This post argues that a textual analysis of the ECA 1972 is inconclusive – the text neither conclusively supports nor rejects the “conduit model” (as advocated by Professor Mark Elliott) or the “EEC enlargement model” (proposed by Professor Nick Barber, Professor Jeff King and Tom Hickman). No side has delivered a “knock out blow” to the other on interpretation of Parliament’s intention.
It argues, too, that the Divisional Court’s approach in Miller on the question of interpretation of Parliament’s intention in enacting the ECA 1972 was also flawed. Firstly, on the basis that the Divisional Court mischaracterised the “constitutional statute” nature of the ECA 1972 as a factor relevant to the interpretation of Parliament’s intention (paragraph 92), when, as Professor Mark Elliott and Dr Hayley Hooper have pointed out, the characterisation of an act as a constitutional statute is a question of determination as a matter of common law, based on objective factors, and irrelevant to Parliament’s intention. Immunity from implied repeal that derives from a statute’s constitutional character does so in right of its objective, common law characterisation as a constitutional statute, not through the Court upholding Parliament’s inferred intention as to its statutory effect. Thus, it was erroneous for the Divisional Court to infer that, on the basis of the characterisation of the ECA 1972 as a constitutional statute, and in the light of “background constitutional principles”, that Parliament’s intention was not to allow the ECA 1972 to be subject to implied repeal or a fortiori effective abrogation through the exercise of prerogative power. From this flawed intermediate step, the Divisional Court then erred in attributing to the various sections of the ECA 1972 conforming interpretations of Parliament’s intention, co-opting the text to support its conclusion that Parliament did not intend the ECA 1972 to be affected by the exercise of prerogative powers (paragraph 93). In fact, it is argued, such an legislative interpretation could neither be legitimately deduced from the “background constitutional principles” nor from the inconclusive language of the various provisions of the ECA 1972.
That the academic debate and the Divisional Court’s reasoning focussed almost exclusively on textual arguments and analysis of the ECA 1972 amply demonstrates the need for a more comprehensive, contextual analysis of Parliament’s intention in enacting the ECA 1972 to shed further light on competing interpretative arguments. In particular, pre-EEC accession Parliamentary debates and contemporaneous EEC documentation at the time of the UK’s accession to the EEC are both valuable sources of evidence in construing Parliament’s legislative intention with respect to the ECA 1972. Neither of these sources was fully discussed in academic debate or highlighted in arguments regarding Parliament’s intention in the parties’ skeleton arguments prior to the Supreme Court hearing. The impact of Parliament’s pre-accession debates as regards its legislative intention is discussed in detail in my earlier post. This post now considers the relevance of contemporaneous EEC documentation and underlying EEC policies for the interpretation of Parliament’s intention in enacting the ECA 1972. In doing so, it is noted that, for the purpose of statutory construction, an English court may have regard to preparatory materials. As Bennion writes: “The court is entitled, in construing a treaty and any enactment based on it, to make cautious reference to the preparatory work of the treaty. Lord Wilberforce suggested that this should be done “only where the material involved is both public and accessible, and indisputably points to a definite legislative intention.” – Fothergill v Monarch Airlines Ltd  AC 251 at 278. (Bennion on Statutory Interpretation: A Code, section 221).
It concludes that contemporaneous EEC documentation does not wholly support the “conduit model” or the “EEC enlargement model”, but instead, advocates that, in enacting the ECA 1972, Parliament’s actual legislative intention combined aspects of both models. The true reflection of Parliament’s intention in enacting the ECA 1972 is, it is argued, best understood as a synthesis of these two competing models, varying according to subsidiary purposes of the Act, viz. giving effect to those provisions of EEC law then comprising the existing acquis communautaire or which would, at a later date, comprise the future acquis communautaire. This wider perspective which moves away from the binary choice between the “conduit model” and the “EEC enlargement model” is also valuable for the greater flexibility it allows in reaching conclusions regarding the wider legal issues in the case concerning the scope and use of the Government’s prerogative powers.
