The week that was

The week that saw the 10th anniversary of the European Research Council, began with the renewed demand by the First Minister of Scotland, Nicola Sturgeon, that Scotland have a chance to vote on whether it leaves the UK before the UK leaves the EU. This would be at some point between Autumn 2018 and Spring 2019. Her demand was immediately rebuffed by Teresa May, who condemned the move as the wrong policy at the wrong time, and committed herself to holding together this ‘precious, precious Union.’

As Stormont rose, the Lords retreated – having seen their two amendments on EU workers and a meaningful vote rejected by an increased majority, they allowed the 2 paragraph Brexit Bill to pass into law un-amended. Teresa May now has the power to begin Brexit talks and many expected Article 50 to be triggered by Tuesday but this did not happen, perhaps due to the storm brewing in Stormont, or the worry caused by Wilders in the Netherlands. The latter was resolved when Dutch voters rejected his racist and xenophobic vision for their country; it remains to be seen if and how Scottish voters will respond to the SNP.

The week also brought a visual manifestation of the chilly relations between the EU and the USA. Due to bad weather on Tuesday, the meeting between Merkel and Trump was postponed to Friday. Merkel may have been present as the German Chancellor but is widely seen as the leader of the free world and the voice of the EU. The body language at their press conference said it all, but in case of any doubt, there was then the so-called ‘Merkel Moment’.

John Major re-launched his condemnation of Leave campaigners saying “It was dishonest and wrong to promise the British people an easy, favourable deal with the EU, wrong to promise swift new trade deals, and wrong to state that the Irish peace process would not be unsettled by Brexit.” He dismissed claims that Britain could thrive under WTO rules, warning that 90% of UK exports to the EU would become more expensive, with tariffs that would add about £6bn to their costs.

Officials from the Department for International Trade may agree with him, which is why a Brexit Plan B is being discretely drawn up. They are investigating whether the UK can invoke the rarely–used Article 24 of the WTO Treaty. This would allow the U.K. and Brussels a “reasonable length of time” after Brexit to agree a transitional free-trade deal before WTO law forces both sides to impose the same tariffs on each other as they do on everybody else. Such an interim deal would avoid a ‘hard Brexit’ in March 2019 by keeping tariffs at zero when the UK leaves the Single Market.

Major also condemned the ‘fake facts and bogus promises’ spread by the Brexiters. Indeed far from the promised infusion of an extra 350 million per week,  the NHS is becoming de-staffed and de-skilled: nurses are leaving and not being replaced. Many of the 55,000 doctors and nurses in the NHS from the EU have felt unwelcome after the EU referendum and are now leaving. Simultaneously, new registrations of EU nationals as nurses in England have dropped by 92% since June 2016.

Given the departure of health-care experts, it is some comfort that the EU’s Rapid Alert System for dangerous products seems to be functioning well. According to the report for 2016, national authorities removed more dangerous products from stores and in response to increased e-commerce, the Commission has increased cooperation with Amazon, Ebay and Alibaba to tackle potentially dangerous products, such as toys, sold online. The Commission also continues to plan for the 60th celebrations of the EU on March 25th where the White Paper, presented by the European Commission setting out the vision of the 27 for the future of Europe after Brexit, will be debated. Continue reading

Achbita and Bougnaoui: raising more questions than answers

Case Comment: Case C157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV and C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA

Samira Achbita and Asma Bougnaoui were both fired for wearing an Islamic headscarf in the workplace. In its Grand Chamber ruling of March 14th the Court of Justice of the European Union (CJEU) ruled that internal company rules banning the wearing of visible religious, political or philosophical symbols do not constitute direct discrimination on the grounds of religion or belief. It also developed some criteria according to which indirect discrimination can be legitimate and objective.

