Some reflections on the Supreme Court judgment in Miller: European law is not foreign law

After a little delay, I’ve now read the Supreme Court judgement in Miller.  It’s different from other Supreme Court judgments I’ve viewed, because it doesn’t report the views of each judge separately, (with the exception of Lord Hughes’ muddled couple of pages), and it’s a better judgment for not doing so.  I was disconcerted, however, to find that none of the arguments, either from the the majority or the minority, referred directly to European law.  Both sides seem to construe EU law as a matter of obligations arising  under the treaties, and consequently refer only to UK decisions to establish the necessary principles.  However, as the majority recognises, the EU is in itself a source of law.  The central point about the European Union is surely that it is a union, and that within it citizens are directly subject to two legislatures.  Citizens are bound by the laws of  the EU  (Van  Gend en  Loos, European  Court of Justice  Case  26/2).   In cases of conflict of laws, European law is paramount (Costa  v.  ENEL,  6/64).  Those principles were established clearly before the UK joined.

Lord Reed, for the minority, argues:

In so far as the Miller claimants place reliance on rights under EU law as given effect in the legal systems of other member states, such as the right of UK citizens to live and work in Greece, there is no rule which  prevents prerogative powers being exercised in a way which alters rights arising under foreign law.

There is such a rule: it is explicitly stated in the Charter of Fundamental Rights of the European Union, which declares that “Every citizen of the Union has the right to move and reside freely within the territory of the Member States.”   Member states are further obliged by European law to “respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.” The UK has no authority to change this law – which is why secession is necessary before it can be done.

The central problem here is a conceptual one: it lies in the word  “foreign”.   Lord Reed locates all authority for the recognition of EU law solely in the authority contained in the 1972 Act.  He refers to the rule of recognition, but he does not go on to consider Hart’s other rules – rules of change, and rules of adjudication – which at that point passed, along with the rule of recognition, to the European Community.  The 1972 Act was necessary to extend recognition, but as it did not establish the rules of change or adjudication it is not the source of all the subsequent law.  Britain joined a union, if not in 1972, then in 1986 with the passage of the Single European Act, which has been part of European and therefore British law for thirty years. European law is not a foreign matter; it is a domestic one.

There are many examples of states forming unions with other countries.  In most cases  the relevant legislation referred to is not the legislation of the state that is joining but the legislation passed by the body it joins – for example, the UK for Scotland, or the USA for Hawaii.   (I say ‘in most cases’ because there are also examples where the relevant legislation is made by other states again – the union of Newfoundland and Canada, for example, was passed in the UK parliament.)  Equally, there are examples of states leaving unions – for example, Ireland, Slovakia, Croatia.  If Scotland was to become independent, would that mean that the law of the UK was cancelled as part of an obsolete treaty obligation?  Of course it wouldn’t.  When states secede, the law of the preceding union isn’t presumed to have no further effect – that would leave a gaping hole in the laws.  Law continues to have effect until it is changed.  When the UK leaves the EU, Parliament will probably want to pass legislation forestalling the application of precedents based on existing EU  law.  Good luck with that.

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