The government’s case at the Supreme Court

In its appeal, the government attacked the core of the High Court’s reasoning in the following way. It argued that EU law rights could not be comparable to UK statutory law. Because they had a foreign origin, which always required some domestic mediation for their legal effect and implementation, they were never statutory rights in full. Hence, their potential abolition through executive action through the notification of withdrawal from the EU under Article 50 TEU, was lawful. This process could be distinguished from the principle established in Fire Brigades Union, that the royal prerogative (i.e. the ancient powers of the executive that have not yet been put under any statutory framework) cannot amend statutory rights.Footnote ⁸ Because EU law rights were not full statutory rights, they did not enjoy this constitutional protection, and could be abolished through executive action. This is why the government could initiate the process of withdrawal merely by exercising its power to conduct foreign affairs.

In order to support this construction the government claimed that the European Communities Act 1972 incorporated the EU treaties into EU law in a very particular way. The Act did not transform EU law into a ‘source’ of United Kingdom law. The government’s case was that the effect of Treaties, regulations and directives of EU law was always ‘contingent’ on the British government continuing to approve EU membership. The direct effect and supremacy of EU law, which the UK courts had accepted for 44 years on the basis of the European Communities Act 1972, was therefore illusory or at least superficial. It had always been conditional on the British government’s continuing wish for the UK to remain an EU member. EU law applied because of the government’s wish to remain a member of the club throughout this period – and for no other reason.

The government’s argument compared the EU treaties to treaties of double taxation under the Taxation (International and Other Provisions) Act 2010, which provides that treaties may have domestic legal effect only as long as the government wishes to continue their operation. If the government withdraws from a taxation treaty, an act for which there is no need of parliamentary involvement, the corresponding domestic rights will disappear without any further parliamentary act. The same principle should apply to EU law. In his written submissions, the Secretary of State summarised this reading of the European Communities Act 1972 as follows:

The government’s case rested thus on the view that the ‘dualist’ approach of the British Constitution towards international law prevented EU law from becoming a source of UK law. This was an unusual interpretation of dualism, since this is precisely a doctrine of the mode by which international law becomes binding domestically. Nevertheless, the government’s argument was that the European Communities Act 1972 and the subsequent developments, for example the European Union 2011 Act (which affirmed in section 18 that the status of EU law is dependent on UK Acts of Parliament), meant that EU law was not really law in the United Kingdom. Therefore, the EU treaties, secondary legislation and Court of Justice judgments were not really UK law, because they were foreign imports, always at the mercy of the executive’s discretion.Footnote ⁹ The government’s case concluded:

The government’s case did not discuss the possibility that the European Communities Act 1972 might have taken a different position to EU law, than that taken for international law, or that subsequent Acts of Parliament might have achieved the same result. The government’s submission made little or no reference to most of the well-known cases of the House of Lords and the United Kingdom Supreme Court discussing how EU law has become part of the law of the United Kingdom.Footnote ¹⁰

Some of the government’s arguments were inspired by an argument made by legal philosopher and constitutional expert John Finnis. In a lecture and in a subsequently published essay, Professor Finnis argued that the effect of European Union law in the UK had been minimal.Footnote ¹¹ He offered a highly original interpretation of the European Communities Act, which departed from current orthodoxy on EU law in Britain and did not rely on any of the recent Supreme Court cases on the place of EU law in the UK. Finnis argued that: ‘our sovereign Parliament has rigorously abstained from enacting that we are to be or are members of the European Communities or Union or parties to their Treaties’.Footnote ¹² He thus compared the 1972 Act to the Taxation (International and Other Provisions) Act 2010 and argued that its function had been ‘to enable the United Kingdom to comply with its international, European obligations to the citizens of Britain and other member states (and thus secure the rights of those citizens correlative to those obligations) if and when those obligations and rights arose as the effect of our government’s choice to ratify the Treaty of Accession whereby the United Kingdom joined the European Treaties and Communities’.Footnote ¹³ In effect, for Finnis the role of EU law in the UK was conditional on the government continuing to wish to participate in the EU, which remained a matter of foreign affairs. Finnis made no attempt to explain the voluminous case law that discusses EU law in the UK and which has never set out a theory of the conditional effect of EU law. In any event, the government adopted many of these arguments.

The two applicants’ case

The case for the lead claimant, Gina Miller, a London-based activist and philanthropist, was in line with the High Court’s judgment and was made by leading barrister Lord David Pannick QC. The claim was that the European Communities Act 1972 had created statutory rights based on EU treaties that could not be removed by the exercise of the prerogative alone. Her case was that the Act had made a ‘major constitutional change’, by giving direct effect in domestic law ‘to rights developed at international level, with such rights having priority over other statutes (pre-existing and subsequent), and with their scope and effect being determined with binding effect by an international court’.

