Losing the vote: the referendum, Miller & dos Santos and Brexit

I need to make one point very clear at the outset. I was, and remain, fundamentally opposed to leaving the EU and think it will be a long- and short- term disaster for the UK – for our economy, our well-being, our environment, our workers, our citizens and EU nationals here to name but five areas of life EU law touches upon. I think the Leave campaign – rather, its main proponents, some of whom now hold Cabinet posts or are being touted as future ambassadors (!) – was shocking in its dereliction of truth and even more so in its ex post denials that it had done so. I’m well aware too, if the point this blog is about to make is thought a good one, that it may well be arrayed before the Supreme Court in a few weeks time, ammunition seeking to have the High Court judgment overturned, so securing the government’s position as one that need pay no formal heed to Parliament. At a normative level, I think that would be a very unwelcome and retrograde step. All that said, I did have and continue to have several legal concerns about the Miller litigation. Many have been expressed better and more contemporaneously than is this one. One niggling matter remains though. That is the focus of this blog. It is an issue with a solution though, one that is identified here too. Much has been written on the subject and most of it can be found on the UK Constitutional Law Association Blog or on Professor Mark Elliott’s Public Law for Everyone blog. I’d suggest anyone coming to this for the first time to dip in to any one of many excellent contributions already there. Mark kindly read over a first draft of this piece and made a host of helpful suggestions. All errors and views remain mine alone.

The key battleground, or one certainly, before the Supreme Court is going to revolve around the continued exercise of the right to vote in elections to the EU Parliament contained in s.8 of the European Elections Act 2002 on which see Mark Elliott’s recent post here and elements of Jeff King’s and Nick Barber’s most recent contribution. It is said that that right will disappear as soon as we leave the EU – assuming Article 50 to be irreversible – and since Parliament’s will expressed in the 2002 Act would thereby be frustrated, starting the withdrawal process cannot be done simply by the prerogative. The accepted constitutional position is that Parliament alone has the power to remove from citizens their entitlement to statutory rights, previously conferred by Parliament. It is, I think, accepted too by all – on both sides of the academic debate – that, were the UK to leave the EU, the effective exercise of the right to vote would be lost and that such a position is covered by the scope of the rule on prerogative vs. statute (i.e. the rule covers not simply the loss of rights but diminution of their effective enjoyment). It would be a contrivance beyond measure to seek to argue that elections could continue – the Parliament after all will continue to exist – given that the result of any such elections held would not mean parliamentary representation as there would be no UK MEPs.

This very short blog simply offers one small point to consider in that sub-debate. It is surely not beyond argument that one reading of s.8 of the 2002 Act would be that “A person is entitled to vote as an elector at an election to the European Parliament in an electoral region…for so long as the UK remains a member of the EU” (italics added) or some such similar qualifier. Indeed, that is the likelier more natural meaning. The High Court judgment after all involved and indeed was predicated on what could well be seen as a much greater “reading”, according to constitutional principles, and taking account of the constitutional background. I’m fairly sure Professor Finnis does not need me to defend him but that must be what he meant when he referred in his blog to “under EU Law” (a point which Robert Craig takes against him). It cannot have been the intention of Parliament firstly in 1978, when it established the first system of direct election, to have created something that would outlast any continued UK membership or indeed would even outlast the EU itself or its Parliament? The 2002 Act must surely be read as contingent on the continued existence of a European Parliament in some form? If so, is it such an egregious stretch to read the 2002 Act as subject to the UK’s continued membership? To do so, is is not, per King and Barber in their blog yesterday, “embrac[ing] the very approach to interpretation that [those who consider the High Court to have erred] reject in respect of the ECA 1972 and the broader case-law on the prerogative powers.”

