The Court held, by an 8-3 majority, that the UK Government did not have the power to give notice under Article 50 TEU to withdraw from the European Union without a prior Act of Parliament.
Lord Neuberger started the announcement in the manner of a history lecture, detailing the United Kingdom’s accession to the then European Economic Community in 1973. This was a fitting introduction to a judgment which at times reads like a lesson in the UK’s constitution. Accordingly, this lesson encompasses the place that EU law occupies within this order.
This post will attempt to provide a concise summary of the magisterial judgment, before providing some comment on the salient issues relevant to EU law.
The Supreme Court held that, when the United Kingdom Parliament enacted the European Communities Act 1972, it created a “conduit pipe” whereby EU law created by the institutions of the European Union is constituted as an “entirely new, independent and overriding source of domestic law” [Paragraph 80].
It is settled constitutional principle arising from states in the 17th and 18th century that the Executive (today the elected ministers of the Government) cannot change domestic law or the rights flowing from it without Parliamentary approval. [Paragraphs 40-45].
Therefore, the residual ‘prerogative power’ (powers that were once vested in the King or Queen and because they have not been given a statutory footing now vest in the ministers of the Government) to make and withdraw from international treaties cannot be used to give notice under Article 50 TEU to withdraw from the European Union.
Indeed, through fine-grained textual and teleological analysis of the provisions of the European Communities Act 1972, the Supreme Court comes to the conclusion that the prerogative power to withdraw from treaties in the international plane was never even applicable to the Treaties of the European Union: “it seems most improbable that these two parties (Parliament and the Executive) had the intention or expectation that ministers, constitutionally the junior partner in that exercise, could subsequently remove the graft (of the source of EU law onto domestic law) without formal appropriate sanction from the constitutionally senior partner in that exercise, Parliament”. [Paragraph 90]
Instead, such a “major change to UK constitutional arrangements [with the consequent changes in domestic law rights for individuals] must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.” [Paragraph 81]. Thus the Supreme Court concludes on the main point that “in light of the terms and effect of the 1972 Act…the prerogative could not be invoked by ministers to justify giving Notice: ministers require the authority of primary legislation before they can take that course” [Paragraph 101].
The practical consequences of the judgment are that an Act of Parliament voted upon by Members of both the House of Commons and the House of Lords will be necessary in order to authorise the UK Government to give notice to withdraw from the European Union under Article 50(1) TEU.
Lord Neuberger’s verbal delivery of the judgment was striking for those who have considered the relationship between EU law and the domestic law of the Member States. He outlined that EU law is an “independent source” of national law. The detailed explication of this claim in the judgment is perhaps even more impactful.
In addition to recognising the doctrine in substance, the Supreme Court even goes as far as to use both these terms by name by referring to the “primacy of EU law” at Paragraph 66 and the “overriding supremacy” of the source of EU law in the hierarchy of domestic law sources at Paragraph 81. One could argue that this recognises the interchangeability of these terms and the concepts they refer to; alternatively, the argument could be made that the Court uses “primacy” to refer to the effect that specific EU law norms have over conflicting norms in specific areas, whereas “supremacy” refers to the more holistic aspect of the overall status of the source itself of EU law.
For the Supreme Court provides a crucial qualification to the supreme status of the source of EU law within the UK constitutional order: “Of course, consistently with the principle of Parliamentary Sovereignty, this unprecedented state of affairs will only last so long as Parliament wishes: the 1972 Act can be repealed like any other statute” [Paragraph 61].
Beyond the eye-catching pronouncements on primacy, the majority judgment also makes some other interesting observations pertaining to EU law. The references discussed in this section are: the potential recognition of the constitutional and autonomous nature of the EU legal order; brief discussion of what legitimates the EU legislative process; the categorisation of rights deriving from EU law; whether Article 50 TEU has been incorporated into domestic law, and finally whether notice to withdraw from the Union once given under Article 50(1) is revocable.
Thus, from the perspective of the United Kingdom’s domestic legal order the Treaties are an overriding source of domestic law which are conditional on constitutional approval; from the European Union’s own perspective the Treaties are the fundamental “constitutional charter” of the new and autonomous European legal order, and from the perspective of international law the Treaties are the source of obligations in the international plane between the contracting Member States.
Adopting the perspective of the European Union, therefore, the dicta of the UK Supreme Court judgment can be regarded as an explicit endorsement and acceptance of what someone describes as the Court of Justice of the European Union’s constitutional function of “positioning” the Union legal order through the creation of juridical doctrines such as primacy and direct effect.
As a final twist, however, the practical consequences of the Supreme Court’s judgment on the 24th January is that the result of the referendum held 7 months ago does not legally bind the United Kingdom to withdraw from the European Union. The very sovereignty of Parliament that the Supreme Court upheld means that it is now within the remit of Members of Parliament in both the House of Commons and the House of Lords to decide whether they will vote to trigger Article 50.
However, the glaring question remains of whether a decision not to withdraw from the European Union is politically feasible in the face of the explicit “No” to the European Union returned by the United Kingdom electorate in the expression of popular democracy on 23rd June 2016. The majority decision of the Supreme Court in Miller may have settled the question of the legal principle of Parliamentary Sovereignty. However, the dormant emergence of popular sovereignty on the basis of the “will of the people” as expressed in the EU referendum may pose an entirely different constitutional dilemma.