The submission accepted the standard account of the place of EU law in the UK, as one finds it in the case law and the academic literature. The lead claimant relied on the case of Thoburn v Sunderland City Council, where the High Court explained that the European Communities Act was a ‘constitutional statute’, which could not be impliedly repealed.Footnote ¹⁴ This account was unanimously endorsed by the Supreme Court in the Buckinghamshire case (better known as the ‘HS2’ case).Footnote ¹⁵ The joint judgment of Lords Neuberger and Mance in Buckinghamshire, with whom all the other judges agreed, concluded as follows:

The court ruled that the European Communities Act 1972 had created a special process of law-making, whereby EU law ordinarily takes precedence over subsequent law. This constitutional innovation was not against parliamentary sovereignty because it had been made pursuant to parliamentary sovereignty, through an Act of Parliament, as all constitutional change should. Parliament could always amend it by a new Act of Parliament.

The submission criticised the government for failing to recognise the ‘exceptional nature’ of the 1972 Act, which incorporated a body of rights under EU law into domestic law but also amended the operation of the dualist principle, to the effect that it opened up UK law to directly effective EU law. She also reminded the government that the 1972 Act has enjoyed ‘constitutional status’ by virtue of numerous judgments of the courts, including the House of Lords and the UK Supreme Court, and that as a result it could not be impliedly repealed. It can only be repealed explicitly. It followed from all these points that the Article 50 notification required statutory authorisation, since the automatic withdrawal that could follow would cause those statutory rights (or at least some of them) to be destroyed or frustrated.

The second claimant, Dos Santos, endorsed all of the above arguments and put somewhat more emphasis on the constitutional point. His representatives argued that notification of the UK’s intention to withdraw from the EU would be a ‘quasi-legislative’ step, in that it would effectively strip the European Communities Act 1972 of meaning. The Dos Santos submissions (at para. 45) drew attention to the fact that ‘the plain intent and effect of the 1972 Act was to make legally effective the United Kingdom’s membership of the EU and to bring about the constitutional change in the United Kingdom associated with EU membership’.

The Supreme Court majority

The court was split eight to three, and the majority accepted the applicants’ arguments. It did so, however, by placing great emphasis on the constitutional arguments. The majority ruled that the European Communities Act 1972 did more than give effect to the then EEC treaties. It authorised, the court said, ‘a dynamic process by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes’.Footnote ¹⁷ This means that ‘in constitutional terms the effect of the 1972 Act was unprecedented’.Footnote ¹⁸ The ruling was thus in line with both the standard case law of the UK courts and the constitutional requirements of direct effect and supremacy as outlined by the Court of Justice of the European Union.

The majority referred to the famous Factortame case of the House of Lords, which confirmed that EU law took precedence over all domestic sources of UK law, including statutes.Footnote ¹⁹ In that case the House of Lords had interpreted this case as being fully in accordance with parliamentary sovereignty, because Parliament created the 1972 Act as it had any other statute. Reflecting on Factortame, the Supreme Court majority concluded that ‘we would not accept that the so-called fundamental rule of recognition (i.e. the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal’.Footnote ²⁰ Everything that took place was in accordance with the doctrine of parliamentary sovereignty. The majority took the 1972 Act to have created a new method of making law in the UK, where ‘the EU institutions’ are the relevant sources of that law. The effect of the Act was ‘to constitute EU law an independent and overriding source of domestic law’.Footnote ²¹

The court also noted that the European Communities Act 1972 introduced a process of incorporating EU law in an entirely different way to that of the double taxation treaties with which the government submissions compared it. The European Communities Act 1972 incorporates rights and obligations that arise in EU treaties unconditionally, as long as these treaties are listed in section 1(2) of the European Communities Act. Every time a new Treaty is signed, the list has to be updated by a new Act of Parliament (most recently the European Union (Croatian Accession and Irish Protocol) Act 2013). The United Kingdom’s EU membership has been continually renewed by a new Act of Parliament every time there is a new Treaty, refuting the idea that the European Communities Act as originally made in 1972 is identical to the one valid in 2017.

By contrast, any changes to double taxation treaties, under the Taxation (International and Other Provisions) Act 2010, are merely to be listed by the government in an Order in Council, i.e. an act of the executive.Footnote ²² The statutory scheme is therefore entirely different in the two cases. It is clear for the Supreme Court majority that ‘the continued existence of the conduit pipe, as opposed to the contents which flow through it, can be changed only if Parliament changes the law’.Footnote ²³

The government’s submission was thus rejected not only because the European Communities Act had created substantive rights that cannot be repealed by executive action under the royal prerogative (as had been held by the High Court) but for the further reason that the Act had also created a new ‘constitutional process for making law in the United Kingdom’, which could not be repealed by executive action.Footnote ²⁴ The court concluded that it was impossible to interpret the 1972 Act as empowering the executive to abolish this process unilaterally:

The minority opinion

Lord Reed put forward a lengthy and spirited opposition to the judgment of the majority. He agreed with the government’s view on some of the effects of the 1972 Act. His first argument – accepting the points made by John Finnis – was that the European Communities Act 1972 did not impose any requirement that the UK be a member of the EU. Membership was always conditional. It depended on the government wishing to remain a member of the club. If so, then all the effects of EU law were conditional, too. This was a matter for the government since it was a matter of foreign affairs. For Lord Reed, a close reading of the European Communities Act 1972 revealed that the Act did not wish to change the well-established doctrine that adhering to treaties is always a matter for the government. As a result, the European Communities Act did not have the constitutional significance claimed by the majority. It did not create a new ‘source of law’. And even if it did, it would be a source only if and as long as the condition of membership was met. Lord Reed said:

In Lord Reed’s view, the effect of the Act was always conditional on the UK’s remaining a member of the EU, which was a matter for the executive to decide. Dualism was therefore still intact, without any amendment.

