The very purpose of the referendum was to establish a decision-making procedure for leaving the EU. This procedure was implemented by the June referendum.
5th December 2016
In R (Miller) v. Secretary of State for Exiting the European Union  EWHC 2768 (Admin) (3rd November 2016), the Divisional Court determined that the government may not trigger Article 50 of the Treaty on European Union (TEU) without legislation being passed by Parliament. Article 50 states:
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. … 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, agreement with the Member State concerned, unanimously decides to extend this period.
The claimants were members of the public described by the Divisional Court as “parties … whose interests are potentially affected in different ways” (para. 7 of judgment in Miller). The essential reason for the conclusion of the Divisional Court that legislation is needed was that triggering Article 50 TEU will inevitably have the effect of changing domestic law because those elements of EU law which Parliament has made part of domestic law by the enactment of the European Communities Act 1972 will in due course cease automatically to have effect.
The judgment seems open to criticisms on a number of grounds, chiefly the following: (i) it fails to adequately take into account the relationship between the UK legal system and the international legal system, understood here to include the European Union legal system, and the doctrine of dualism that applies to the incorporation of the EU Treaties into EU law; (ii) relatedly, its fails to adequately take into account the manner of incorporation of the EU Treaties into UK law by a method of reference or incorporation, and in particular, by reference to the entire body of EU law; (iii) the distinction drawn between categories of rights under EU law does not establish that some rights protected by UK law will be set aside in way contrary to the European Communities Act 1972, and (iv) and the judgment does not fully consider any constitutional effects of the European Union Referendum Act 2015.
Parliament will need to vote on how to replace EU law in UK law when Brexit actually happens. The Miller judgment requires that Parliament votes to being the process of Brexit too. At a political level, the Miller judgment is very significant in that the House of Lords may well vote against triggering Brexit, and it would take one year for the House of Commons to be able to bypass the House of Lords under the Parliament Acts 1911-1949.
(i) The relationship between the UK legal system and the international legal system, understood here to include the European Union legal system, and the doctrine of dualism:
The essential argument made by the Divisional Court to sustain its conclusion in Miller was that triggering Article 50 TEU would mean that the UK could leave automatically after 2 years and that leaving the EU would undermine or alter the effects of the European Communities Act 1972 (‘ECA 1972’) and change or reverse the rights of individuals created by the ECA 1972. The Divisional Court noted the principle of parliamentary sovereignty as common ground: “Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow this to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.” (para. 20). However, this includes the way in which ordinary EU legislation (i.e. EU legislation other than the Treaties, in the form mainly of Regulations and Directives) is passed at EU level. Legislation under Article 288 of the Treaty on the Functioning of the European Union is adopted in Brussels by the EU Council (of Ministers), with UK ministerial participation, as envisaged in s. 2(2) ECA 1972 (as noted in paras. 52-52 of the judgment). This procedure does not involve any vote by the UK Parliament, yet clearly changes UK law on a regular basis. This can only be because, as the Divisional Court says in paragraph 20 quoted above, Parliament has allowed this to happen.
The issue in Miller could thus be expressed as whether or not Article 50 TEU has also already been enabled by legislation in a similar way. Despite the Divisional Court conclusion in Miller, arguably the answer is yes.
The Divisional Court continued that “An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers” (para. 25) and the Court noted that this predated the Glorious Revolution of 1688 and could be found in The Case of Proclamations (1610) 12 Co Rep 74. Further, the Divisional Court noted that “Another settled feature of UK constitutional law is that, as a general rule applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers”(para. 30). Thus, the executive exercises the power to engage in foreign and international relations, but it cannot do so in a way that has an effect on legislation passed by Parliament.
Concerning the relationship between international law and UK law, the principle of dualism should first be clearly explained. The principle of dualism is recognised within the international legal system as one of two ways in which national legal systems can interact with the international legal system. The other is monism. Monism and dualism differ in the manner of incorporating international treaties or conventions into the national legal system. In a dualist system, which indeed the UK is, two steps are needed for an international treaty or convention to become part of UK law: (i) signature and ratification by the executive (in a monist approach, ratification also incorporates treaties into national law) and (ii) followed by incorporation into national law by Parliament. The argument of the Divisional Court – that because triggering Article 50 TEU would affect rights exercisable under EU law, it would therefore deprive the ECA 1972 of its effect and, thus, required an Act of Parliament to appropriately amend or repeal the ECA 1972 – seems reasonably persuasive at first, but this is so only because the judgment in Miller really does not take into account (i) the difference between producing effects in domestic law and producing effects at European/EU level and (ii) the way in which parliament has incorporated by reference the whole body of EU law into UK law.
