Aidan O’Neill QC
EU law and the UK constitution before the UKSC
On 23 June 2016, a referendum was held in the UK and Gibraltar on the question, ‘should the United Kingdom remain a member of the EU or leave the EU?’ The franchise for this referendum was contained in the European Union Referendum Act 2015. Those permitted a vote in the referendum by Parliament were British citizens, Irish citizens and citizens of Commonwealth countries who were lawfully resident in either the UK or in Gibraltar at the time of the referendum, and British citizens who had last been resident in the UK or Gibraltar up to 15 years previously. The more than 3 million citizens of EU Member States (other than Ireland, Cyprus and Malta) then lawfully resident in the UK were excluded from the franchise. This ‘Brexit electorate’ amounted to some 46,500,001 people, including around one million citizens of Commonwealth non-EU countries. On a turnout of 72.2% of those eligible to vote, some 17,410,742 votes (51.9% of those voting, 37.4% of the total eligible ‘Brexit electorate’) were cast for the UK to leave the EU, while 16,141,241 (48.1% of those voting, 34.7% of the total eligible ‘Brexit electorate’) voted for the UK to remain a Member State of the EU. No provision of the 2015 Act had stated that the result of the Brexit referendum would be considered to bind either the UK Government or the UK Parliament. On the morning immediately after the referendum result, the then UK Prime Minister, David Cameron, announced that he considered that the Brexit referendum result constituted an instruction from the electorate for the UK to leave the EU and for him to resign as Prime Minister. On 2 October 2016, his replacement as Prime Minister, Theresa May, announced that the UK Government would commence the formal process of leaving the EU provided for by art 50(1) of the Treaty on European Union (‘TEU’) before the end of March 2017. Article 50(1) TEU provides that: ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.’
Once it was decided by the UK Government, in the light of the Brexit referendum result, to pull the UK out of the EU, it became necessary (ironically, as a matter of EU law) to identify just what were the ‘constitutional requirements’ imposed by the ‘United Kingdom constitution’ as necessary to initiate the art 50 TEU withdrawal procedures. The position of the UK government appeared to be that the decision to withdraw the UK had been made by ‘the people’ in the referendum and that it needed no further authority from Parliament to act on that decision, but could instead simply rely upon the foreign affairs prerogative to withdraw the UK from the relevant international Treaties. The Court, by an 8–3 majority (Lord Reed, Lord Carnwath and Lord Hughes dissenting), disagreed. In a single, though apparently multi-authored, opinion the majority (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge) ruled:
The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.
In its account of the constitutional position of the UK within the EU the Court’s majority, in a first for a UK court, unequivocally endorsed the claim, oft-pressed by the Court of Justice of the European Union (‘CJEU’), that:
the founding treaties of the European Union, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only Member States but also their nationals.
The Miller majority accepted that the essential characteristics of the EU’s ‘new legal order’ were its primacy over the laws of the Member States and the possibility of it having direct effect both in relation to individuals as well as ‘emanations’ of the Member States. Accordingly, the majority was able to hold that:
- ‘where EU law applies in the United Kingdom, it is the EU institutions which are the relevant source of that law. […] it is unrealistic to deny that, so long as [the European Communities Act 1972] remains in force, the EU Treaties, EU legislation and the interpretations placed on these instruments by the Court of Justice are direct sources of UK law’;
- and that ‘although the 1972 Act gives effect to EU law, it is not itself the originating source of that law’;
- concluding, therefore, that ‘[t]he 1972 Act effectively operates as a partial transfer of law-making powers, or an assignment of legislative competences, by Parliament to the EU law-making institutions (so long as Parliament wills it), rather than a statutory delegation of the power to make ancillary Regulations’.
Having achieved a revolutionary modification of the traditional dualism which was said to characterise the UK’s constitutional relationship with ordinary international law, the remainder of the Court’s account of the UK constitution proceeds on the assumption that the 19th century English constitutional tradition as formulated/invented by Dicey – the mythistory of Victorian England, as it may be termed – is the fount and only origin of the contemporary UK constitution. From the terms of all the judgments in Miller, while the UK constitution may contain presumptions (for example, that specific, rather than general, statutory words are needed for the UK Parliament to override fundamental rights) it contains only two definite rules, namely that:
- the UK Parliament has ‘the right to make or unmake any law whatsoever; and further, no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’; and
- ‘Proceedings in [the pre-1707 Union English] Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’..
On this reading of the principle of the sovereignty of the UK Parliament, the Court’s now unanimous dismissal of the arguments (raised by, among others, the Northern Ireland claimants in the conjoined case of McCord and Agnew and in the interventions of the Scottish and Welsh Governments) about the need to involve the peoples, legislatures and governments of all the constituent parts of the UK in any decision for the UK to leave the EU, is inevitable yet unsatisfying. The issue raised by them was whether the devolved legislatures (whose electorates, unlike that of the UK Parliament, encompass EU citizens from other Member States settled here) together with the UK Parliament had the right, as a matter of UK constitutional law and principle, to be involved in the decision that, and the basis upon which, the UK leave the EU. While the Court accepted that ‘the removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced’, it then dismissed, as inconsistent with its vision and version of the untrammelled sovereignty of the UK Parliament, the Scottish and Welsh Governments’ arguments that the statutory requirement for the UK Parliament to seek the consent of the devolved legislatures when legislating with regard to devolved matters could ever be legally enforceable or even justiciable, let alone enforceable with regard to any legislation concerning the withdrawal of the UK from the EU.
Miller was essentially a case which was argued before, and decided by, the Court on the basis of the English Imperial constitutional tradition forged in the Victorian age. In retrospect, it might have been better for the Scottish and Welsh Governments not to have intervened in the Miller appeal, and for the McCord and Agnew reference not to have been heard with Miller. This would have allowed the Miller case to have been decided (as it had been before the (English) Divisional Court) on the proper basis of solely English constitutional tradition and history. In the Scottish constitutional tradition, previous case law is said to be binding not, as in English law, by reason of its authority, but because of the authority of its reasoning. Miller on devolution simply fails to persuade. But, on the devolution aspects, it is a unanimous 11-judge decision of the highest court in the land. Unless the Supreme Court is going to make more of a habit of sitting in plenary session en banc, its decision in Miller constitutes the final and binding word on these matters.
EU law and common law fundamental rights
Clause 5(2) of the Withdrawal Bill unequivocally proclaims, accepts and applies the principle of the primacy of EU law in stating: ‘[T]he principle of the supremacy of EU law continues to apply on or after exit day so far as relevant to the interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day.’ The paradox and irony is that it is only with the triggering of the Brexit process that we finally have an unequivocal acceptance as a matter of UK constitutional law that EU law is not simply another species of international law. Instead, it is (per the majority of the Court in Miller) a direct source of UK law independent of Parliament and (per the Withdrawal Bill) it has had primacy over laws passed by Parliament.
Clause 5(1) of the Withdrawal Bill provides that ‘[t]he principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.’ So what is envisaged under the Bill is a withering away over time of the principle of the primacy of EU law in the UK, as formerly EU derived UK law is replaced by new, purely indigenous rules. With that gradual attenuation of the principle of primacy will come a consequent erosion of the remedial rights based on the primacy of EU law that can be prayed in aid before the UK courts in all domestic areas currently falling within the ambit of EU law (whether environmental law, consumer law, health and safety, employment protection, equality law, data protection, intellectual property, and public procurement). As EU law primacy goes, so too the EU law right to an effective remedy, at least against Parliament, weakens. The individual will ultimately be left only with those substantive and remedial rights which the (sovereign) UK Parliament allows her.
Presumably in anticipation of this change, the Court has increasingly sought to encourage a return to common law roots, to re-discover native constitutional principles and unearth our indigenous fundamental rights tradition, all of which might be used to rein in some of the executive’s excesses, (unless and until it gets express and unequivocal authorization from Parliament). Thus, in R (UNISON) v Lord Chancellor, the challenge to the lawfulness of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (which required that claims in the employment tribunals and appeals to the Employment Appeal Tribunal could only be commenced and continued on payment of fees), Lord Reed noted (in the lead judgment on behalf of a unanimous 7-judge Court) that:
The issue concerning the effect of the Fees Order on access to justice was argued before the courts below on the basis of EU law, although some domestic authorities and judgments of the European Court of Human Rights were also cited. Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law. The case has therefore been argued primarily on the basis of the common law right of access to justice, although arguments have also been presented on the basis of EU law and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
It appears that the base metal of EU law is transformed by the alchemy of the Court into the gold of common law fundamental rights, a currency in which the Court can continue to trade after Brexit. In striking down the Fees Order as unlawful, the Court relied primarily on the executive’s obligation to give practical and effective (rather than theoretical and illusory) respect to the common law constitutional right of access to the courts which was said to be ‘inherent in the rule of law’. In Lord Reed’s words:
At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.
In essence, the Fees Order was found to be unlawful because of what Lord Reed described as the executive’s failure to take proper account of and give due weight to:
the public benefits flowing from the enforcement of rights which Parliament had conferred, either by direct enactment, or indirectly via the European Communities Act 1972. Fundamentally, it was because of that failure that the system of fees introduced in 2013 was, from the outset, destined to infringe constitutional rights.
