Professor Finnis posed a powerful challenge to the Miller decision by contending that the claimant’s argument was based on the following syllogistic fallacy. (1) Statutory rights enacted by Parliament cannot be destroyed by executive action without Parliamentary statute. (2) The rights acquired by UK persons under the Treaties given effect in the UK by s. 2(1) ECA 1972 are statutory rights enacted by Parliament. (3) Therefore no executive action can be taken to terminate the UK’s adherence to those Treaties without authorization by statute.
John Finnis postulated what was in effect an alternative syllogism. (1) It is only statutory rights created by Parliament that cannot be changed by executive action without Parliamentary statute. (2) EU rights are not in that sense created by Parliament; there must be a statute to authorize application of EU rights in UK law, but that is the mere conduit for rights created through the Treaty and norms made thereunder. (3) It follows therefore that the executive can terminate our membership of the Treaty pursuant to the prerogative without seeking prior statutory authorization. There are however difficulties with this alternative syllogism.
First, proposition one is contingent, not a priori. There is a conceptual difference between rights that owe their existence to a UK statute and those that have an existence independently thereof through an international treaty. There is, however, no logical reason why the fact that the rights are derived from a Treaty leads to the conclusion that the executive should be able to act alone and extinguish those rights. This cannot even be regarded as the default position, since it is inconsistent with the Constitutional Reform and Governance Act 2010, which embodies the default principle that the House of Commons can prevent the government from ratifying an international treaty of which it disapproves, and with the default principle that the statute through which the Treaty rights have been incorporated must be duly repealed by a UK statute. It is moreover an axiomatic proposition that rights that owe their provenance to a treaty nonetheless take effect in UK law as domestic rights pursuant to the statute that gave effect to the treaty in UK law, a position reinforced by the European Union Act 2011, s 18.
Second, propositions one and two are based on contestable normative assumptions. It may be entirely fortuitous whether Parliament chooses to create certain rights in a free-standing UK statute, or whether it embodies them through adherence to an international treaty that contains the same rights, which are then given effect in the UK through a statute. It would be constitutionally arbitrary that the executive’s power to alter these rights should depend on which route is taken, and it is very doubtful whether Parliament would think differently of the rights made part of UK law in these two ways. This is more especially so since the rights contained in the UK statute may well have a mixed provenance, being dependent in part on pure domestic law, in part on international treaty and in part on EU law.
Third, proposition three does not follow inexorably from propositions one and two. The fact that rights recognized in a UK statute flow from a treaty does mean that they may cease to exist in the UK if they are altered in accord with the Treaty, and this can occur without specific parliamentary authorization for the particular change. Thus, the scope of EU citizenship rights expands or contracts in accord with changes in Treaty rules, EU legislation and CJEU decisions. This is duly taken into account through ECA s 2(1), which speaks of EU rights and liabilities that exist from time to time, thereby authorizing in advance such changes as might be made, subject to conditions specified in legislation such as the European Union Act 2011. The executive’s participation in making decisions at the international level that have implications for EU rights that pertain in nation states is, however, dependent on a decisional rule within the international treaty that provides the legal foundation for such participation and for the decisions thereby made, such as a rule about Treaty amendment or the procedures for enactment of EU legislation. The preceding does not, however, inexorably mean that the executive of its own volition can take action that will terminate EU membership and associated rights without parliamentary authorization. To the contrary, there is no decisional rule authorizing this executive action. It is no answer to point to Article 50(1) TEU, and claim that this is the requisite decisional rule that provides the legal foundation for its autonomous action, since it is the very interpretation of the UK constitutional requirements under Article 50(1) that is in issue, viz whether the executive can act in this autonomous manner.
Fourth, the distinction between rights created directly by a UK statute and those that owe their origin to a Treaty should not be determinative of this dispute, irrespective of whether Article 50 once triggered is irrevocable. If Article 50 is revocable then its triggering does not ipso facto take away the rights of the parties, but signals the beginning of the negotiation, and thus the distinction between the two species of right is not relevant. If Article 50 is irrevocable then the distinction should also be irrelevant, since it is unsound in terms of normative principle to allow the executive alone to make the decision that is wholly determinative of the rights associated with our EU membership.
Can I suggest another approach (with apologies to anyone who has already come up with this, and for anyone who has refuted the same)?