Where then does that leave us? How, if at all, does that assist one way or another the argument on the prerogative? At first sight it takes us nowhere. It does not seem to offer a firm conclusion on whether the process can be kickstarted simply by government decision or whether Parliament must be involved. It simply asserts that the scheme of the 2002 Act foresees its own demise but does not predict, or require, how – rather, by whom – the fatal wound should be administered. Those advocating the High Court decision was wrong would assert that the implied words presume the UK being a member qua member state on the international plane, such status being subject to the prerogative power to conduct international relations as the executive sees fit. Those contending that the High Court judgment should be upheld would assert that even those implied words should be read subject to the wider constitutional principles – such as the pre-eminence of Parliament – and that Parliament, first in 1978 and then in 2002, must have legislated in full awareness that when it conferred rights, it reserved to itself alone the sole right to remove them. If Parliament had desired it otherwise, it was incumbent on it to design a different scheme and wording.

Both are attractive but stepping back is instructive. Those who support the High Court’s approach – if we take Barber and King as exemplars – consider that European elections point to be critical, to be the smoking gun:

It is, perhaps, worth emphasising that even if all of the critics’ arguments over the implications of the 1972 Act are accepted, the 2002 Act is quite sufficient, in itself, to prevent the executive triggering Article 50.

The generally agreed view – on both sides of the debate – is that what will be required, if the Supreme Court upholds the High Court is legislation; a resolution by both Houses will not be sufficient. If Barber and King – and other supporters of the High Court’s approach – are right though, it must follow that Parliament must be given much greater involvement in the withdrawal process than is perhaps currently acknowledged. The precise scope of that is still to be determined – and it would have remained so even if there had been no appeal – the scope of declaratory relief being left open by the High Court earlier this month.

There is an internal illogic in the claimants’ case. First, they argue the prerogative cannot be called up on to alter domestic law or deprive citizens’ of statutory rights. Triggering Article 50 does both, and at least does the latter. Secondly and however, all that is then required is the “intervention of Parliament”, something accepted by the High Court as a requirement in Miller (at [34]). This is the rub. The parliamentary intervention proposed must surely be more than currently seems to be envisaged? Indeed, this might be what Lady Hale was hinting at in her recent Sultan Azlan Shah Lecture in Kuala Lumpur (9th November), a speech that has generated a whole separate sub-story if its own. At a legal level, so far as I can see only Jeff King so far seems to have engaged with this aspect. If these are “statutory rights” (and of course there are issues here about that very issue), and if the legal position is that these cannot be removed or their exercise frustrated by the executive alone, then surely it must also follow that their removal must specifically be addressed by Parliament, and approved? Otherwise whatever lesser involvement Parliament does have is likely to be confounded by the common law principle of legality set out by Lord Hoffman in Simms ([2000] 2 AC 115, 131)

But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

Now – and I’m grateful to Mark Elliott for helping my thinking on this aspect – the counter to that is that the right conferred here on UK citizens, in the 2002 Act, is not the sort of right envisaged as being captured by the principle of legality. The Simms principle, it would be argued, extends only to common law rights, not those with origins in, or created by, statute. Without conceding that point, if that be correct, then surely we meet head-on the Thoburn principle – that the 2002 Act is a constitutional statute, and so would need specific repeal in any legislation purporting to authorise the triggering of Article 50? A general Act under which Parliament explicitly authorises the “removal, repeal or diminution of such rights under EU law that subsist in domestic law whether their source be an EU Treaty, Directive, Regulation, the 1972 Act or some other enactment” would – either on the principle of legality or under the Thorburn principle – not be viewed ex post as sufficient. What would be needed in whatever legislation eventuates after the Supreme Court decision would be a clear and express Parliamentary recognition that in authorising the triggering of Article 50, Parliament acknowledges, and accepts, the necessary consequence: the removal of the right to an effective vote in EU Parliamentary elections.

Raising that very legal problem thus portends the political solution though it would only be partial. It is not only the right to vote that would be lost. At the very least it would be all “category III” rights, referred to in Miller (at [61]) as the rights that flow from membership of the EU club: the right to vote, to stand in elections, to seek a reference to the CJEU and to request the Commission take regulatory action. These would all need separate iteration in any authorising statute and express acknowledgement of their removal, showing Parliament has squarely confronted what it is doing. That would that be enough provided that category III list is conclusive. That is unlikely. As just two examples, it must also include the right to petition the European Parliament and the right to have access to official EU documents (both under Arts 20 and 24 TFEU). These too would need to be addressed specifically in the Triggering Article 50: Parliamentary Consent Act 2017.

