Tag: Miller

Why a no-deal Brexit on 29 March is unconstitutional, not the “legal default”

Posted on by lee.mcconnell

By Rose Slowe LLM, Honorary Research Fellow, University of Bristol Law School. Author on EU Law and Barrister at Foundry Chambers.

Leaving the EU without a deal on 29 March 2019 is not the “legal default”, as has been repeatedly, but wrongly, asserted. It would, in fact, be in violation of the supreme law at both the domestic and supranational level, namely the UK constitution and EU Treaties (or more broadly, the General Principles of Community Law which includes ECJ jurisprudence alongside the Treaties). As such, without an Act of Parliament authorising Brexit in whatever form, the legal default is that the Article 50 notice issued will lapse, if not unilaterally revoked.

Article 50(1) of the Treaty on European Union (‘TEU’) provides that a Member State may decide to withdraw from the EU in accordance with ‘its own constitutional requirements’. The Supreme Court, the highest judicial authority responsible for interpreting our unwritten constitution, confirmed in R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, that, as a matter of UK constitutional law, only an Act of Parliament can authorise, and give effect to, changes in domestic law and existing legal rights. The Miller litigation, while lacking in a critical respect, as discussed elsewhere, was an essential source of legal certainty in terms of our constitutional requirements and, specifically, the doctrine of parliamentary sovereignty as it pertains to Brexit; judicial clarification at the highest level of legal authority. Of significance, the majority held that the European Communities Act 1972 has rendered EU law a source of domestic law and, now that it has acquired that status, removing it, wholly or in part, is a matter on which Parliament has to legislate. (more…)

The dualist system of the English Constitution and the Victorian acquis

Posted on by legalresearch

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).*

The Supreme Court in Miller set out the model that ‘the dualist system is a necessary corollary of Parliamentary sovereignty’ (para 57), or in the words of Campbell McLachlan in his admirable Foreign Relations Law, cited by the Supreme Court:

If treaties have no effect within domestic law, Parliament’s legislative supremacy within its own polity is secure. If the executive must always seek the sanction of Parliament in the event that a proposed action on the international plane will require domestic implementation, parliamentary sovereignty is reinforced at the very point at which the legislative power is engaged (para 5.20).

As the Court said, this passage ‘neatly summarises’ the position: but, beyond the neatness of summarization, does it correctly capture the constitutional position? (more…)

Law and Politics in the Supreme Court

Posted on by legalresearch

By Prof Phil Syrpis, Professor of EU Law (University of Bristol Law School).

By a majority of 8 to 3, the Supreme Court held that in light of the terms and effect of the European Communities Act 1972, ‘the prerogative could not be invoked by ministers to justify giving Notice under Article 50… Ministers require the authority of primary legislation before they can take that course’ (para. 101). Within hours, the European Union (Notification of Withdrawal) Bill,[1]  authorising the Prime Minister to trigger Article 50, was published. It passed through the House of Commons unscathed yesterday. A White Paper, setting out the Government’s plan for Brexit, such as it is, has also been published.[2]

The purpose of this post is very specific. My aim is not to analyse the judgment, the Bill or the White Paper. That has been done elsewhere. Instead, my aim is to begin to explore the relationship between law and politics, and between Parliament, the executive and the judiciary, taking as a starting point the judgments in the Supreme Court. The judges are, at times, careful not to trespass into the political realm. Nevertheless, their findings are informed and influenced, in a number of ways, by the political context. There are, moreover, important differences between the approaches adopted by the majority and the minority, including differences relating to the judges’ understanding of the legal process of Brexit.

It is hoped that inconsistencies between and within the judgments will provoke further academic consideration of the extent to which Courts should intrude into, or take cognisance of, the political realm; and of the extent to which constitutional safeguards are matters of substance or form. But, at this febrile political time, the clearest conclusion is that by failing to answer key questions of law, the Court has done a disservice to Parliament, thereby contributing, not towards the provision of a clear framework within which politicians are able to address the realities of Brexit, but to the pervasive sense of confusion. (more…)

Brexit and Parliament: Doubting John Finnis’s Dualism

Posted on by legalresearch

By Prof Julian Rivers, Professor of Jurisprudence (University of Bristol Law School).

© Nick Weall
© Nick Weall

The news that the appeal will be heard by a full panel of 11 Justices of the Supreme Court confirms that the High Court’s ‘Brexit Judgment’ is of the highest constitutional significance. So the attention devoted to the judgment by eminent constitutional lawyers is hardly surprising. One powerful argument against the judgment, which is attracting a growing number of supporters, is made by Professor John Finnis in papers for the Judicial Power Project.

Finnis argues that the court mistakenly assumes that EU rights are ‘statutory rights enacted by Parliament’. On his view, the European Communities Act 1972 simply provides a means for making EU law rights enforceable in English law; they are not ‘statutory rights’ as such. Finnis draws an analogy with double-tax treaties. These serve to relieve individuals with connections to more than one country from being taxed twice on the same income. In order for this to apply, both state parties must maintain the international agreement. If one of them gives notice to rescind, as they are typically entitled to do under the treaty, the immunity lapses. In dualist systems such as the UK, there is thus an asymmetry between the creation and removal of rights. There are two conditions precedent for the enjoyment of any new right: an international treaty conferring that right, and an Act of Parliament giving effect to that treaty in domestic law. Both elements are needed to create the right, but if either condition precedent fails, so does the right. The mere fact that Parliament has to provide the domestic conduit does not stop the Government from turning off the international tap.

I am not convinced that this argument works in the context of the UK-EU relationship. (more…)

EU rights as British rights

Posted on by legalresearch

By Dr Eirik Bjorge, Senior Lecturer in Public International Law (University of Bristol Law School).

eca-1972-imageAccording to a carefully argued contribution by Professor Finnis in the Miller debate, rights under the European Communities Act 1972 ‘are not “statutory rights enacted by Parliament”’; they are only ‘rights under the treaty law we call EU law, as it stands “from time to time”’. Finnis thus purports to have broken the chain of the claimant’s main argument.

In that connection, Finnis considers the somewhat recherché example of taxation treaties and the Taxation (International and Other Provisions) Act 2010 to be a useful analogy. The point of the present contribution is to suggest that a more natural analogy would be the Human Rights Act 1998 and the European Convention on Human Rights (ECHR). Like the ECA 1972, the HRA 1998 conditions the legal relationship between citizen and state in an overarching manner and deals with fundamental constitutional rights. There is also particularly instructive judicial authority on the HRA 1998 specifically on question of the nature of its relationship with the international treaty whose obligations it mirrors. (more…)