The case Achbita has already attracted critical attention (see HERE, HERE and HERE). Indeed, it is of great significance. Advocate General Kokott sets out the core question in her Opinion:

“Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work? These are, in essence, the questions which the Court must answer, for the first time in the present case, from the point of view of EU law, and, more specifically, in the light of the prohibition on discrimination based on religion or belief.”(para 1)

Developments with regard to the wearing of religious symbols and clothing are being closely watched across Europe and remain subject to ongoing discussions and political debate. The key question is whether and how this ruling of the CJEU provides a judicial space for employers to ban the wearing of religious symbols in the workplace.

The cases concerned Belgian and French women employees who were fired for wearing an Islamic headscarf. In the case of Achbita the preliminary question referred asked how Article 2(2)(a) 1 and 2 of Employment Framework Directive 2000/78 on equal treatment in employment and occupation must be interpreted. The core question was whether the prohibition on wearing an Islamic headscarf, set out in the general internal rules of a private company, is direct discrimination.

In its assessment, the CJEU found that the internal rules at issue banned all visible religious, political or philosophical symbols and that they applied in the same way to all employers so as to secure a neutral company image. The internal rules were applied without distinction, explicitly prohibiting the wearing of any visible sign of political or philosophical beliefs not just visible signs of religious beliefs. Therefore, the court concluded that the ban at issue could not be regarded as direct discrimination in the sense of Directive 2000/78.

The CJEU however recognised the possibility that such an internal rule could lead to indirect discrimination. This would be the case if the rules were capable of putting individuals of certain religions or beliefs at a particular disadvantage in comparison with other employees. Nonetheless, it held an indirect difference of treatment may be objectively justified by a legitimate aim, provided that the measure at issue is appropriate and necessary for achieving that aim.

In its ruling the CJEU thus concludes that the aim of an employer to present a neutral image towards its clients is legitimate, as long as these rules refer only to employees in direct contact with clients. The CJEU concludes that the national court is to determine if and to what extent the company rules comply with these requirements in practice.

Comment

This ruling is interesting from many points of view.

First of all, the considerable weight given to a company’s desire to promote a neutral appearance seems somewhat curious. It appears to contradict the ECtHR judgment in the case of Eweida and Others v. the United Kingdom where the Strasbourg Court ruled that there had been a violation of the right to freedom of religion or belief when Ms Eweida was not permitted to wear a crucifix at work. The ECtHR in Eweida considered that on one side was Ms Eweida’s desire to manifest her religious belief and on the other was the employer’s wish to project a certain corporate image, and that a fair balance had not been struck. Although the human rights court recognized that the employer’s wish to project a certain corporate image could be regarded as a legitimate aim, it found that the national court accorded it too much weight.

It could be argued that in contrast to Eweida, the ruling of CJEU provides more space for employers to ban the wearing of religious symbols in the workspace without violating the fundamental right to freedom of religion or belief. The ruling could be understood as confirming that the mere wish of a company to present itself in a neutral way is an objective justification for a different treatment of employees .

Second, it is remarkable that the CJEU extensively studies whether the objective is legitimate and the requirement is proportionate but at the same time fails to examine the proper balance between the desire of the employee to manifest her religious belief and the employer’s wish of a neutral workplace environment. On this issue Advocate General Kokott delivered the following opinion in para 127

it is for the referring court to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which she must perform her activity, as well as the national identity of Belgium“.

The question is whether the omission of the CJEU to examine the said fair balance provides enough guidance to enable national judges to determine whether a company ban on wearing visible religious, political or philosophical symbols, can be regarded as indirect discrimination. Or does it simply push this hot potato onto the plate of the national judges?

Third, it seems curious that in its assessment on whether or not the company’s internal rules can be considered a legitimate aim, the court primarily (maybe even solely?) focuses on the fundamental right of freedom to conduct a business (Article 16 CFR). Why, for example, idoes it not mention the right to work in Article 31(1): Every worker has the right to working conditions which respect his or her … dignity?. It seems that the reasoning of the Grand Chamber, and the way in which it weighs the various relevant elements, remains implicit at best – but perhaps is simply incomplete. This is problematic in such an important case.

