Will the Supreme Court have to make a reference to the Court of Justice of the EU in Miller?: further thoughts

14 Nov 2016

There has been much excitement generated by the possibility that, in order to resolve the Miller case, the Supreme Court might have to make a reference to the Court of Justice of the EU (“ECJ”).

The excitement is partly generated by the fact that the question that it is thought might have to be referred – the question of whether a notification under Article 50 TEU can be withdrawn unilaterally by the Member State concerned – is one with major political significance, since a positive answer would mean that the United Kingdom retained the option, at any time until the day it actually left the EU, of changing its mind and remaining a member on current terms.  But it is also due to the fact that a reference to the ECJ would take time (thereby having significant implications for the Government’s proposed notification timetable): and the idea that the ECJ, a court never popular with politicians hostile to the EU, would seem to have a say in the United Kingdom’s decision to make an Article 50 notification would be, to say the least, controversial in certain quarters.

In a recent piece here, Philip Moser QC rightly pointed out that, although the Divisional Court was prepared to proceed on the basis of an agreement between the parties that Article 50 notification is irrevocable, the Supreme Court is unlikely to be prepared to proceed on the basis of such an agreement (even if it persists, which it appears it may not).  He also explained, in my view entirely correctly, that if the answer to the question in Miller does depend on whether an Article 50 notification is revocable, then the Supreme Court will have no option but to make a reference of the revocability question: though (in my view) the arguments that an Article 50 notification can be revoked are compelling, for reasons set out here  by Professor Paul Craig, the question cannot be regarded as acte clair (i.e. so clear that there is no need to trouble the ECJ).

So the key question is whether the Claimants’ case does depend on the proposition that an Article 50 notification cannot be revoked unilaterally by the United Kingdom.  In my view, however, it does not: the Claimant’s case, as accepted by the Divisional Court, survives even if that proposition is incorrect.

The effect of a notification under Article 50 is that the United Kingdom is set on a path which leads by default to the United Kingdom leaving the EU two years later (with all the immediate effects on domestic law set out by the Divisional Court).  I say “by default” because several events could intervene: the period could be extended by agreement with all other EU States; an Article 50 agreement could provide for a later date; a further Treaty could be agreed between the United Kingdom and the other Member States; or all Member States could agree to the United Kingdom revoking the Article 50 notice (a possibility accepted even by those who argue that it is not unilaterally revocable).  However, none of those events are ones within the control of the United Kingdom: they all involve the agreement of other Member States, which might not be forthcoming.

That makes the “irrevocability” hypothesis an attractive one from the Claimants’ point of view: as soon as Article 50 is triggered, on this hypothesis, all UK citizens’ rights derived from EU membership automatically vanish after 2 years, with nothing the United Kingdom, and in particular the UK Parliament, can do to prevent it without the agreement of other Member States, over which Parliament has no control.

However, though the irrevocability hypothesis is an attractive simplifying assumption from the Claimants’ point of view, it is not in my view a necessary assumption.

That is because the key constitutional principle lying behind the Claimants’ case is the principle that an act of the Royal Prerogative cannot remove statutory rights granted by Parliament: the principle most famously set out in the Case of Proclamations of 1610.  And that principle would apply even if, having notified under Article 50, the United Kingdom were able unilaterally to withdraw that notification.

That that is so can be seen from the following example.  If the Crown purported, by a proclamation given under the Royal Prerogative, to remove a domestic law right granted under the XYZ Act as from March 2019, it is clear that, under the Case of Proclamations, that proclamation would have no legal effect.  But it would make no difference to that analysis if the proclamation had a clause which said something like “unless Parliament passes an Act before March 2019 re-affirming the XYZ Act.”  The point is that, leaving aside cases where Parliament has conferred specific powers on the Crown, the removal of a statutory right requires a positive act by Parliament, namely the passage of an Act of Parliament removing that right.  In short, the Royal Prerogative cannot make Parliamentary inaction have the same effect as an Act of Parliament.

Returning to Article 50, the key point is that, even if the United Kingdom can revoke an Article 50 notification, the effect of a notification under Article 50 is that, unless Parliament acts (for example, by passing an Act of Parliament requiring the notification to be withdrawn), all the rights UK citizens enjoy under the EU treaties vanish two years later (subject only to events depending on the actions of other States).  The fact that Parliament could, on the revocablity hypothesis, intervene to prevent that default consequence arising is not relevant: the principle is that the Royal Prerogative should not be able to remove statutory rights without a positive act by Parliament, namely a specific statutory power or an Act of Parliament.  Parliamentary silence is not enough.

It may be noted that this argument closely resembles an argument accepted by the Divisional Court about so-called “category (i)” rights, namely EU-derived rights that Parliament could re-instate in domestic law if it wished to do so: see §58 of the judgment.  (Examples of category (i) rights include rights derived from EU Regulations – which are not incorporated into domestic statute – such as rights to payments under the Common Agricultural Policy.  They also include rights implemented under the European Communities Act 1972 (“ECA 1972”) and which would need to be re-enacted under a different domestic legal basis once the EU Treaties cease to apply to the United Kingdom, such as consumers’ rights under the Unfair Terms In Consumer Contracts Regulations.)  The Divisional Court said at §64 that:

“As to category (i) rights, we consider that the claimants are correct in their submission that it is the ECA 1972 which is the principal legislation under which these rights are given effect in domestic law of the United Kingdom: and that it is no answer to their case to say that some of them might be preserved under new primary legislation, yet to be enacted, when withdrawal pursuant to Article 50 takes place. The objection remains that the Crown, through exercise of its prerogative powers, would have deprived domestic law rights created by the ECA 1972 of effect.

In other words, the fact that Parliament could re-enact those rights was no answer to the point that the use of the Royal Prerogative to trigger Article 50 and hence bring about their removal was contrary to the principle set out in the Case of Proclamations.  Similarly, in my view, if the Claimants’ case on the extent of that principle is well-founded, it is no answer to it to say that even after Article 50 is triggered Parliament could (if the revocability hypothesis is correct) force a revocation.

My view, therefore, is that the Claimants’ case, as accepted by the Divisional Court, does not depend on the assumption that Article 50 notification is irrevocable: that is no more than a simplifying assumption.  If that is right, the Supreme Court not only does not have to, but cannot, make a reference of that question to the ECJ.  That is because, under Article 267 TFEU, a national court has no power to make a reference of a question of EU law just because it would be generally helpful to know the answer: it can make a reference only if it has to know the answer in order to give judgment.

That said, there would be nothing to stop the Supreme Court from expressing its views on the revocability question: though those views would be what lawyers call “obiter dicta” (i.e. remarks by a court that form no part of its essential reasoning and which do not create a binding precedent), obiter dicta of the Supreme Court always carry weight and could well inform the political debate on the role that Parliament can and should play in the Article 50 process.  But whether the Supreme Court chose to venture into those waters would, if I am right, be entirely a matter for it.