1. The “existing acquis” and “future acquis” – the EEC’s perspective
A central condition in the accession of new member states, both at the time of the UK’s accession in 1973 and subsequently, has been Member States’ insistence that prospective candidate countries accept the “acquis communautaire” to its full extent. The acquis communautaire (or “acquis” for short) is the corpus of the rights, obligations and principles that derive from all of the various sources of EU law – in particular from the Treaties, from legislation promulgated by EU institutions, and from decisions of the Court of Justice. By the time of the UK’s final application to join the EEC in 1969, it comprised fundamental rights and principles that were the juridical and philosophical basis of the EEC: the freedom of movement of persons, of services, of goods and of capital as enshrined in the Treaty of Rome, and the fundamental principles of supremacy of Community law (Costa v ENEL) and of direct effect (Van Gend en Loos), as by then laid down by the European Court of Justice, and many other rights, obligations and principles besides.
It is difficult to understate the exceptionally high importance place on new member states’ acceptance of the acquis communautaire to its fullest extent. In policy terms, acceptance of the acquis (and including the principle of supremacy of community law) was indispensable in creating a harmonious body of EU law, applied consistently and in the same way, across the Community. There is repeated and central mention of it from the outset in accession negotiations and in institutional documents. One of the reasons for the failure of the UK’s first accession negotiations in 1961-1963 was the UK’s position that it would accept the provisions of the Treaties, but not the remainder of the acquis communautaire. Following the UK’s second request to join in 1967, the Commission’s formal preliminary advisory opinion set out the Community’s expectation of acceptance of the full acquis: “Today, belonging to the Communities necessarily means accepting … their original charters – the Treaties… Similarly, new members will have to accept the decisions taken since the Treaties were adopted. These decisions are the fruit of an often hard-won compromise between the Six, and they have also established an incontestable de facto solidarity between them. It would be impossible and illusory to attempt to call them into question.” (Opinion on Applications for Membership, 29 Sept 1967). The Commission reiterated this requirement in its updated opinion in 1969 (Opinion on Applications for Membership, 1 October 1969), but with an increased emphasis on acceptance of future acquis in light of the Community’s growing ambitions for its future development (e.g. in the agriculture sector, economic and monetary developments, social field, and institutional field). The revised opinion also included for the first time an explicit requirement that applicant countries declare their acceptance of both the existing acquis and the future acquis as a pre-condition to the Community opening accession negotiations with the UK and the other candidate countries, Ireland, Denmark and Norway (paragraph 43). The existing acquis and future acquis in this sense being: (i) the existing acquis in existence prior to new member states’ accession, and the future acquis comprising pre-determined policy directions and the body of rights, obligations and principles that would develop after they became full members). Prospective member states’ acceptance of the existing acquis and future acquis was confirmed at the opening of negotiations at the Hague Summit on 1-2 December 1969.
The emphasis on new Member States’ acceptance of the acquis was carried through into the formal accession documents, as would be expected. The Act of Accession (part of the Treaty of Accession) provides in Article 2 for acceptance of the acquis to be a binding condition of accession and membership: “From the date of accession [envisaged 1 January 1973], the provisions of the original Treaties and the Acts adopted by the institutions of the Communities shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.” Acceptance of the existing acquis and future acquis was non-negotiable – any narrow dispensations that may be agreed with a new Member State would take the form of time-limited transitional measures on accession (Article 9, Act of Accession); no permanent derogations from any specific Community measures or other specific parts of the acquis were considered or agreed to. Various other provisions of the Act of Accession also reflect the requirement of new Member States’ acceptance of both of the existing acquis and the future acquis (see e.g. Articles 9, 149, 152, 155 of the Act of Accession).