Lord Reed’s second argument touched on the theory of a ‘rule of recognition’. He said that EU law was in truth a form of delegated law, which was entirely dependent on the Act of Parliament that enabled it. He concluded that 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’.Footnote ²⁷ It followed for Lord Reed that EU law is not an ‘independent source of domestic law’ and the 1972 Act is not of fundamental constitutional significance. His conclusion was as follows:

The term ‘source’ seems to refer here to the identity of the law-maker and not the type of law – hence the sources of law continue to be Parliament and the courts. That was not changed by the 1972 Act. For these and other reasons Lord Reed held that the government was right to seek notification without authorisation by an Act of Parliament. Lords Carnwath and Hughes agreed with him in shorter judgments of their own.

The doctrine of simple sovereignty

One could read the case as turning on the interpretation of the 1972 Act and the way in which it does or does not affect the royal prerogative in foreign affairs. The majority of the Supreme Court read the Act as affirming membership in the EU and therefore limiting the prerogative, while the minority did not. From this, all sorts of consequences followed. For the majority, the 1972 Act brought about the direct effect and supremacy of the treaties that established EU law as a unique and new ‘source’ of law in the United Kingdom. For the minority, the 1972 Act did nothing of the sort. It introduced EU law on the condition that the executive would continue to affirm membership through its standard powers of foreign affairs. This account of the case, however, would in my view be inaccurate and incomplete. There is a deeper dimension to the case, which runs parallel to the question of statutory interpretation. The government and the claimants effectively relied on two rival doctrines of the unwritten constitution.

The government’s submissions relied on a doctrine that I shall call for convenience ‘simple sovereignty’.Footnote ²⁹ This theory originated in the work of A.V. Dicey, who believed that the British Constitution was unique among European constitutions in that it included only a small number of relatively simple principles: parliamentary sovereignty, the rule of law, constitutional conventions.Footnote ³⁰ Dicey’s view was that in the United Kingdom there was not, strictly speaking, a ‘higher law’ of the Constitution outlining, for example, principles for the separation of powers, for the role of the courts, or for a bill of rights. The most important constitutional rule was the simple rule of parliamentary sovereignty as a formal mechanism of law-making. For Dicey ‘the Queen in Parliament’, i.e. the process by which the House of Commons, the House of Lords and the Monarch jointly make an Act of Parliament and are the highest law-maker. The United Kingdom does not have and does not need any higher laws regarding rights or the separation of powers, according to this view. A process of making Acts in Parliament was sufficient for constitutional purposes. Dicey noted that other nations had relied on other institutional mechanisms in order to achieve similar constitutional goals. They used what British constitutionalists still describe as ‘rigid’ and ‘codified’ rules to protect the rule of law or bring about accountable and democratic government. Dicey was not shy about naming the reason: the British did not need them because they had a happier history of government. The transition from the omnipotent sovereign to the modern doctrine of limited government had been more or less seamless. Dicey writes: ‘[t]he historical reason why Parliament has never succeeded in passing immutable laws, or in other words, has always retained its character of a supreme legislature, lies deep in the history of the English people and in the peculiar development of the English constitution.’Footnote ³¹

The same idea was refined and elaborated by William Wade in his famous and very influential article ‘The Basis of Legal Sovereignty’.Footnote ³² Wade insisted that parliamentary sovereignty amounted to a ‘common law’ rule that required that judges should always obey statutes. Courts could never challenge the validity of a statute. This meant that a later statute would as a matter of logic always amend an earlier one with contradictory or competing content, so that it was impossible for any laws to be ‘entrenched’.Footnote ³³

It follows from the simple principle that one parliament cannot bind another that ‘there is one, and only one, limit to Parliament’s legal power: it cannot detract from its own continuing sovereignty’.Footnote ³⁴ So for Dicey there was no distinction between ‘constitutional’ and ‘ordinary’ statutes in the British constitution. All Acts of Parliament had the same force which was derived from the way they were made (hence the Parliament Acts of 1911 and 1949 created for Wade a new kind of delegated legislation). Wade observed that the rule of parliamentary sovereignty was not based on any legal rule. It was ‘a rule which is unique in being unchangeable by Parliament – it is changed by revolution, not by legislation; it lies in the keeping of the courts, and no Act of Parliament can take it away from them’.Footnote ³⁵

Wade thus famously concluded that parliamentary sovereignty could not be legally amended.Footnote ³⁶ He concluded that:

Wade argued that the rules constituting Parliament were a matter of fundamental presuppositions that were beyond any legal powers. They were for him a ‘constitutional fundamental’ that could not be lawfully changed even by an Act of Parliament. So he wrote that: ‘it is futile for Parliament to command the judges not to recognise the validity of future Acts of Parliament which conflict with a Bill of Rights, or with European Community law, if the judges habitually accept that later Acts prevail over earlier Acts and are determined to go on doing so. In this one fundamental matter it is the judges who are sovereign’.Footnote ³⁸ Wade thought that this was the necessary logical corollary of parliamentary sovereignty as a principle of the unwritten constitution.