Triggering Article 50 TEU would indeed produce legal effects at EU level, but it would not amend or repeal the ECA 1972. This is especially so when it is taken into account that the ECA 1972 has been amended by the European Union (Amendment) Act 2008, which was enacted specifically to give effect in UK law to the Treaty of Lisbon, and the Treaty of Lisbon included in it Article 50. This is the first occasion on which Parliament has already in effect voted on Article 50 TEU. The wording of the European Union Amendment Act 2008, which was not quoted in the Miller judgment, helps illustrate this. Seciton 2 of the European Union (Amendment) Act 2008 states:
Addition to list of treaties
At the end of the list of treaties in section 1(2) of the European Communities Act 1972 (c. 68) add— “; and
(s)the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community signed at Lisbon on 13th December 2007 (together with its Annex and protocols), excluding any provision that relates to, or in so far as it relates to or could be applied in relation to, the Common Foreign and Security Policy;”
This is important, because the Divisional Court in Miller specifically referred to the importance of parliamentary control as evidenced by the listing of the Treaties in s. 1(2) ECA 1972 (para 93(8) of the judgment):
Finally, we have already drawn attention to the significance of the fact that the principal EU Treaties which are given effect in domestic law are specifically listed in section 1(2). Section 1(3) provides for parliamentary control before any ancillary treaty can be made and regarded as a “Treaty” for the purposes of the Act, and hence given effect in domestic law. The Crown cannot simply make and ratify ancillary treaties in the exercise of its prerogative powers and thereby create legal effects in domestic law. It is not compatible with this degree of parliamentary control – listing the main “Treaties” in the ECA 1972 itself and providing for a high degree of Parliament control by way of approval by resolution of both Houses before an ancillary treaty qualifies as a “Treaty” for the purposes of the Act – that Parliament at the same time intended that the Crown should be able to change domestic law by the simple means of using its prerogative power to withdraw the United Kingdom from the Treaties.
Yet now the Treaty of Lisbon, which created Article 50 TEU, is listed under s. 1(2) of the ECA1972 (as amended by the 2008 Act), but the Divisional Court did not attribute any significance to this. The method of incorporation that was chosen by Parliament to give effect to EU law – incorporation by reference – confirms that triggering Article 50 TEU will not change UK law, but simply apply a procedure set out in the ECA1972 itself as amended.
(ii) The manner of incorporation of the EU Treaties into UK law by a method of reference or incorporation:
The wording of s 2(1) of the ECA1972, which is the clause of the ECA 1972 that incorporates EU law into UK law, is broad enough to cover both the incorporation of individual rights and other procedures:
(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression“enforceableEUright”and similar expressions shall be read as referring to one to which this subsection applies.
In its judgment, however, the Divisional Court speaks as if only individual rights were incorporated and not Article 50 TEU, when both are subject to the same principle of incorporation by reference (see e.g. para. 62 et seq). What incorporation by reference means, is that instead of re-enacting all of the individual provisions of EU law in the form of UK Acts, instead, EU law is globally incorporated by a single provision of UK law, s. 2(1) ECA 1972, with the relevant Treaties thereby incorporated being listed in s. 1(2) ECA 1972. Thus, both the original Treaties and all amending Treaties, including the Lisbon Treaty, have been incorporated in the same way. Seen in this light, the reasoning of the Divisional Court becomes problematic. The Divisional Court suggests that triggering Article 50 will denude the ECA 1972 of its legal effect:
As Parliament contemplated, it was only if it enacted the ECA 1972 (and then amended it to refer to later EU Treaties) that ratification of those Treaties could occur. The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the Courts of other member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972.(para. 66)
However, this is to suggest that Article 50 is in some way in conflict with the ECA1972: that triggering Article 50 will end up in a situation where the ECA1972 will no longer apply, yet it is exactly because the ECA 1972, as amended, has provided for Article 50 TEU to be a part of UK law that this is not so. Article 50 TEU is a part of the overall body of EU law that the ECA 1972 has incorporated. Article 50 needs to be seen as a part of this body of EU law and as something applies across the whole of EU law. By triggering Article 50, the government is providing for a procedure in EU law itself. The relationship between Article 50 TEU and the rest of EU law should be seen in the ordinary way in which different legal provisions relate to each other. Article 50 is lex specialis (specific law) and lex posterior (recent law) in regard to the rest of EU law. It is lex specialis or specific law in the sense that it provides for the particular or specific situation of leaving the EU. It is lex posterior or more recent law in that in effect amends EU law so that EU law itself provides for its own dis-application to a Member State, i.e. it amends the EU Treaties to this effect.
