Policy Exchange / Judicial Power Project (January 2017)
The legal controversy in the Miller case may now be distilled in the following way. The government argues that it has a general power to withdraw from treaties, which it certainly does. The claimants argue that the executive does not have a power to frustrate a statute, which it certainly does not. The government argues that Parliament legislated in 1972 (and afterwards) against the background of a settled practice that the power of the Crown to withdraw from treaties is untrammelled. The claimants respond that there was never such a treaty as the set of EU Treaties and hence the previous practice is irrelevant.
This paper suggests that the correct interpretation of s. 1 of the European Communities Act 1972 [‘ECA’] strengthens the government position in Miller. The paper does so by explaining the legislative choice expressed in s. 1 ECA with the aid of the clear interpretative statements made in Parliament by government representatives during the legislative work on what became the ECA.
Both the scheme of the ECA 1972 and the debates on it assumed that the Crown has an inherent constitutional power (not conferred by the ECA or any other statute) conclusively to enter (under international law) into treaties constituting important amendments to the Community Treaties. That power both to sign and to ratify was neither conferred by nor restricted in the ECA. Parliament only sought to influence – as distinct from authorise – its exercise by giving to each House of Parliament (not to Parliament, the Queen-in-Parliament, itself) the opportunity to approve or withhold approval of the government’s incorporating such future amending treaties into internal UK law simply by Order in Council declaring them (with conclusive effect) to be Community Treaties. ECA s. 1(3) confers that remarkable incorporation power of the government, subject only to resolutions in each House. The fact that it has scarcely been exercised in relation to treaties amending EEC/EU Treaties does not affect Parliament’s intent in 1972.
In relation to Miller, this strongly supports the view that withdrawal from the Community (now EU) Treaties was not, in law, subjected by the ECA 1972, even implicitly, to the requirement alleged by the claimants and the Divisional Court, that it be pre-authorised by the Queen-in-Parliament. Moreover, if that power of the government was confirmed and not curtailed by the ECA 1972, the most comprehensive incorporation of – and apparatus for incorporating – EU law into UK law, why would anyone think that Parliament impliedly intended later statutes, like the European Parliamentary Elections Act 2002 or the Communications Act 2003, to be protected from the normal effect of withdrawing from a treaty, namely that statutes presupposing events, processes etc. predicated on treaties may be left high and dry by the cessation of the UK’s involvement in such events and processes? The claimants’ assertion that those statutes created, as a strange side-effect, a kind of incorporation into UK law of EU rights existing under non-incorporated EU rules (about the European Parliament, for example) remains quite without support.
On the main issue, as well as the side issue just mentioned, the government has the stronger case. The claimants have to make a bold argument rejecting established constitutional practice and attributing to Parliament in 1972 and to subsequent Parliaments a very robust intent to change the law in unprecedented ways, an intent of which there is no sign in the ECA or the debates on its enactment. How many Justices of the Supreme Court will recognise this remains to be seen.