In Bougnaoui, the core of the preliminary question was whether Article 4 (2) of Directive 2000/78 must be interpreted as meaning that the preference of a customer to receive services from a company employee who does not wear an Islamic headscarf can be considered a genuine and determining occupational requirement.

The ruling of the CJEU on this question is clear. It concluded that in the absence of any company rule, the mere desire of an employer to take into account the wishes of a customer to ban religious symbols is direct discrimination. Such a ban cannot be regarded as a genuine and determining occupational requirement within the meaning of the Framework Directive.

Various NGO’s have already claimed that the ruling of the CJEU legitimizes discrimination, in particular towards Muslim women. As for now it will depend on the national courts and law-makers to set out the conditions under which an internal company rule can ban religious clothing from the workplace.

Monique Steijns

Monique works within the Dutch Ministry of the Interior as an adviser on constitutional law and human rights. Monique studied law at the University of Amsterdam. She is part of the Netherlands Committee of Jurists for Human Rights and chairperson of the working group Constitutional and Administrative law.

Monique contributes in a personal capacity; the opinions expressed cannot in any way be attributed to the Dutch government.

The week that was

The biggest news of the week was the Budget: the biggest news about the budget should have been that Brexit was not mentioned once. Headlines were dominated by the increase of high earning self-employed persons, overlooking another potentially important change lurking in the red box – the introduction of UK VAT on roaming telecoms services outside the EU – making it 20% more expensive to use a UK mobile in non-EU countries, or those that the UK seeks to do business with after Brexit. In other financial news, in Cornwall, where the majority voted to leave the EU and also relinquish £60m of annual funding from the EU, the Government has agreed to provide £18m to prop up the county’s weak economy.

Parliament this week warned of the consequences that might arise if the UK were unable to negotiate a Withdrawal Agreement  – the House of Common’s Foreign Affairs Committee advised the government to start preparing for the “real” possibility that it will leave the European Union without a deal. Worrying words also from Mars for chocolate lovers – a top Mars executive says that if the UK leaves the EU without a trade deal it will endanger jobs and raise prices. If the UK falls back onto World Trade Organisation rules, prices could be subject to trade tariffs of 30% in confectionery, 20% for animal products, over 15% for cereals and more than 10% for fish and fruit.

New personnel were sent to Brussels: the UK Permanent Representation to the European Union announced two new senior appointments. Katrina Williams has been appointed to the post of UK Deputy Permanent Representative and Simon Case will be the new Director General for the UK-EU partnership – he will work with Sir Tim Barrow, the UK Permanent Representative to lead the work on Brexit. Let’s hope he gets on well with Donald Tusk who, much to the anger of his compatriots, has been re-confirmed as President of the European Council for a further 2.5 years. If the two year timetable is held, he will therefore lead the EU-27 Heads of State and Government through Brexit.

Finally, daring to dream into the future, Commission President Juncker, shared his hope that the UK will one day rejoin the EU. Back to the present and he has been contacted by European Ombudswoman Emily O’Reilly, who has raised concerns about transparency and public access to documents. She has received complaints about the response to requests for public access to documents connected to the UK referendum and the negotiations.  Juncker has been asked to provide details of how ‘the Commission intends dealing with the transparency of the upcoming negotiations, bearing in mind citizens’ rights.’

This week begins with Dutch voters heading to the voting booths in a national election that may see this liberal country lurch to the right; the Prime Ministers prepares to trigger Article 50; academics at Oxford, fearing a huge loss of staff and skills, urge the Prime Minister to protect the residency rights of EU workers in the UK; and Angela Merkel prepares to meet Donald Trump, with aims apparently to sway rather that persuade him on climate change. One wonders whether she may also charm Steve Bannon, Trump’s right-hand, right-wing man in the West Wing, whose anti-EU worldview is keep many in Brussels awake at night.