Contrary to what the Divisional Court suggests, there is no inherent or unresolvable conflict between Article 50 and rights created by EU law. Article 50 TEU regulates how EU rights are to be dis-applied. When Article 50 TEU is triggered, there will not be any provisions of UK law that have been left on the statute book, but which now have no legal effect. Yes, EU laws that have become part of UK law will be automatically dis-applied after the 2-year period (unless the UK and all the Member States agree to extend the period), leaving gaps in UK law. These gaps will be for the legislature to fill by replacing the ECA 1972, when Brexit actually happens, with an Act of Parliament that specifically sets out what rights previously set out in EU law to be continued in UK law.
(iii) The distinction between categories of rights under EU law:
The parties and Divisional Court agreed on a distinction between three categories of right that would be involved in the triggering of Article 50 TEU:
- Category (i) rights capable of replication in the law of the United Kingdom, e.g. EU rules on maximum working hours
- Category (ii) rights enjoyed in other Member States of the EU by UK citizens, e.g. free movement rights
- Category (iii) rights that could not be replicated in UK law, e.g. the right to stand for election to the European Parliament.
The Divisional Court suggests that triggering Article 50 would undo category (ii) rights. Triggering Article 50 would undo all of these rights. The Divisional Court seems mistaken in characterising, in para. 59, references by national courts Article 267 TFEU as a ‘right’, where decision to make a references to the Court of Justice are decided upon by national courts according to the criteria in the caselaw of the Court of Justice, and individuals cannot require a reference to be made as a right. But the same argument as above applies here concerning the undoing of rights: Parliament has provided for the undoing of these rights by incorporating Article 50 into UK law already.
(iv) The European Union Referendum Act 2015:
The Divisional Court was very brief in its discussion of the effect of the European Union Referendum Act 2015, which can be seen as the second time Parliament has voted on Article 50 TEU. The Divisional Court’s conclusion is hard to reconcile with the parliamentary and institutional facts surrounding the passing of the Act. Referenda are a relative novelty at UK level. Apart from the referendum on the Alternative Voting System held in 2011, the last referendum at UK level was also on the EU, or European Economic Community as it then was, in 1975. Both the legislation proving for the 1975 and 2015 referenda simply stated that there would be a referendum on membership, i.e. the legislation did not say anything about the effects of the referendum. However, this does not seem to justify the conclusion of the Divisional Court that the referendum held in June 2016 was purely ‘advisory’ unless very clear language to the contrary is used in the referendum legislation in question (para. 106). In support of its conclusion, the Divisional Court did not cite any authority. It did refer to “a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only” (para. 107). However, this does not seem sufficient to dispose of the constitutional effects of the referendum. It is clear from the House of Commons debate on the European Union Referendum Bill that the government intended that the decision of the people in the referendum would determine the issue of UK membership. The then Foreign and Commonwealth Secretary, Philip Hammond MP, stated on the European Union Referendum Bill:
This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017. (Hansard, Vol. 596, 9th June 2015)
Giving the people the final say means that Parliament must accept the referendum result. This is reflected in the fact that the vote to leave precipitated the resignation of the then Prime Minister, David Cameron MP.
When legislation is ambiguous, the rule of statutory interpretation in Pepper v. Hart  UKHL 3 allows the courts to refer to Hansard, the official record of debates in Parliament, to help determine its meaning:
In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.(Lord Browne-Wilkinson, p.22 of Bailii judgment text)
At the very least, the question of the status of the referendum seems by no means as straightforward as the limited discussion in the judgment in Miller suggests. In her judgment in Jackson v. Attorney General  UKHL 56, Lady Hale indicated that Parliament might be bound by a provision of legislation requiring a referendum to be passed:
If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular Parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. But that is for another day.(para. 163 of judgment in Jackson)
The Divisional Court in Miller refers to a briefing paper, but pays no attention to the clear statement above from the lead member of the government advocating the passing of the Bill. Under Pepper v. Hart, it was clearly open to the Divisional Court to refer to Hansard, and the above quoted statement by Philip Hammond is quite clear that the very purpose of the referendum was to establish a decision-making procedure for leaving the EU. This procedure was implemented by the June referendum.
By Gerard Conway