This approach is not to look at whether rights are created by EU law or UK law, but rather at whether rights once created by EU law can be taken away by EU law. Where that happens, such rights automatically cease to exist in UK law by virtue of the ECA without the need for further legislation.
Formerly, this could be done under the prerogative power. But since 2011, legislation is required for any amendment of the EU treaties (s2(1)(b) European Union Act 2011), which includes the EU Charter of Fundamental Rights, as well as all the other forms of EU fundamental rights. It seems therefore that Parliament has thereby taken away the prerogative power to remove those fundamental rights by amendment of the EU treaties insofar as they impact upon the UK. On this basis, one could ask whether, by implication, Parliament has also taken away the prerogative power to remove those same rights by other means, namely, by withdrawing from the EU treaties under Article 50 TEU. Admittedly, the general theme of the European Union Act 2011 was to prevent the extension of EU competences, rather than their contraction. But s2(1)(b) is not limited in this way. So I think the case can be argued either way.
The merit of this approach is that one can accept the ECA-as-funnel argument (which I support on the grounds, among others, that this is standard EU law doctrine), but also take the position that Parliament has asserted its veto power over changes to fundamental rights.
As to the revocability of an Art 50 notice, it is true that ‘[i]f Article 50 is revocable then its triggering does not ipso facto take away the rights of the parties, but signals the beginning of the negotiation’. But, it seems to me, that is also not important. What is important, rather, is what happens if the notice is not revoked. In that scenario, all rights will, ipso facto, be taken away. But this also means that revocability is a red herring. It says nothing at all, one way or the other, about whether there are any rights that cannot be taken away.
Lorand, thanksfor this. Three brief comments.
1. The first point you make (ie whether rights can be taken away at the EU Level) is dealt with expressly in point three of my blog.
2. The requiremeny of statutory authorisation for EU treat amendment pre-dates 2011. If the 2011 Act were applicable it would demand a referendum as well as statutory authorisation. Although the point is arguable, the dominant view is that it does not cover withdrawal.
3. It certainly does matter if the SC’s decision is predicated on irrevocability. However I agree that the case could be decided the same way as in the Div Ct even on the assumption that Art 50 is revocable. Mark Freedland and I haveput this argument in another blog on this site.
Paul, thanks for the replies. Mine to yours.
1. As I said, the value of this argument is that it works with the ECA as a funnel. I am not responding to your argument re municipal rights.
2. Unless I have this wrong, under the European Union Act amendment always requires parliamentary authorisation whereas only amendment with specific effects requires a referendum. I admit that withdrawal is not amendment. I am not saying the Act applies. I am saying that by extension an argument could be made that if rights cannot be withdrawn by amendment they cannot be taken away by withdrawal.
3. My point is that revocabity is legally irrelevant. So the Supreme Court could not base a decision on this notion, in either direction.
The problem with this article is that it sidesteps the fact of the referendum which was held pursuant to an act of Parliament. The activation of Article 50 is therefore not some arbitrary act of Government on a whim but is to give effect to the result of the referendum
The blog does not sidestep this issue at all. No one doubts that we had a referendum the result of which was a vote in favour of leaving the EU. The issue in the Miller litigation is whether the triggering of Art 50 can be taken forward by the executive acting alone or whether it requires parliamentary approval. That is an issue of constitutional law that is properly adjudicated by the courts and the issue addressed in this blog is part of the argument designed to resolve the preceding issue.
The Supreme Court needs to reconsider the 2005 reasoning of the House of Lords on Parliamentary sovereignty in the context of a referendum and the devolution statutes that was given in Jackson & Ors v. Her Majesty’s Attorney General  UKHL 56 (  1 AC 262):
My view is that the Supreme Court should find that Parliament decided the referendum was the UK’s statutory decision to leave the EU and that Parliament decided to hand its sovereignty to the electorate specified in the 2015 Act for the purpose of making this statutory high-policy decision.
This argument is supported by human rights instruments such as Article 21 of the Universal Declaration of Human Rights Human Rights:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
The argument (which is justifiable from the human-rights perspective that peoples have a right to self-determination) that the 2015 Act provided for the UK’s decision to leave the EU is central to the written submissions of third-party interveners Lawyers for Britain: