Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful

Originally published on the U.K. Const. L. Blog, 18 November 2016

Introduction

In its judgment in Miller (the Article 50 litigation), the High Court had no doubts that it was defending constitutional orthodoxy. The issue at stake was that of the limits of executive action in the international sphere when this has consequences in UK law. The Court relied on the principle that the crown cannot change law without statutory authority. John Finnis, David Feldman, as well as Mark Elliott and Hayley Hooper argued that the Court erred by an over-broad reading of the principle and in its application. Finnis framed his argument using an analogy between withdrawing from a double-taxation treaty and withdrawing from the EU Treaties. However, some may have a worry that the analogy fails because EU law has a sufficiently special status in UK law or for some more technical reason.

I show here that even if that is the case, there is another class of executive actions rendered unlawful if one accepts the High Court’s reasoning in Miller. I am referring to voting by UK ministers in the EU Council in favour of EU secondary legislation that diminishes any individual rights derived from UK or EU law. It is difficult to assess exactly how many times, on this argument, UK ministers broke UK constitutional law since the UK joined the European Economic Community (EEC) in 1973. What is not difficult to see is how staggeringly surprising is the conclusion that such law-breaking has been taking place. I neither criticise nor defend this conclusion here. My ambition is merely to develop the argument for it, applying faithfully the logic adopted by the High Court.

In her recent comment, Sionaidh Douglas-Scott noticed and dismissed this possibility saying:

… in cases outside of treaty amendment (where an EU Regulation is repealed for example) where rights are eliminated, the House of Commons European Scrutiny committee has the possibility of assessing the relevant EU measure, which should be deposited in Parliament by the Government. > >

She uses scrutiny by parliamentary committees as an argument for lawfulness of UK involvement in diminishing rights via the EU. However, on Miller terms this is insufficient: what is needed is express authority given in an Act of Parliament. No ‘green light’ from a Commons or Lords committee, no ‘special role’ for MPs to ‘have a say’ granted in a mere resolution of the Commons or of the Lords come close to providing proper legal authority. If we are serious about Miller, then such half-measures will not do.

The argument is straightforward. Voting in the EU Council on proposals of EU secondary legislation constitutes executive action that as such requires legal authority. The authority, in principle, could be (1) that of the royal prerogative to conduct international relations or (2) of s. 2(1) of the European Communities Act (ECA) 1972. In the first case, application of Miller is very simple: the executive cannot use the prerogative in such a way as to diminish individual rights. In the second case, I need to say a bit more about the proper construction of s. 2(1) ECA 1972. The point is that, if one interprets the ECA the way the High Court did in Miller, s. 2(1) ECA cannot provide sufficient authority for voting for measures that would have a consequence of diminishing rights. And we should remember how liberal the High Court was in admitting what kinds of rights are so protected. I hope it begins to become apparent to careful readers of the Miller judgment that there is some plausibility to this analogy. It is now time to fill in the details.

How voting in the Council may diminish individual rights

The Council of the European Union

It does not require special argument that EU secondary law sometimes modifies and diminishes rights that individuals have under EU law or directly under UK law (e.g. the Kadi saga). And some, if not most, of that secondary law is created with express assent of UK government, by a vote in the EU Council. Importantly, the members of the Council are not EU functionaries, unlike the members of the Commission. Article 16(2) the Treaty on European Union makes this clear (emphasis mine):

The Council shall consist of a representative of each Member State at ministerial level, **who may commit the government of the Member State in question and cast its vote**. > >

What is particularly important for the present argument is that it is governments (executive branches) of EU member states which are represented in the Council and which cast votes through ministers representing them.