From the CJEU:

C-342/15 Piringer : Freedom to provide services: Member States may reserve to notaries the power to authenticate signatures appended to the documents necessary for the creation or transfer of rights to real property

C-398/15 Manni : Approximation of laws-  there is no right to be forgotten in respect of personal data in the companies register

C-615/15 P Samsung SDI and Others v Commission Competition – The Court upholds the fines imposed on Samsung SDI and Samsung SDI (Malaysia) for their participation in the cartel on the market for tubes for television sets and for computer monitors

 C-484/15,C-551/15 Zulfikarpašić : Area of Freedom, Security and Justice – Notaries in Croatia, acting in enforcement proceedings on the basis of an ‘authentic document’, cannot be deemed to be ‘courts’ either within the meaning of the Regulation on the European Enforcement Order or for the purposes of the application of the Regulation on the recognition and enforcement of judgments in civil and commercial matters

News round-up

This week, John Major’s reality check on Brexit annoyed the Tories, but not as much as the House of Lords. In the biggest upset of her plans to date, Teresa May has had to face the defeat of her Bill in the House of Lords, where peers overwhelmingly supported a Labour amendment to secure the rights of the 3.6 million EU citizens living in the UK. Losing a vote during the committee stage in the House of Lords means the Brexit bill will enter a so-called ping pong between the Houses of Commons and Lords, potentially delaying its passage into law. Applications for permanent residency have risen, as has the cost and difficulty in gaining this. Home Secretary Amber Rudd confirms that the current right to travel and work in different EU countries will not remain when Britain leaves the EU and March 15 has been mentioned as a cut-off date for full rights of residence. Rudd this week also authorized the use of stronger tasers by the police.

The confident words emanating from Downing Street that concessions would not be made may be tempered by the news that peers also plan to reject May’s threat to walk away if EU leaders offer only a ‘bad deal”, leaving Britain out of the EU and dependent for its international trade relations on World Trade Organisation (WTO) rules. Gina Miller has also warned of further legal proceedings if Parliament is not guaranteed a meaningful vote on leaving the EU. The question remains as to whether rejecting a deal is the prerogative of the UK – Art 50 (3) TEU does not preclude the EU from walking away from the table. It is indeed questionable whether there is a choice – Art 50 says nothing about whether either party can continue negotiations after two years in the absence of formal unanimous agreement for an extension of talks.

Another week, another Le Pen scandal: MEPs voted to remove parliamentary immunity from Marine Le Pen, leaving her open to prosecution. The EP has also thrown the gauntlet down to the USA – in response to US travel restrictions on five EU member states, MEPs encouraged the Commission to impose visa restrictions on travellers from the USA visiting the EU. Continue reading

Brexit Round-Up

On Friday 17th February, Tony Blair, launched his campaign for Bremain, declaring it his “mission” to persuade Britons to “rise up” and change their minds on Brexit and find  “a way out from the present rush over the cliff’s edge”. Speaking in the City of London, the former prime minister claimed that people voted in the referendum “without knowledge of the true terms of Brexit”. Debate continues to rage over the true cost of Brexit, as a result of Camerons commitment to fund the whole current EU spending cycle from 2014 to 2020. The time lag between commitment and expenditure – the “Reste à Liquider” (RAL) – may see Britain making payments to Brussels until at least 2023. The true costs of the referendum are now coming to light, as the Electoral Commission declares it the most expensive referendum in British political history.

This week also saw the start of the journey of the Brexit Bill through the House of Lords under the steely, somewhat sneering gaze of the Prime Minister and a warning that Britain will be plunged into its biggest turmoil in over a century if peers attempt to thwart Brexit’.  The attempt to intimidate was lost on Liberal Democrat Baroness Kramer who called for voters to have “the final word” on the Brexit deal in a referendum.

Stephen Sedley commented on the curious language used in the Brexit Bill, calling the ‘petulant and ungrammatical wording, alongside the use of an acronym rather than the name of the European Union’ a ‘curiosity’ that raised the question of whether the Bill ‘was copied from the back of a ministerial envelope.’ He also agrees with those who think that the CJEU may yet have to determine whether Article 50 TFEU once triggered can be revoked:

‘…if, after two years of negotiation, no acceptable deal has been reached with the other member states, either the prime minister’s notice under Article 50 will expire and our membership of the EU will lapse with no deal in place, or the notice will have to be extended or withdrawn. Who has authority to decide whether this can be done? The Court of Justice of the European Union, that’s who.’

Businesses begin to make Brexit plans – Barclays Bank announced an expansion of operations in Ireland and Germany, although apparently the bulk of operations will stay in London after Brexit even if the UK loses access to the single market. Farmers also delivered a warning over the consequence of losing EU seasonal workers: according to figures released this week, more than 100,000 EU citizens left Britain in the three months after the EU referendum. New worker registrations from Poland, Hungary and Slovakia are down from 16% – 20% prompting fears of a recruitment crisis.

Meanwhile, fraud investigations spread from the father to the daughter: this week French police raided the FN Headquarters of Marine Le Pen as part of an official investigation into “fake” jobs involving the misuse of European Union funds to pay for a bodyguard and an assistant in Paris. OLAF has demanded that she repay €340,000 and in the face of her refusal, is currently deducting this from her MEP’s salary.

Finally, as Labour clung onto Stoke and the Conservatives took Copeland, questions have been raised concerning the future of UKIP – having lost ‘Brexit capital’ is UKIP now a spent force? In Stoke, UKIP finished more than 12 points behind Labour. Can the end of the insurgency party in the UK fortell the end of the insurgent in the White House? Continue reading

Brexit Round-Up

From the News:

A week on from the rendition of Ode to Joy by SNP Parliamentarians in Westminster in response to the Brexit White Paper, the Speaker of the House, Mr John Bercow, finds himself in hot water for exercising his own freedom of speech.

Calls for his resignation have drowned out the perhaps more significant news that as far as the EU is concerned, the UK will not be able to negotiate its exit and future relationship with the EU concurrently and while the latter proceed, the UK will remain under the jurisdiction of the CJEU.

The Supreme Court finally responds to the media attacks on the judiciary during the Miller case: Lord Neuberger said in an interview on BBC Radio 4 that politicians were too slow to defend judges after Brexit case, especially as the vitriol aimed at judges ‘undermined rule of law.’

The division of the Supreme Court in Miller was perhaps not as surprising as its unanimity on the devolution questions. Eutopialaw’s own Aidan O’Neill considers the potentially disastrous consequences of this aspect of the decision for the UK in an article here.

While Article 50 has not yet been triggered, a report from the CIPD and The Adecco Group finds that labour and skills shortages are already appearing in sectors of the UK economy that employ a high number of EU nationals.

Trade integration continues under the shadow of Brexit: a day after MEPs approve CETA (Comprehensive Economic and Trade Agreement), Justine Trudeau tells the European Parliament that the whole world benefits from a strong EU.

Meanwhile back in the UK all eyes are focused on February 23, the day of by-elections in Stoke-on-Trent and Copeland – where the electorate voted by majorities of 70 % and 62% respectively to leave the EU.

All eyes will then turn to France, where Marine Le Pen has been given high odds of winning the French presidential election. Her father however has lost his case in Luxembourg against the European Parliament, which has taken action to recover monies paid to him and his parliamentary assistants.

Finally, BBC Radio 4 launches its series ‘Brexit – A Guide for the Perplexed’ on February 17th – will the Government tune in?

Recent Case Law from the CJEU:

Opinion of the Advocate General C-74/16 Congregación de Escuelas Pías Provincia Betania

State aid: In the view of Advocate General Kokott, tax exemptions for Church-run schools do not, as a rule, breach the prohibition on State aid

Judgment of the Court of Justice C-219/15 Schmitt

Approximation of laws: The Court of Justice delivers its judgment in the case involving breast implants made of inferior quality industrial silicone

Judgment of the Court of Justice C-560/14 M v Minster for Justice and Equality

Claims for Subsidiary Protectionan applicant for subsidiary protection does not have the right to an interview but an interview must be arranged where specific circumstances render it necessary in order to examine the application with full knowledge of the facts.