The legal philosopher H.L.A. Hart gave further theoretical gloss to these views and coined the phrase ‘rule of recognition’, which has been occasionally mentioned by the Supreme Court. Hart did not say that parliamentary sovereignty was the factual basis of law, as Dicey had said. He offered a more complex factual basis for law, on the basis of a ‘union of primary and secondary rules’ that is based on some kind of consensus, mostly among legal officials. He considered, following Wade, that the legal system had a foundation in a set of ultimate rules and said that the ultimate rule of a legal system must be a ‘rule of recognition’ which sets out criteria for the validity of all legal rules, but is subject to no such rule itself.Footnote ³⁹ Hart thus affirmed the views of Dicey and Wade that the ultimate rules of the United Kingdom legal order were not constitutional or legal, but were a matter of political or merely social fact.

One very important result of Dicey, Wade and Hart’s assumption that there were no higher constitutional laws in the United Kingdom (like those that determine political power in the United States or France), was that British constitutional law had no rules applying to itself. There was no legal mechanism for amending parliamentary sovereignty, for example by way of a constitutional convention or by explicit amendment. Dicey, Wade and Hart therefore agreed that, in legal terms at least, parliamentary sovereignty was a continuing fact of British government that could not be legally amended. Only a legal revolution could change the Constitution. Such a revolution did not need a crowd storming the governments’ buildings, of course. A judicial usurpation of power could achieve exactly the same result, through the actions of judges in the courts. Parliament was thus de facto omnipotent except on the matter of its own omnipotence. Hart said that the ‘legal competence of the supreme legislature itself’ depends on the rule of recognition, which sets out the ‘ultimate criteria of legal validity’.Footnote ⁴⁰ Hart’s ultimate rule had two possible manifestations. The first was the ‘continuing omnipotence of parliament’ and the second the ‘self-embracing omnipotence, the exercise of which can only be exercised once’.Footnote ⁴¹ The ‘self-embracing’ view meant that Parliament could change the terms of its own sovereignty. He concluded, with Dicey and with Wade, that as a matter of fact ‘it is clear that the presently accepted rule is one of continuing sovereignty, so that Parliament cannot protect its statutes from repeal’.Footnote ⁴²

I believe that the arguments of the government and the judgment of Lord Reed are made in line with the framework proposed by Dicey and refined by Wade and Hart. He seems to take the European Communities Act 1972 to have been an ordinary Act of Parliament like any other. This is what the simple rule of sovereignty tells us must be the case, because Dicey left no room for constitutional statutes, only for constitutional ‘facts’. Lord Reed says, therefore, that just as any statute can enable a minister to enact delegated legislation by means of a statutory instrument, so the European Communities Act enabled European institutions to make EU law, whatever its content over the course of time. He writes that EU law ‘like legislation enacted by the devolved legislatures or delegated legislation made by Ministers, is entirely dependent on statute.’Footnote ⁴³

Lord Reed seems to endorse the similar distinction drawn by Wade between a sovereign legislature, whose authority is not derived by law (but only by fact), and a subordinate legislature, whose authority is merely legal. Wade put the distinction as follows:

Applying the same test (without, though, referring to Wade), Lord Reed says that the Westminster Parliament is sovereign and the European law-making authorities are subordinate. Their laws are not therefore ‘sources’, at least not in the required sense set out by Dicey. Lord Reed was here responding to and dismissing an argument by Helen Mountfield QC on behalf of an interested party, to the effect that leaving the EU would be an amendment to the ‘rule of recognition’.Footnote ⁴⁵ Made in those terms, the argument was explicitly relying on Dicey’s doctrine for the nature of sovereignty, because it assumed that all constitutional change was a matter of fact. Mountfield’s argument was that just as entering the EU had required a legal revolution, exiting it required one as well. It is important that this argument was not made by the two main claimants. The claimants rejected Wade’s analysis. They endorsed instead the rival view of the Constitution, the one endorsed by the majority. But Lord Reed responded to Helen Mountfield’s argument at length and took the opportunity to affirm Wade’s distinctions assuming that the British Constitution was a matter of political fact, just like Dicey and Hart had said.

