court agreed) considered it possible that the High Court might be able to resolve the case under its inherent jurisdiction at common law, something the High Court had not initially considered. The case was therefore remitted to the High Court for consideration of whether its inherent jurisdiction should be exercised. Only if the High Court decided not to do this would it be necessary to address the meaning of Regulation 2201/2003. The High Court duly obliged and the need to make a reference to the ECJ was artfully avoided.

A reference might have been made in Re N (Children), another case concerning Regulation 2201/2003. One of the issues the Supreme Court had to decide was whether Article 15 of that Regulation applied to public law care proceedings. That question had been referred to the ECJ by the Irish Supreme Court in Child and Family Agency v JD, which was pending when the UK Supreme Court gave judgment.

Lady Hale (giving the judgment of the Supreme Court) said the question whether Article 15 applied to public law proceedings

‘cannot be regarded as acte clair. This court has to decide whether to make its own reference of essentially the same question that the Supreme Court of Ireland has already referred; whether to delay its decision until the outcome of that reference is known; or whether to proceed on the assumption that article 15 is capable of applying to public law proceedings and review the decisions of the courts below on their merits’ (para 54).

She found the third option ‘infinitely preferable to the other two’ as ‘[t]hese proceedings have already taken far too long.’ She therefore said that she would ‘proceed on the basis that the meaning of article 15.1 is acte clair, albeit not yet éclairé, and we are merely applying it to the facts of the case, which is the task of the national courts.’

Whatever its other advantages, this option involved a clear breach of the obligation to refer given that Lady Hale had accepted that Article 15 was not in fact acte clair. She may, however, have experienced a sense of vindication when, around six months later, the ECJ’s judgment in JD reached effectively the same conclusion as she had done on the correct interpretation of the Regulation.

Three lessons

Three lessons may be drawn from this small, but not unrepresentative, selection of Supreme Court judgments in cases involving EU law. First, the Supreme Court  does not consider the ECJ a reliable interlocutor. Secondly, and as a consequence, the Supreme Court is willing to disregard the requirements of Article 267 in order to achieve what it considers to be the right result. Thirdly, the Supreme Court, like the apex courts of other Member States, is keen to retain the last word on its domestic constitutional requirements and the limits they might impose on the competence of the ECJ. Whatever we may think of this approach, it is evidently not that of a pro-EU court.

As for the judgment in Miller II and Cherry, we may safely conclude that it is what it says on the tin: a ruling on the existence, limits and justiciability of a prerogative power.

Anthony Arnull (@anthonyarnull) is Barber Professor of Jurisprudence, University of Birmingham, and the author of ‘The UK Supreme Court and References to the CJEU’ (2017) 36 Yearbook of European Law 314.

(Suggested citation: A. Arnull, ‘Is the UK Supreme Court Pro-EU?’, U.K. Const. L. Blog (3rd Oct. 2019) (available at https://ukconstitutionallaw.org/))