The Vibe of the Constitution

One day I will provide a review of films for lawyers. One of the very best, that should be better known in the UK than it is, is the Australian movie, The Castle. The most famous scene is when a lawyer is asked to explain why his client should win. He cites “the Constitution.” When pressed on which particular provision of the Constitution he relies upon, he is unable to point to any specific section, but instead relies upon “the vibe of the thing”

In his dissent in the Miller decision, Lord Reed (at [177]) makes an argument that I have made repeatedly on this blog since last June

“the effect which Parliament has given to EU law in our domestic law, under the 1972 Act, is inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU. The Act imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU. It does not, therefore, affect the Crown’s exercise of prerogative powers in respect of UK membership… Further, since the effect of EU law in the UK is entirely dependent on the 1972 Act, no alteration in the fundamental rule governing the recognition of sources of law has resulted from membership of the EU, or will result from notification under article 50. It follows that Ministers are entitled to give notification under article 50, in the exercise of prerogative powers, without requiring authorisation by a further Act of Parliament.”

It is good that this argument, that was astonishingly not made before the High Court (see para 11) was at least put. It is based upon the express words of the 1972 Act. What is the response of the majority to it? It is on this that the result of the case turns. The key part of their reasoning is at paragraphs 78 to 81. What do they say?

The first claim is that there is a “fundamental difference” between variations in the content of EU law and withdrawal from the European Union, This is because the latter involves a unilateral action by the UK that changes UK constitutional law, whilst the former does not. If EU law were eliminated save for one directive on banana curvature, that would be fine, whilst its reduction to nothing at all would not.

This is very difficult to understand. It has no textual support as a distinction in the European Communities Act itself. The change in the application of EU law to the UK by withdrawal is mandated by EU law itself (article 50). There was and is nothing unilateral about that, it was agreed between the Member States. EU law changes in many different ways. Why is this change ‘fundamentally different’ from the others? Appeals to the long title and the side notes (para 88) of the Act might be justifiable if the words of the sections (which are the law) were ambiguous or could plausibly be said to have a meaning that they do not have on their face. They do not, and no reliance is placed upon the words of the Act. As Lord Reed states, no section in the Act states “the UK shall be a member of the European Union” or any equivalent.

Second it is said that EU law is a source of law, and not just law. It would be “inconsistent with long-standing and fundamental principle” for such a change to a source of law to be brought about by ministerial decision.

Again, this is difficult to understand. EU law has its status within UK law only because of the European Communities Act. It has no independent force in our domestic law. By contrast the common law, which is judge made, has no statutory basis. If EU law really were a source of law independent of an Act of Parliament, how could an Act of Parliament remove it from UK law? Legislation could not, for example, provide that future legislation ceased to be a source of law, nor could the legislature provide that what judges decide is no longer legally binding upon the parties without abolishing law within our legal system altogether. EU law within our domestic legal order is simply not like that. It is not an independent source of law, but is wholly dependent upon UK legislation. It is because it is not a source of law (ie anterior to posited law) that it can be removed by law.

The truth is that EU law is only effective within UK domestic law because the European Communities Act says so. It is, politely, surprising that the majority base their decision not upon the words of the Act, which in the key paragraphs they ignore, but on a rather more abstract enquiry into what they feel the right answer ought to be.

In the end, the case will probably be of little practical significance. We will leave the EU, and the dispute about what was once EU law’s constitutional status within the UK will become an historical curio. That said, and despite several attempts, I see no answer to Lord Reed’s dissent in the reasoning of the majority, and have consequently found it difficult to articulate what they are saying. Vague statements about ‘fundamental principles’ and basic ‘sources of law’ are little better than appeals to the vibe.

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11 thoughts on “The Vibe of the Constitution

  1. Erm. .. you saying that 8 of 11 law Lords got this decision wrong – just checking cos I need to ask how you think that this could happen? Just asking?

    • Agree with Hugo here. As to how, there are at least a few major factors here I think:

      – The poor arguments made by the government at first instance. Before the Supreme Court they weren’t that much better. The best argument (i.e., the one Reed accepted) wasn’t made clearly enough or forcefully enough.