Lord Reed thus said that because EU law derives its status from statute, namely the European Communities Act 1972, it follows that it cannot be a new source of law, i.e. not a source whose origin is traced to ultimate constitutional fact. It also followed that accession to the EU did not create a new rule of recognition. Lord Reed thus concluded that EU law is not and never was an ‘independent’ source of law. He said that EU law would be an independent source of law only if its authority relied directly on some ‘rule of recognition’, but instead EU law ‘depends on the ultimate rule of recognition’.Footnote ⁴⁶ For this argument EU law would have enjoyed recognition in the UK as a new source of law not as a result of the European Communities Act 1972, but only because of a newly-dominant foundational rule, a new ‘rule of recognition’ that had crystallised at some point after 1972. This would have to have been the result of a shift in attitudes, beliefs and dispositions in the relevant way, as indicated by Hart’s theory. But Lord Reed assumes that such a transformation did not happen.Footnote ⁴⁷

Lord Reed then refers to the rule of recognition by citing the only other reference to it in the history of the UK Supreme Court besides Miller, made by Lord Mance, according to whom ‘unless and until the rule of recognition by which we shape our decisions is altered, we must view the United Kingdom as independent, Parliament as sovereign and European Law as part of domestic law because Parliament has so willed.’Footnote ⁴⁸ Lord Mance’s account is a well-established account of the effect of EU law in the UK. It is not seen as in any way hostile to EU law. But Lord Reed draws this striking conclusion from Lord Mance’s words:

This is a puzzling statement, because the majority in Miller – which included Lord Mance – said exactly the opposite thing about EU law.Footnote ⁵⁰ The majority said that EU law is an independent source of law precisely because it was so recognised by the European Communities Act 1972.

This is where the majority and the minority differ. They are adopting rival doctrines of the unwritten Constitution. Lord Reed assumes, for the reason that I explained above, that the sources of the UK Constitution are exhaustively created by a fundamental rule of recognition, which is true as a matter of political fact. Since EU law does not derive from that fact, it is not a source of UK law in this sense. In other words, the question dividing the majority and the minority in Miller asks what Parliament was capable of doing through the 1972 Act – assuming it wanted to do it. Can a statute create new sources of law? This is not just a disagreement about the interpretation of the words of a statute, but about the presuppositions of constitutional principle that determine what a statute is.

Lord Reed seems to agree with Wade that a sovereign Parliament is not subject to any higher law but only to the political fact of a ‘rule of recognition’. Lord Reed does not say so explicitly, but his argument assumes precisely that. Otherwise, the reference to Lord Mance’s phrase is incomprehensible. The underlying premise must be that the ancient doctrine of dualism, according to which international treaties are not binding in the UK until specifically incorporated by statute, is not a matter of law but simply a matter of fact, taking the form of Hart’s ‘rule of recognition’. He thus assumes that no Act of Parliament could ever change such a doctrine, because as Wade and Hart explained, no statute can change the rule of recognition. The doctrine of parliamentary sovereignty for this view is beyond law, legally unalterable and inalienable. If any statute tried to change it (for the sake of EU law or for any other purpose) it would fail. It follows that EU law cannot be an ‘independent source of law’, in the sense given to the term by Lord Reed as something directly deriving form a factual and ultimate ‘rule of recognition’, without a legal revolution.Footnote ⁵¹ For this view, precisely because EU law was incorporated through an Act of Parliament, it could not have brought any change to constitutional fundamentals (because they are only determined by the fact-based ‘rule of recognition’). If EU law is dependent on the statute, then it is entirely derivative from it. It is not an ‘independent’ source of law.

Lord Reed’s view is thus similar (although, as we shall see below, not identical) to that of Sir William Wade. It assumes that the European Communities Act 1972 could not have amended the British Constitution, because it could not so amend it. No laws can amend our Constitution, conceived as the simple rule of sovereignty. The Constitution can only change by political fact as explained by Wade and Hart. Lord Reed seems to agree with this premise, even though it remains unstated, as he relies on precisely a ‘continuing view’ of simple sovereignty in order to relegate EU law to the status of derivative or secondary law. It is for this reason that Lord Reed’s judgment failed to convince the majority. In fact, Lord Reed’s judgment as well as Wade’s argument and John Finnis’ revival of them, are more than 20 years out of date: they fail to take into account the legal process whereby EU law has become part of the law of the United Kingdom.Footnote ⁵²

The doctrine of the legal Constitution

The majority view rejected Lord Reed’s interpretation of the British Constitution in its entirety. It confirmed what many scholars have said over the years, namely that the British Constitution is not as Dicey and Wade described it.Footnote ⁵³ The UK courts have now decisively abandoned the doctrine of simple or factual sovereignty as outlined by Dicey and Wade. They have done so precisely in order to accommodate the conscious political decisions of Parliament through which the law-making process of the United Kingdom has changed. The dominant view of the United Kingdom courts is that of the ‘legal Constitution’. As the majority in Miller eloquently explains, accession to the European Union brought about a legal change in the Constitution. The majority also assumes that the British Constitution is not a simple fact, but is law, which like all law in a democratic society is open to change through political deliberation. As Wade had predicted, the simple sovereignty theory had great trouble accommodating the effect of European Community law, which the Court of Justice of the European Communities had declared to be a fundamental doctrine of the European legal order since the 1960s. Faced with this dilemma, UK courts abandoned the simple sovereignty view, precisely in order to give full effect to the conditional supremacy of EU law in common with all other member states.