The Proclamations principle

As the High Court said in Miller (at [25]):

The Crown has only those prerogative powers recognised by the common law and their exercise only produces legal effects within boundaries so recognised. Outside those boundaries the Crown has no power to alter the law of the land, whether it be common law or contained in legislation. > >

And later, agreeing with the claimants (at [95]):

… that the Crown could not change domestic law and nullify rights under the law unless Parliament had conferred upon the Crown authority to do so either expressly or by necessary implication by an Act of Parliament. > >

This principle was expressed in many authorities, notably in _The Case of Proclamations _(1610) and the in Bill of Rights 1688. The Court refers to its version as summarised in The Zamora [1916] 2 AC 77. For brevity, in what follows I refer to this principle as ‘the Proclamations principle’.

What sort of causal link must the negative consequences for rights have with executive action?

The Council normally does not make EU law alone and even if it did, it is still the case that the representatives of the United Kingdom do not make decisions for the Council but merely participate in decision-making. Someone might say that this is a significant difference with notification of a decision to withdraw from the EU in accordance with Article 50 Treaty on European Union (TEU), which - whatever its consequences - is a unilateral act for the UK to undertake. And, if no one does anything, once Article 50 is triggered there is the automatic consequence of leaving the EU after two years. The High Court in Miller accepted that an Article 50 notification by the executive would constitute altering of UK law by the executive that could only be done with statutory authority. Would the situation be different had Article 50 required, for instance, assent of majority of member states (or even of one other state) for triggering the procedure of withdrawal?

This sounds like the sort of ‘highly formalistic’ (Miller at [66]) argument that the Court rejected as inappropriate. Yes, the Court does say that ‘[t]he effect of the giving of notice under Article 50 on relevant rights is direct’ (at [11]). But given the Court’s general, robust approach to defending rights from executive action, executive authority to diminish rights when acting with accomplices, so to speak, is surely also ruled out by the logic of the Court’s position.

Aiming to be faithful to the reasoning adopted by the High Court, I suggest that in international affairs the Proclamations principle is triggered whenever UK government acts, alone or in concert, and when the legal consequences of the act are to diminish some individual rights given effect to in UK law. Hence, for instance: enacting an EU regulation, together with other members of the Council and together with European Parliament, may trigger the Proclamations principle (if the regulation diminishes rights).

The High Court’s discussion of the ‘category II’ rights is instructive (at [60]: ’those enjoyed by British citizens and companies in relation to their activities in other Member States, as provided for by EU law’). The Court rejected the government’s argument that may be rephrased as a proposition that those EU-derived rights in foreign law (e.g. French law) that UK citizens enjoy are not direct effects of the European Communities Act 1972. In response, the Court concluded that Parliament, when enacting the ECA 1972, must have intended the indirect chain of events leading to UK citizens acquiring those rights in foreign law. The Court characterised those rights as ‘created by Parliament’ (at [66]). But if a right to enter and remain in France, ‘formalistically’ speaking enacted by French legislature, is ‘created by Parliament’ then clearly ‘direct effect on rights’ in the Miller framework does not mean a consequence of acting alone, without involvement of other institutions.

The Miller judgment accepted that any domestic effect of an Article 50 notification will be due to the ECA 1972 (and other statutes) and it included ‘category II’ rights among the rights ‘created by Parliament’ through UK statutes. Importantly, without those statutes, exiting the EU would have no effect on rights in UK law and hence no way to trigger the _Proclamations _principle. Leaving the EU would not, strictly speaking, mean rescinding rights in domestic law by executive action on international plane alone. EU Treaties are not self-executing in UK law. The final consequence of an Article 50 notification (leaving the EU) needs to be ‘translated’ into UK law through statutory domestic gateways to have any effect there. In a similar way to new EU regulations.

What is the alternative? If we are to insist that diminishing of rights must be a ’necessary’ or ‘invariable’ consequence of an executive action, notification under Article 50 does not satisfy this test. Article 50 expressly presents as a default option not the automatic lapsing of membership after two years but a new agreement between the exiting state and the remaining member states to be reached before that deadline. It also expressly allows for extension of the period of negotiation. More importantly: outside of the express wording of Article 50, it would be possible for all the member states (including the UK) to decide that the UK is to remain a member of the EU. Note that I am not relying on unilateral revocability of an Article 50 notification (which is available according to many EU law experts) - but on revocability by unanimous consent of all member states. Even if that is not a likely scenario, it falsifies claims of ‘necessity’ and ‘invariability’ of the consequences of an Article 50 notification. Uncertainty is greater than Robert Craig allows while responding to Mark Elliott: notification of a decision to withdraw does not have exiting the EU as its ‘necessary’ consequence. Necessity-if-nothing-changes-and-no-one-does-anything is no necessity.

What would be an example of necessary consequences in a relevant sense? Take Acts of Parliament: they can change the law the very moment they are enacted. No one, except for Parliament, can stop them in such a situation. And if Parliament legislates to do so, then it is undoing a change already made. Not so with Article 50 notification and its revocation (or unanimous disregard by all EU member states): there would be no change in law to be undone (at least no rights-affecting change).

Maybe what is required is that an executive action is very likely to have as its consequence diminishing of rights, as an Article 50 notification arguably would. But participation in the EU legislative procedure may satisfy this condition and do so not only in cases where unanimity in the Council is required for a legislative measure to pass. Even in the more commonly used qualified majority voting procedure, both the UK’s vote and the UK’s participation in preparation of a proposal may be significant enough to increase appreciably the likelihood of passing an EU measure that happens to diminish rights. In other words, UK government does have a ‘strong voice’ in Europe (it just may be that we are only now finding out what are the domestic legal limits on exercising that voice).

Can EU law-making really trigger the Proclamations principle?

A possible objection may be that all EU rights are permanently at the mercy of the EU and as far as UK constitutional law is concerned: the EU giveth, the EU taketh away. In other words, because s. 2(1) ECA 1972 refers to rights, powers and so on ‘from time to time created or arising by or under the Treaties’, UK law gives EU institutions - and UK government acting within them - a carte blanche on doing whatever with those rights, powers etc. There is perfect symmetry: as many rights the EU can create in UK law, as many it may expunge or diminish. The objection could be summarised in the following way: the rights-protecting mechanisms of UK constitutional law kick in only when EU law is to be removed wholesale.

This sounds somewhat ad hoc. It is also at odds with the approach to statutory interpretation adopted by the High Court in Miller. In my forthcoming paper, I made the argument on how the principle of legality and the principle of the rule of law may limit (but also expand) the scope of s. 2(1) ECA. Nevertheless, I admit that I did not expect the catalogue of rights protected by domestic constitutional principles to be as broad as the High Court said in Miller (especially the so-called ‘category II’ rights in foreign law, see Miller at [57]-[64]).

I suggest that a new picture on interpretation of s. 2(1) ECA emerges from Miller, one of rights-protecting asymmetry. On this view, Parliament that enacted the ECA 1972 ought to be taken to have intended a generous recognition of new rights coming from EU law, but not a (domestically) unlimited power to diminish rights once granted. Also, we should not forget that EU secondary law may not only diminish EU rights, but also rights coming directly from UK law (so more than ‘EU giveth’).

At the very least, it is arguable that s. 2(1) ECA does not constitute a statutory authorisation for UK ministers to commit UK government in the EU Council to any EU measure, no matter how rights-diminishing. If a rights-diminishing measure passes, then perhaps it may still be directly effective in UK law. But that would not change the fact that it would have been unlawful for UK ministers to assent to it. A stronger view would be that at least some rights-diminishing EU measures do not have effect in UK law because they do not fit in the domestic incorporating gateway from s. 2(1) ECA, but I leave this consideration aside (I argue for a version of it in my forthcoming paper).

What is the legal authority for representation of the UK in the Council?