      – The fact that various prominent judges had at various times simply assumed that parliament would be the one to take us out (see para. 99).

      – The psychological ones – of course they will be accused of being biased towards the EU, but there is also the inclination to agree with the judges at first instance after they were so vilified in the press, and not to be seen to be swayed by the press or the government. Let me emphasise that I think this factor was the smallest of these three,

      • If you look at the high calibre of the 11 judges in both the High Court and Supreme Court who have carefully analysed the arguments, then suggestions that “psychological causes” or less than superb advocacy have lost the case really don’t stack up.

  2. Ok… here’s what I think. The rule of law states that I am governed by the statutes of parliament. That is the contract I have made. I get the right to vote and I also get the right to be governed by statute – you pick the exact definition. You fuck with me but can point to an enactment in an act of parliament fine. You fail that test then you have to hope someone on the bench knows as little about reason as you. It’s not that you are wrong, it’s just you really can’t be right.

  3. You rebut your own arguments with your comment that the Act is the source of the law. It is an Act of Parliament and can’t be undone by the prerogative.
    It is very simple and comprehensible. You can’t smash up the conduit pipe; that is adminstrative vandalism.

  4. As to how the majority reached their decision, I completely agree that the first explanation offered above – the poor arguments made by the Government (at first instance especially, but also before the UKSC to an extent) – has some (perhaps the most) force.

    I was interested too, though, in the “psychological” reasons put forward by foarp.

    I am curious – and I am merely floating, rather than endorsing, this view – as to whether the reality of the situation in Parliament might have had any bearing on the majority? That is to say, given Labour’s (or, at least, its leadership’s) position on Brexit, it is fairly clear that the Government will be able to get its bill on Article 50 through Parliament without too much difficulty.

    Had that not been the case – and it was clear that all Labour MPs, say, would vote against such a bill, together with the SNP and Lib Dems – do you think that the majority’s conclusion might have been different? The practical reality, of course, is that only a finding that, legally, the Government must secure the consent of the devolved institutions could have potentially derailed Brexit altogether, and the UKSC stopped short of that – the decision has perhaps delayed the triggering of Article 50, but no more.

  5. The Government’s entirely unconvincing prerogative defence conflicted with its manifesto commitment that any UK decision on EU withdrawal would be decided in a referendum.

    The Government declined the Supreme Court’s repeated, to my mind, invitations to develop in oral argument statutory construction of the 2015 Act as a decision.

    This was the central argument in the Lawyers for Britain printed case, which appears to conflict with Lord Hughes’ statement at [275] of the judgment that “No-one suggests that the referendum by itself has the legal effect that a Government notice to leave the EU is made lawful” .

    No party expressly argued in its printed case or in oral argument that the word “referendum” in the 2015 Act should be given its ordinary meaning in the Oxford English Dictionary on statutory construction:

    “1. The process or principle of referring an important political question (e.g. a proposed constitutional change) to be decided by a general vote of the entire electorate; a vote taken by referendum. Cf. plebiscite n.

    “In early use chiefly associated with the Swiss constitution.

    “2. A written request for instructions from a diplomat to a government. Obs. rare.”

    The OED currently defines a referendum as decisive not advisory. This meaning is plainly consistent with this majority Government’s manifesto commitment.

    There is no textual evidence in the 2015 Act that Parliament intended anything other than the ordinary meaning.

    The printed case of Lawyers for Britain that statutory construction of the 2015 Act was required was before the Supreme Court.

    The least I think that can be expected is that at least one Justice could request evidence from the Oxford English Dictionary when it sits en banc; it did after all have four days to make the request. Did none of them, or the plethora of advocates, think to look?

    Therefore the Supreme Court’s judgment was wrongly and perversely decided in my view.

    The effect of losing is the two-year negotiating clock is not yet ticking as the Supreme Court has found no withdrawal decision has yet been made so the Government has more time to formulate its withdrawal policy.

    I suspect that will be secretly welcome.

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