In the case of Factortame, the House of Lords did what Sir William Wade in 1955 said was impossible.Footnote ⁵⁴ The court declared that the European Communities Act 1972 could not be ‘impliedly repealed’ by a later Act of Parliament. In that case the Merchant Shipping Act 1988, which had introduced directly discriminatory restrictions on EU businesses contrary to the fundamental freedoms of the EU treaties, was effectively set aside by a court. The House of Lords introduced a distinction between Acts of Parliament that Dicey’s theory had explicitly rejected. Dicey had said that ‘there is under the English Constitution no marked or clear distinction between laws that are not fundamental or constitutional and laws which are fundamental or constitutional.’Footnote ⁵⁵ The same thing had been stated by Wade in his original study on sovereignty.

When William Wade commented on the case more than 40 years after his original article on sovereignty, he opened his essay with these words:

Wade was responding to a comment on Factortame by a leading judge.Footnote ⁵⁷ John Laws had argued that the incorporation of EU law had not changed anything about parliamentary sovereignty. It had only introduced a new rule of ‘construction’, according to which European law cannot be abrogated by implied repeal.Footnote ⁵⁸ Wade’s reply was that the ‘construction’ view was not sufficient to explain the change, because no rule in the 1972 Act, substantive or interpretive, could override the explicit words of the 1988 Act. The later ‘Queen in Parliament’ ought to prevail. Wade argued that only a higher law could limit a later parliament. By way of example, he referred to the Imperial Parliament, which could bind Colonial Parliaments in the Nineteenth Century by virtue of the Colonial Laws Validity Act 1865 (under which colonial legislatures were able to bind their successors as to the ‘manner and form’ of future legislation). Wade noted that this could happen only because the enabling Act was ‘higher law’ under which the colonial legislature was supposed to operate. He argued that it was possible to construct Lord Bridge’s speech in the case as allowing for the United Kingdom Parliament to legislate in a way that binds its successors by creating higher law. But this would have been a revolutionary change to the doctrine of parliamentary sovereignty. Wade’s criticism of the ‘construction’ view is in my view entirely correct. Factortame cannot be explained by way of some rule of construction. The change in the structure of the public law of the United Kingdom brought about by EU law is more fundamental and is exactly as Wade described it. It rests on a framework of higher law that constrains later Parliaments. How can such a higher law be created? The answer is simple. Parliament can create such rules.

Wade’s response appears to have convinced John Laws of its correctness and a few years later he had his chance to say so. In the case of Thoburn, John Laws had to deal with the claim that the Weights and Measures Act 1985 was incompatible with the requirements of a UK statutory instrument giving effect to an EU Directive (requiring the use of kilograms and grams for the sale of groceries). They argued that, contrary to Factortame, the domestic law should prevail and EU law be set aside. Informed by arguments made by Eleanor Sharpston, an EU law specialist who was then appearing as counsel for the council (and is currently an Advocate General at the European Court of Justice), John Laws abandoned the ‘construction’ view he had once defended. He accepted Wade’s argument and the analogy with colonial legislation, namely that the supremacy of EU law required some kind of law higher than ordinary statutes. But Laws now said that such a distinction was possible under the British Constitution. He drew a distinction, which in all likelihood would have shocked Dicey, between higher and ordinary Acts of Parliament. He called the former ‘constitutional’ statutes. A constitutional statute determines how an ordinary statute is to be read:

In Laws’ view Parliament can create constitutional statutes not by following any particular process, but because of the substance of the legislation it is bringing about. Parliament knows when an Act is constitutional because of its significance. In any event the courts can make their own judgment about it.

As is well known, this view was endorsed by the Supreme Court in Buckinghamshire in 2014, as discussed above.Footnote ⁶⁰ The Supreme Court accepted in that case that the Constitution is a set of legal principles that go beyond a mere rule of procedure. The Constitution is a comprehensive set of rules and principles concerning the legitimate exercise of power in a democracy of free and equal citizens. In the absence of a written Constitution outlining these rules, such rules must be found in the unwritten common law, extrapolated from concrete cases in the way that general principles emerge through the ordinary processes of legal reasoning.

This view of a ‘legal Constitution’, which is law and not fact, is reaffirmed by the majority in Miller. The distinction between constitutional and ordinary Acts is reaffirmed. Constitutional Acts are distinguished not by the way they are made, but on account of their content. So the European Communities Act 1972 is a constitutional act because of its content: it changed the terms of law-making in order to accommodate the EU treaties. It created a new method of law-making, whereby European institutions create laws that take effect in the UK directly without any other prior act of specific incorporation. The fact that Parliament decided to enter into this power-sharing agreement with other European states on the basis of treaties was a constitutional decision of the highest significance. This explains what Lord Bridge had already said in Factortame:

What is implicit in Lord Bridge’s argument is the underlying theory of the legal Constitution later outlined by John Laws and endorsed by the Supreme Court, according to which Parliament is able to make a decision of constitutional significance. The democratic process of law-making applies to law-making itself.