Opinión C-3/15 Avis au titre de l’article 218, paragraphe 11, TFUE

Law governing the institutions: the EU, acting on its own, may conclude the Marrakesh Treaty on access to published works for persons who are visually impaired

Judgment of the Court of Justice C-562/15 Carrefour Hypermarchés SAS v ITM Alimentaire International SASU

Comparative advertising based on prices as between shops having different formats and sizes is unlawful in certain circumstances

Opinion of the Advocate General C-638/16 X and X

DFON: According to Advocate General Mengozzi, Members States must issue a visa on humanitarian grounds where substantial grounds have been shown for believing that a refusal would place persons seeking international protection at risk of torture or inhuman or degrading treatment

Judgment of the General Court T-646/13 Minority SafePack – one million signatures for diversity in Europe v Commission

Citizenship of the Union: The General Court annuls the Commission decision refusing registration of the proposed European citizens’ initiative entitled ‘Minority SafePack – one million signatures for diversity in Europe’

Law and Politics in the Supreme Court

Phil Syrpis, University of Bristol Law Schoolsyrpis

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, 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.

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.

Continue reading

Miller Judgment breaches UKSC duties under EU law in disservice of UK Parliament

ASG smallDr Albert Sanchez-Graells

The UK Supreme Court (UKSC) has today handed down its Judgment. It has done so in a way that both infringes its duties under EU law and does a disservice to the UK Parliament.

Breach of UKSC’s duties under EU law

One of the difficult legal issues on which the Brexit litigation hinged concerned the interpretation of Art 50 TEU and, in particular, the revocability of a notice given under Art 50(2) TEU. The interpretation of this point of law falls within the exclusive competence of the European Court of Justice (ECJ) under Art 263 TFEU. Interestingly, the UKSC stressed this monopoly of interpretation as a key element of EU law at para [64]. However, the UKSC has violated the ECJ’s monopoly of interpretation of the EU Treaties by accepting the parties’ commonly agreed position on the irrevocability of an Art 50(2) TEU notice at [26] of the Miller Judgment.

In doing so, the UKSC has infringed its obligation under Art 267(3) TFEU to engage in a preliminary reference to the ECJ concerning the interpretation of Art 50 TEU (for legal background see here and here). This cannot be saved by an argument that, under domestic procedural rules (or conventions), the UKSC had the possibility of taking this approach–and effectively dodging one of the most complex and unpredictable legal issues on which the litigation rested.

There are several reasons for this, but the primary one is that, as matter of EU law, a preliminary reference by the highest court of an EU Member State is unavoidable where the interpretation of EU law is necessary to enable it to give judgement–or, in other words, where the judgment relies on a given interpretation of EU law. In my view, it is beyond doubt that the UKSC Miller Judgment is based on the interpretation that an Art 50(2) TEU notice is irrevocable, and that this represents the legally binding view of the majority judgment, regardless of the attempt to save the UKSC’s view on this point in para [26] — or, in other words, it is not (logically, legally) true that the UKSC’s Miller Judgment operates ‘without expressing any view of our own on either point‘ (ie regarding the revocability or not of the Art 50(2) TEU notice). There are explicit indications of this interpretation in paras [59], [81] and [92] (see here for more detailed analysis of the latter).