As to category II rights – rights of EU citizenship enjoyed in other member states by UK citizens – one side of the argument is that these are not functions of, let alone conferred by, domestic law at all. If the Supreme Court were to adopt that analysis, described by the High Court when rejecting it as “highly formalistic”, withdrawal under Art 50 would not engage the frustration principle at all. Any reduction or loss of such rights consequential on withdrawal would not be the reduction or loss of domestic rights. Such a line of reasoning might well not be followed. The High Court on this might well be upheld. The Supreme Court might well conceive them as EU Law rights conferred on UK citizens by the European Communities Act 1972 (albeit only capable of being exercised abroad). They include the rights of residence and of movement (and associated rights) and the right to seek diplomatic protection in a member state. These category II rights would then also be domestic law rights removed by withdrawal. If so, the solution must again be for the legislation authorising withdrawal specifically to address each of these rights and provide express parliamentary sanction for their removal.

Category I rights – those capable of replication in domestic law should the UK leave – would survive withdrawal. That is either because they were transposed through separate legislation (such as the right to equal terms for work of equal value, now in Chapter 3 of the Equality Act 2010) or because they take effect in domestic law by virtue of s.2 of the 1972 Act. That latter would include both SIs (such as the Working Time Regulations of 1998) or because they are themselves directly effective and directly applicable EU Law (as either Regulations or Treaty provisions). In all such cases, either the transposing legislation or the 1972 Act will remain in force unless and until separately repealed notwithstanding any withdrawal from the Union itself… and it would be that separate repeal (or repeal and confirm, as is being proposed in the Great Reform Bill) that constitutes Parliament’s express decision to remove rights it had earlier conferred. No separate traversing of these rights is therefore necessary in the Triggering Article 50: Parliamentary Consent Act 2017.

Jeff King’s fine discussion does not touch not any of this. As his minimalist option, he suggests a one-section Act conferring authority on the Prime Minister. That would, I take him to mean, comply with the ruling if upheld by the Supreme Court. He goes further though and offers his conditions option: the bill “would be the occasion for Parliament to secure a right to exercise genuine input into the manner in which negotiations for withdrawal shall take place.” He offers four principles to underpin that more expansive Bill, but – and this is critical – none addresses the continued domestic law status (or otherwise) of extant EU rights, the very matter upon which those supporting the High Court judgment found their view that it was correctly decided. Those four are:

First, Parliament must be given clear rights to notice, to comment on key negotiating positions and draft agreement text, and to a response from the Government to its comments. Second, the devolved governments and legislatures should enjoy formal participation in the consultation process in rough parity with the Westminster Parliament. Third, the Government’s stated notice deadline of 31 March 2017 should be respected (assuming it is not itself to blame for further delay through bullish behaviour). Fourth, there should be no attempt to load the bill with a variety of veto points that would have the effect of destroying the possibility of Brexit during negotiations on the exit agreement. If Parliament really wants a U-turn, it must do so openly rather than insidiously.

I am doubtful that if such a procedural Bill were introduced and passed, even one on the expansive terms Jeff King suggests, that it would be sufficient to allay the concerns above about the removal of substantive rights, and Parliament’s necessary role in that. I’m offering this point in a genuine spirit of inquiry. I’d be delighted if it could be shown how my thinking has gone awry – my concern about the case would become a non-issue for the Supreme Court. Yet, I really do not see how it can be maintained on one hand that statutory rights will be taken away by executive fiat while seemingly to suggest on the other that the remedy, the legislation said to cure that ill, needs to address “only” the process for approving withdrawal not the substance: what will be the effect of withdrawal? Of course such substance-oriented legislation would be possible – and I’ve tried to outline some of that above but it would involve a lengthier parliamentary process as it would require (in my view) the separate identification of all rights removed. It thus rather foresees the end of the game before a decision has been made to start it… but that would appear to be the logical implication of the route the High Court took.


David Mead is Professor of UK Human Rights Law at the University of East Anglia. Many thanks to Mark Elliott for reading over and for suggestions on an earlier draft.




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