This democratic view of the Constitution predates Dicey. It is precisely through these powers that the great constitutional statutes of the past were made. So the Bill of Rights 1689 was made by Parliament in order to apply to itself and set out the proper relations between itself and the Crown.Footnote ⁶² How could this Act be possible if Parliament did not possess the power to enact constitutional change? Without such power, the Bill of Rights makes no sense. The same applies to the Act of Union. And if this was true in the seventeenth century, it must be true today. There is no reason to think that the democratic power that made these Acts possible has for any reason disappeared. If anything, it has been strengthened by universal suffrage and the recognition that fundamental human rights are to be equally held by all. Unless the Constitution ossified and froze at some point after 1689, Parliament continues to have the power to change its own law-making powers. This is what Factortame said. The same principle has now been affirmed by the House of Lords judgment in Jackson,Footnote ⁶³ and by the UK Supreme Court in Buckinghamshire, in Pham and now Miller.

In his recent work John Laws has explained that constitutional change is a matter of the flexibility and adaptiveness of the common law as the law that applies to the Constitution itself. The supremacy of EU law was something that could be given by Parliament but of course on conditions set out by the United Kingdom Constitution, so that ‘the reach of European law is ultimately a function of Parliament’s will; and it is of course not to be assumed that Parliament has given the European legislature carte blanche’.Footnote ⁶⁴ He explains how this was done. EU law is dependent on constitutional statutes, although it is not dependent on ordinary statutes. In this sense it is both dependent and independent.Footnote ⁶⁵ It is the same solution accepted in Germany, France and all the other member states of the Union: EU law is subject to the domestic Constitution, but not subject to ordinary statutes.Footnote ⁶⁶

It follows that Lord Reed’s disjunction between a radical new ‘rule of recognition’ and a subordinate delegated legislation is false. It is possible under UK law to have constitutional statutes that tell us how to read ordinary statutes. Creating them or repealing them does not change the mysterious ‘rule of recognition’; it is just a matter of constitutional law. Parliament is empowered to create constitutional statutes. This is then what the ‘legal Constitution’ view of the unwritten Constitution says about the Constitution as higher law as defended by John Laws and other scholars (who give it the name ‘common law’ constitution, to emphasise the fact that all statutory enactments are subject to the interpretation and judgment of the courts). This view has been accepted by the Supreme Court in every one of the constitutional cases of the last 25 years: Factortame, Jackson, Buckinghamshire and now Miller.Footnote ⁶⁷ This view assumes that there is no simple rule sorting out matters of sovereignty. The Constitution is a matter of law, not a matter of fact. So Dicey and Wade were wrong about constitutional law. The Constitution’s ultimate rules are legal rules, not matters of fact as suggested by Dicey, Wade and Hart. Because they are legal rules, they are subject to the ordinary practices of deliberation and argumentation as to their content. Legal deliberation determines which Acts are constitutional Acts and which are ordinary Acts, not brute force or social pressure or convergence in conduct. The unwritten Constitution depends on a deliberative process, like all laws.Footnote ⁶⁸ It follows that parliamentary sovereignty or the supremacy of Parliament is part of complex legal rules outlining constitutional essentials, addressing all the matters that a written Constitution also addresses: the powers and composition of institutions, the separation of powers, the nature of judicial review, the extent of fundamental rights and relations with international law, among others.

This is exactly what the term ‘common law Constitution’ means: the Constitution is developed by way of the whole set of relevant materials, statutes, referenda, judicial decisions and academic argument, but is subject to interpretation. The position of EU law in the UK did not just change by virtue of one provision in 1972, but by virtue of the totality of Acts that ratified treaties (several times since 1972, every time affirming the will of Parliament to be a member of the EU), as well as the totality of statutory instruments that implemented EU Directives and the decisions of the Court of Justice of the EU given effect in the UK and recognised as equal sources of legal argument as well as the political decisions that affirmed the process of sharing of sovereignty with other nations on the basis of the rule of law and reciprocity, under the Treaties. This is the Common Law Constitution.

Constitutional essentials

This is why Miller is a case of great constitutional significance. The government suggested that no major constitutional change happened when the UK joined the EU, because the words of the 1972 Act could not bring about any such change – only a ‘revolution’ could, under the doctrine of simple sovereignty as accepted by Dicey, Wade and Hart (and implicitly endorsed by Lord Reed in paragraphs 225-226). John Finnis’ ‘conduit’ metaphor sounded plausible precisely because it considered the 1972 Act to be an ordinary statute which could not make any change to sovereignty. It was thus narrowly conceived as a one-way ‘conveyor belt’ bringing foreign rights and duties into the law of the UK, just as the double taxation treaties do. Finnis refused to see the bigger constitutional picture, namely the fact that membership in the EU enables the UK to join a supranational institution of peace and legality which enhances the law-making powers of the UK by enabling it to co-legislate for the rest of the EU and to create reciprocal rights for all EU citizens of whatever nationality for free movement and non-discrimination. Strangely, John Finnis’ argument did not discuss the recent cases on the reception of EU law into the United Kingdom.