In view of the relevance of the points of irrevocability of the Art 50(2) TEU notice, it is clear to me that the UKSC had an obligation to seek the interpretation of this provision by the ECJ and that, in not doing so, it has breached EU law. Moreover, beyond what some may consider a highly technical or academic point, by not seeking this clarification the UKSC has also done a disservice to the UK Parliament. Continue reading

Miller – A Decision in Defence of the UK Constitution

Prof Iyiola SolankeBlogPhoto

The UKSC has spoken. And as many had expected (perhaps in their more sanguine moments even the Government legal team) it has upheld the decision of the High Court that legislation is required prior to the triggering of Article 50 TEU. The judgement should become compulsory reading in Constitutional Law, especially because it sets out clearly the separation of powers between the government and parliament, in particular the law making powers of each and most significantly the reach of those laws made using institution specific law-making powers.

The UKSC remind that the basis of the prerogative power asserted by the government is in the principle of dualism – that international law and domestic law operate in independent spheres [55]. Thus although treaties signed under international  law are binding on the UK in international law, such treaties are not part of UK law and give rise to no legal rights or obligations in domestic law. Therefore just as treaties made by Ministers are not governed by domestic law, domestic law made to give national effect to those treaties cannot be governed by Ministers. As put in JH Rayner by Lord Oliver of Aylmerton:

“As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation…” [56].

Hence, as put by the UKSC ‘…the dualist system is a necessary corollary of Parliamentary sovereignty, or, to put the point another way, it exists to protect Parliament not ministers’ [57]. In coming to this conclusion the UKSC should be seen not as ‘enemies of the people’ but on the contrary their friends: by protecting parliament, they also protect the people, ensuring that governments do not undermine the citizenry by imposing decisions upon them which have not been put before them or their representatives (ie Parliament). This may be of especial resonance to the 28% who did not use their vote in the EU referendum.

The ECA 1972, passed by Parliament to incorporate the Treaty of Rome into domestic law, is uncontroversially described as more than an ordinary statute. This assertion of the constitutional character of the 1972 Act is not new – it was set out in Thoburn and R (Buckinghamshire County Council) v Secretary of State for Transport. Importantly, the Court highlights the crucial distinction in relation to its dual impact – first it provided that ‘rights, duties and rules derived from EU law should apply in the United Kingdom as part of its domestic law’ and secondly created a ‘new constitutional process for making law in the United Kingdom.’ The former is described as ‘exclusively a question of EU law’; the latter ‘exclusively a question of domestic law’ [62].

From here it requires only reiteration of traditional reasoning to conclude that oversight over the domestic constitutional process remains with Parliament not government. As such, Parliament can legislate to alter the domestic constitutional process, the status of EU institutions or even the status EU law. This is not constrained by the primacy of EU law, or any rule of EU law because this is a question of the domestic constitution for Parliament. Parliamentary sovereignty is in 2017 as it was in 1972 and ‘…EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament’ [67].

Thus just as Parliament decided in the 20th century when the Treaty of Rome should have domestic impact, it is for Parliament to decide in the 21st century when that ceases to apply; then as now this remains a question for Parliament, not the Government. The Court rejects the argument asserting that the 1972 Act foresees use of prerogative powers – without prior Parliamentary authorisation – to break the constitutional legal tie made by Parliament between EU law and the UK. On the contrary, it concludes that,

“… by the 1972 Act, Parliament endorsed and gave effect to the United Kingdom’s membership of what is now the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties.”

Given the long-standing principle of parliamentary sovereignty, one may again wonder why the EU referendum was necessary. The judgment can be read as adding weight to assertions that the EU referendum was a response to party political and not national interests.

Call for contributions: R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references

The editors of Eutopialaw would like to invite authors to contribute short (500 words) comments in reaction to the forthcoming Supreme Court decision in the Miller case, expected on Tuesday 25th January. Contributions can be on any aspect of the judgment, but given the focus of the blog should highlight those aspects of interest to EU law and lawyers. We hope with this call for short posts to encourage immediate responses that can be rapidly read and serve to stimulate ongoing conversation on the important and long term issues raised by this case. Authors should assume an informed readership that is familiar with the basics of the case and of EU law.

 Posts should be sent to the Editorial team at eutopialaw@gmail.com