Covering the Bases: Miller and the European Union (Notification of Withdrawal) Bill

Readers will be interested to note that the bill that responds to the UK Supreme Court’s judgment in Miller has now been published. The European Union (Notification of Withdrawal) Bill contains one substantive section, which provides:

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

Some have asked what the purpose of s. 1(2) is. As I explained in my post on Tuesday, the authorisation legislation needs to cover the two distinct bases of the Miller decision: the government did not have the power under the prerogative to issue the Article 50 notice because the effect of doing so would be (1) to remove EU law as a source of law and (2) to eliminate rights currently enjoyed by individuals in the UK. Specifying that the Article 50 notification can be sent notwithstanding the 1972 Act covers the first basis of decision while the reference to “any other enactment” is designed to cover the second basis of decision by making clear Parliament’s intention to permit the executive to eliminate EU law rights contained in pieces of legislation that will be emptied of content by Britain’s departure from the European Union. It would be safer to identify these pieces of legislation individually but doing so would be politically controversial and, in a context in which everyone knows what Parliament is trying to achieve, potentially unnecessary.

Let me turn now to a different question, whether the first basis of decision is solid. Admittedly, the first basis of decision is a somewhat novel one: that EU law is a source of law that would be removed by the Article 50 notification:

One of the most fundamental functions of the constitution of any state is to identify the sources of its law. And, as explained in paras 61 to 66 above, the 1972 Act effectively constitutes EU law as an entirely new, independent and overriding source of domestic law, and the Court of Justice as a source of binding judicial decisions about its meaning. This proposition is indeed inherent in the Secretary of State’s metaphor of the 1972 Act as a conduit pipe by which EU law is brought into the domestic UK law. Upon the United Kingdom’s withdrawal from the European Union, EU law will cease to be a source of domestic law for the future (even if the Great Repeal Bill provides that some legal rules derived from it should remain in force or continue to apply to accrued rights and liabilities), decisions of the Court of Justice will (again depending on the precise terms of the Great Repeal Bill) be of no more than persuasive authority, and there will be no further references to that court from UK courts. Even those legal rules derived from EU law and transposed into UK law by domestic legislation will have a different status. They will no longer be paramount, but will be open to domestic repeal or amendment in ways that may be inconsistent with EU law (at para. 80).

The implication is that the prerogative could not be used to trigger Article 50: “the consequential loss of a source of law is a fundamental legal change which justifies the conclusion that prerogative powers cannot be invoked to withdraw from the EU Treaties” (at para. 83).

My colleague Mark Elliott has cogently criticised this reasoning:

The majority reaches this conclusion while simultaneously holding that the ‘rule of recognition’ — ‘the fundamental rule by reference to which all other rules are validated’ — has remained unaltered by EU membership. That view, although at odds with the classical analysis of the Factortame case advanced by Professor Sir William Wade, is defensible. As Lord Reed puts it in his dissent, EU law derives its authority from a statute (viz the ECA) and the statute derives its authority from the rule of recognition. EU law’s validity in the UK does not therefore turn upon any modification of the rule of law recognition. However, whereas the majority sees no tension between this conclusion and its view that EU law is an independent source of UK law, it drives Lord Reed to the opposing view  that ‘EU law is not itself an independent source of domestic law, but depends for its effect in domestic law on the 1972 Act’ (my emphasis). The Act gives effect in domestic law to EU law, but the latter is not assimilated to the former, and there has been no change to ‘any fundamental constitutional principle in respect of the identification of sources of law’.

Lord Reed’s analysis of this axiomatic point seems to me compelling, the weakness of the majority’s position being highlighted by the tension barely concealed within it. It is hard to see in what sense the EU’s legislative and constitutional apparatus can be an ‘independent source’ of UK law if the source of EU law’s validity in the UK is itself UK law (in the form of the ECA). The EU regime may be independently capable of generating law — and so be a source of law — viewed from an EU perspective, but it does not follow that the same is true from a UK constitutional perspective, as the Supreme Court itself appeared to acknowledge in the HS2 case.

I wonder, though, whether there might nonetheless be something to be said for the majority’s reasoning — if the majority’s reasoning is restated.

The starting point is that the prerogative cannot change the common law, as all accept: see the majority at para. 44 and Lord Reed at para. 177. EU law’s status in domestic law is due to the common law, which has evolved to accommodate the constitutional realities of Britain’s EU membership. As Laws LJ explained in Thoburn:

[T]here are no circumstances in which the jurisprudence of the Court of Justice can elevate Community law to a status within the corpus of English domestic law to which it could not aspire by any route of English law itself. This is, of course, the traditional doctrine of sovereignty. If is to be modified, it certainly cannot be done by the incorporation of external texts. The conditions of Parliament’s legislative supremacy in the United Kingdom necessarily remain in the United Kingdom’s hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle (at para. 59, emphasis added).

Isn’t it the case, then, that sending the Article 50 notification would change the common law, by altering the balance the common law has established between domestic and EU norms? The problem is not so much that the use of the prerogative in this context would eliminate a source of law (as the majority argued) as that it would effect a modification in a fundamental doctrine of the common law, something that cannot be done by prerogative.

I would not suggest that this answers all of Lord Reed and Professor Elliott’s criticisms of the majority judgment, but it seems to me to provide a more plausible (first) basis for the decision that legislation is needed to authorise the triggering of Article 50.

This content has been updated on January 27, 2017 at 19:01.