The majority rejected this argument. It accepted that Parliament can and does have a say on constitutional matters. Parliamentary sovereignty is a legal rule, to be changed by law through a democratic process, just as the 1689 Act changed the law by limiting the powers of the King and establishing the priority of Parliament over the Executive. This was conceived from the start as a constitutional statute, because otherwise it had no meaning, something that the Victorians, with the exception of Maitland, forgot.

The majority view in Miller rejected Wade’s view that adjusting to EU law has changed the so called ‘rule of recognition’ when it said: ‘we would not accept that the so-called fundamental rule of recognition (i.e. the fundamental rule by reference to which all other rules are validated) underlying UK laws has been varied by the 1972 Act or would be varied by its repeal’.Footnote ⁶⁹ A few pages later the majority make the same point when they say that ‘we cannot accept that a major change to UK constitutional arrangements’ can be achieved by a ministerial decision.Footnote ⁷⁰ By contrast to Dicey, Wade and Hart, the majority declares that constitutional change can happen ‘in the only way that the UK Constitution recognises, namely by Parliamentary legislation’.Footnote ⁷¹ The conclusion follows, they say, from ‘the ordinary application of basic concepts of constitutional law to the present case’.Footnote ⁷² As a result, the Court concludes that the incorporated EU treaties were ‘unique in their legislative and constitutional implications’, because for the first time a ‘dynamic, international source of law was grafted onto, and above, the well-established existing sources of domestic law: Parliament and courts’.Footnote ⁷³ Once again, the majority assumes that Parliament had the power to make this possible by creating sources above the traditional sources. The Dicey-Wade-Hart doctrine of constitutional ossification has been fully and clearly rejected.

The European Communities Act 1972 did bring about constitutional change. Parliament had the power to do so and used it. This was not a revolution, as Wade suggested, but the standard operation of Parliament’s well-known and frequently exercised legal powers, known to English law since 1689. In 1972 and in the subsequent Referendum and Acts of Parliament ratifying later treaties, membership in the EU was affirmed repeatedly as a reciprocal arrangement to share sovereignty with other European states. Constitutional change in Britain is now clearly a legal change, which can happen not through a supposed change to a mysterious non-legal ‘rule of recognition’, but through the enactment of a constitutional statute. Hence, the withdrawal from the EU, as the decision that breaks up this relationship of reciprocity with other European states, requires an Act of Parliament explicitly doing so.

Miller thus affirms what we already knew about the legal Constitution. The Constitution is a matter of law, open to legal deliberation and reasoning to be determined by the legislature, the executive and the courts working together.

Conclusion: theory and practice

The British experience with the unwritten Constitution has turned a philosophical question about the nature of constitutions into a doctrinal one. The question is: ‘what makes the Constitution true law?’ A written text which is made and amended according to certain special processes makes the question easy to answer in practice, as the examples of France and the United States show.Footnote ⁷⁴ Whenever there are public processes for making and amending a written Constitution, lawyers can point to the text for the start of an answer. Whenever, as in the UK or Israel, a text is absent, such answers are not possible.

For many years UK law remained under the spell of a ‘simple fact’ theory of Dicey, Wade and Hart, refusing to deal with the question of constitutional change. But the theory was never fully accepted, because it turned constitutional law into a pre-legal mystery, where routine developments took place as exceptional matters of social fact, not as a matter of law. The courts have now rejected this theory altogether. In place of the rigid Diceyan formula we now have the idea of the legal Constitution, which gives Parliament an explicit – although perhaps not unlimited – power to shape the Constitution. Accordingly, the unwritten Constitution is a system of principles, whose origins lie not in a fact of sovereignty or in the identity of the underlying ‘political community’ but in the legal transformation of the United Kingdom three centuries ago by way of the Bill of Rights 1688, the Act of Union 1707 and other constitutional statutes that created the higher law of the Constitution in line with principles of constitutional justice for equal citizens.

This is not, one should hasten to add, something unique to the unwritten Constitution. The same process of theoretical adjustment through interpretation is evident in all systems, including those of a written Constitution. The same dilemmas forced the French Conseil constitutionnel, for example, to go beyond the text of the Constitution, in order to accept the 1789 ‘Declaration of the Rights of Man and Citizen’ as a source of the French ConstitutionFootnote ⁷⁵ and the American Supreme Court to declare in Marbury v Madison that it had the power to review statutes on the basis of the constitutional text.Footnote ⁷⁶ In both examples the courts had to come up with a theory of the essentials of the Constitution above and beyond the written texts. These questions could not be answered from within the texts. This interpretive and self-reflective process of deliberation and judgment is thus inevitable in all constitutions. The Miller judgment has just confirmed that the United Kingdom’s unwritten Constitution is a constitution like all others.