So while Miller reaffirms a Diceyan notion of the sovereignty of Parliament, UNISON reinforces the subordination of the executive to the rule of law. This is undoubtedly a powerful constitutional tool. But the real test for the common law will come when faced with a case in which the body which seeks to limit, for example, the fundamental constitutional right of access to the courts is unequivocally Parliament, rather than the Executive. This indeed is the situation in Secretary of State for Foreign and Commonwealth Affairs v Benkharbouche. The case concerned rights afforded under the European Convention of Human Rights (‘the ECHR’), and separately EU law, compatibility of the court granting immunity from suit to foreign embassies (under the provisions of the State Immunity Act 1978) against claims brought against them before the Employment Tribunal by former employees. The Court held that in order to provide the “effective remedy” required by art 47 of the EU Charter of Fundamental Rights (‘CFR’) to these employees against their former employers, the relevant provisions of the SIA had to be disapplied. Because of the doctrine of Parliamentary sovereignty the order for disapplication of the statute could only be made in relation to such of their claims which fell within the ambit of EU law (claims for discrimination, harassment and breach of the Working Time Regulations). These claims were therefore remitted to proceed before the Employment Tribunal to be determined on their merits. But in respect of those claims which were based solely on national law without an EU law underpinning (failure to provide payslips or a contract of employment, unpaid wages, failure to pay the national minimum wage and unfair dismissal) the employees continued to be barred from running them by ss. 4(2)(b) and 16(1)(a) SIA, notwithstanding that the Court found that their exclusion from the Employment Tribunal in respect of these claims was Convention incompatible (both under reference to art 6 of the ECHR on its own and also art 6 when read with art 14 of the ECHR). The Court made a declaration of incompatibility to this effect under s 4 HRA, but Parliament is not bound to give any effect to it, and the declaration has no effect on the enforceable rights of the parties to the litigation: see e.g. R (Chester) v Justice Secretary  UKSC 63  2 AC 271 re prisoners’ voting. The high doctrine of Parliamentary sovereignty proclaimed in Miller means that without an EU law element the claimants in Benkharbouche had no effective remedy. And Clause 5(4) of the Withdrawal Bill provides bluntly that “The Charter of Fundamental Rights is not part of domestic law on or after exit day” a provision softened only by the immediately succeeding terms of its Clause 5(5) which provide that:
Subsection (4) does not affect the retention in domestic law on or after exit day in accordance with this Act of any fundamental rights or principles which exist irrespective of the Charter (and references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles).
R v Docherty is an example of the Court already, in the manner envisaged by cl 5(2), referring to principles given expression in the CFR. “In this case the Court referred to the inclusion in art 49 of the CFR of the lex mitior principle –that if, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit – in considering whether this same principle should also be recognised as a principle of English law in areas outside the ambit of EU law.. It would appear then, that even were cl 5 of the Withdrawal Bill to be enacted in its current form, there remains space for the Court to continue to work its alchemy in transforming EU Charter rights into fundamental common law rights. And there remain hints in the Court’s case law of even more radical future developments even in this area. In Moohan v Lord Advocate, Lord Hodge (in a majority judgment with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agreed) stated:
I do not exclude the possibility that in the very unlikely event that a parliamentary majority abusively sought to entrench its power by a curtailment of the franchise or similar device, the common law, informed by principles of democracy and the rule of law and international norms, would be able to declare such legislation unlawful.
Certainly there is more work that could be done specifically within the English constitutional tradition. The 18th century treatises of Blackstone and the judgments of that great Anglo-Scot Lord Mansfield may provide fruitful sources for the re-imagining of the constitution after Brexit.
This is an excerpt from a chapter in Daniel Clarry (ed), The UK Supreme Court Yearbook, Volume 8: 2016-2017 Legal Year (Appellate Press 2017).
 Emphasis added.
 Secretary of State for Exiting the European Union v R (Miller) (‘Miller’)  UKSC 5,  2 WLR 583, .
 The Full Court of the CJEU most recently reiterated this long held position in its Opinion 2/13 On the proposed accession of the EU to the European Convention on Human Rights ECLI:EU:C:2014:2454 at §157.
 Miller (n 4) .
 ibid  (emphasis added).
 ibid .
 Compare Pham v Home Secretary  UKSC 19,  1 WLR 1591,  (Lord Mance).
 Compare Jackson v Attorney General  UKHL 56,  1 AC 262,  (Lord Steyn), ,  (Lord Hope).
 Miller (n 4) .
 ibid , quoting and approving AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 38.
 ibid , quoting art 9 of the English Bill of Rights 1688-89 (emphasis added)This part is not in Miller .
 ibid .
 R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768 (Admin),  2 WLR 583.
 Miller (n 4) .
 In Jackson (n 10)  (Lady Hale) (‘[T]he courts will, of course, decline to hold that Parliament has interfered with fundamental rights unless it has made its intentions crystal clear.’); AXA General Insurance Ltd v HM Advocate  UKSC 46,  1 AC 868,  (Lord Reed) (‘The principle of legality means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.’ (emphasis added)).
  UKSC 51,  3 WLR 409.
 ibid .
 ibid .
 ibid  (emphasis added).
  UKSC 62.
  UKSC 62,  1 WLR 181.
  UKSC 67,  2 WLR 141.
 ibid  (emphasis added).