It may be surprising to a contemporary reader, but the issue of the legal basis for representation of the UK in the Council’s legislative functions was a matter of some controversy around the time the UK joined the EEC. Non-legislative procedures aiming to provide some parliamentary scrutiny that Sionaidh Douglas-Scott mentioned were instituted as a response to this problem (‘little short of scandalous’ as Martin Howe QC put it). But are they legally sufficient? Some thought no and arguably Miller revives this concern. For instance, there was a position expressed by minority of the authors of the Second Report from the Select Committee on European Community Secondary Legislation (October 1973, 1972–73, HC 463-I, p. xxxviii):

For the United Kingdom this poses a constitutional and legal paradox. For legislation by the executive is expressly prohibited by law and constitutional practice in the United Kingdom. This power was rejected under the guise of prerogative legislation in the _Case of Proclamations _(1610) 12 Co. Rep. 74 and in the Bill of Rights 1688 (and Scottish Qaim of Right 1689). United Kingdom Ministers of the Crown participating in E.E.C. Council of Ministers business do so, even from an E.E.C. standpoint, only insofar as they are clothed with United Kingdom constitutional authority. But that very constitutional authority expressly forbids them from legislating without the consent of Parliament. No Act of Parliament has yet given them that authority nor do the Treaty of Accession or the Treaty of Rome touch upon it. > >

It follows that United Kingdom Ministers cannot constitutionally consent to E.E.C. Council of Ministers secondary legislation having direct effect in this country without the consent of Parliament.

Similar concerns were raised in parliamentary debates (e.g. in 1974 and in 1977).

In principle, setting aside the issue of altering domestic law, it could be that UK ministers exercise prerogative powers when participating in the Council. As the High Court said in Miller (at [30]):

… as a general rule applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers. > >

But the core point of Miller is that prerogative powers will not do when alteration of rights and duties given effect in domestic law is at stake. If there is no prerogative power to act in the EU Council with effect of diminishing rights, then the question remains whether government has sufficient statutory authority for that.

Here I come back to the point I already made on proper interpretation of s. 2(1) ECA 1972. As was noted in parliamentary debates from the 1970s I referred to earlier, s. 2(1) ECA does not contain an express provision giving UK ministers a legal power to participate in the Council’s legislative activity. A maiore ad minus, there is no express statutory authority for them to participate in enacting EU measures that diminish rights coming from EU law or directly from UK law. Why would the lack of such express language be a problem given the seemingly catch-all nature of s. 2(1) ECA? The High Court provided an answer (at [83]-[84]):

… Similarly, the stronger the constitutional principle, the more readily can it be inferred that words used by Parliament were intended to carry a meaning which reflects the principle. > >

We emphasise this feature of the case because the Secretary of State’s submission, in our view, glossed over an important aspect of this starting point for the interpretation of the ECA 1972 and proceeded to a contention that the onus was on the claimants to point to express language in the statute removing the Crown’s prerogative in relation to the conduct of international relations on behalf of the United Kingdom.

Applied to the issue at hand, it would mean that to infer that s. 2(1) ECA confers on UK ministers a power to vote in the EU Council for rights-diminishing measures, we would expect more express language. In the absence of such language, the intention cannot be inferred from the general words that s. 2(1) ECA does contain. And that means that UK ministers have neither prerogative nor statutory authority in UK law to assent to rights-diminishing EU measures. When they do so, they act unlawfully in UK law.

Conclusion

In a surprising twist, the High Court brings us back to the view on the constitutional limits of UK government’s participation in European law-making abandoned shortly after the UK’s accession to the EEC. Perhaps that view is correct and the history of the UK’s membership in the EEC/EU has been fraught with executive law-breaking. My point is simple: once we accept the kind of robust legal limits on executive action in the international realm and the kind of interpretation of the European Communities Act 1972 that the High Court relied on in Miller, then it would be ad hoc and unprincipled to then contend that this reasoning applies only to withdrawing from the EU Treaties altogether. An interesting question is how much more of currently uncontroversial executive action is caught by Miller-like arguments. Given the established consensus on lawfulness of ministerial representation of the UK in the EU Council, this argument may perhaps further undermine the correctness of the High Court’s judgment in Miller.

The author thanks Mark Elliott, Tobias Lutzi, Alice Schneider, Ewan Smith, as well as Stephen Tierney and Jeff King for their comments on a draft of this text.