2. The “existing acquis” and “future acquis” – the UK’s perspective
In the UK, prior to accession, giving effect to Community law was also seen in terms of this distinction. Ministerial statements on behalf of the Government both referred to the purpose of the legislation – what was subsequently enacted as section 2(1) of the European Communities Act – as being to give legal effect in the UK to both the existing acquis and the future acquis. Presenting the European Communities Bill for its second reading, Chancellor of the Duchy of Lancaster, Geoffrey Rippon MP described the purpose of section 2(1), quoting from the previous Government’s White Paper: “It would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member States… The legislation would have to cover provisions in force when we join and those coming into force subsequently as a result of instruments issued by the Community institutions.” (HC Deb 15 February 1972 vol 831 col 272, emphasis added). He then quoted the former Lord Chancellor, Lord Gardiner, speaking on an earlier occasion on the required legislation in the House of Lords: ““This legislation… would include an enactment applying as law in the United Kingdom so much of the provisions of the Treaties and of the instruments made under them as then had direct internal effect as law within the Member States and providing that future instruments similarly took effect as law here.” (HL Deb 8 May 1967, vol 282, col 1202). Geoffrey Rippon continued: “This is precisely what Clause 2(1) does.” (HC Deb 15 February 1972 vol 831 col 272). Lord Gardiner’s description of the intended purpose of the legislation (what would be the ECA 1972) refers to both giving effect to instruments constituting the existing acquis (instruments “as then had” direct applicability or direct effect as a matter of Community law) and instruments comprising the future acquis.
There is substantial evidence that, from the perspective of the EEC, the obligations of membership upon accession were acceptance of both the existing acquis and future acquis in domestic law, and that, from the perspective of Government, this is what section 2(1) was intended to achieve (the perspective of Government being a key aid in interpreting Parliament’s legislative intention: Pepper (Inspector of Taxes) v Hart  UKHL 3).
Distinguishing between the implementation of the existing acquis and the future acquis enables light to be cast on a number of legal issues arising for decision in Miller, and to approach these in a more precise way. In particular, the distinction between enacting the existing acquis and the future acquis affects how Parliament’s legislative intention in enacting the ECA 1972 may properly be described; it also helps to explain later cases (for example, R v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg  EWHC Admin 4) and later statutory approaches (for example, the European Union Act 2011). It also allows a more precise analysis as to whether, and if so in what respect, Parliament may have intended prerogative powers to remain in place when it enacted the ECA 1972.
3. Parliament’s legislative intention in enacting ECA 1972
Against this background to the UK’s accession to the EEC, this article argues that in enacting the ECA 1972, Parliament’s legislative intention in relation to section 2(1) was as follows:
(i) Conferring rights comprising the “existing acquis”: That section 2(1) would constitute the legislative means to confer or give effect to the specific rights and obligations which comprised the existing acquis (the acquis communautaire as at the UK’s date of accession).
(ii) A conduit for rights comprising the “future acquis”: That section 2(1) would constitute the legislative means to give effect to those rights and obligations comprising the future acquis, namely the acquis communautaire which would arise after the date of accession.
(iii) A right of amendment – the acquis may be subject to amendment by Government in exercise of its prerogative powers: That, upon accession, through its acquiring rights to vote on Community legislative proposals within the Council of Ministers (now the Council of the EU), Government may (with other Member States) amend the acquis communautaire, that is, both the future acquis and (semble) the existing acquis. Parliament must be deemed to have intended the ECA 1972 to accommodate changes in the future acquis and (semble) the existing acquis, since it must be taken to have passed the ECA 1972 in full knowledge of the terms of the Treaty of Accession and the Treaty of Rome, under which the Government would acquire and would be empowered to exercise legislative powers within the Council of Ministers to agree new Community law legislative measures, and to amend and repeal Community law measures, without any further reference to Parliament. In this respect, I disagree with the doubts expressed by Mikolaj Barczentewicz (Consequences of the High Court’s reasoning in the Article 50 Judgment: EU Law-making Unlawful) that UK ministers’ participation in EU law-making within the Council of the EU is unlawful to the extent that it diminishes rights, since (1) no express provision conferring such power is contained in section 2(1) ECA 1972, and (2) on the basis of the Divisional Court’s decision in Miller, the Government cannot use prerogative powers to cut across or diminish individual rights. By refining the analysis of Parliament’s legislative intention in enacting the ECA 1972, with respect to existing acquis, future acquis, power of amendment and power of withdrawal, it becomes possible to confine Miller to its facts in relation to withdrawal, without casting doubt on executive participation in EU lawmaking more widely. As a necessary and fundamental part of the UK’s participation in the EEC, there is ample evidence in pre-accession debates for the proposition that Parliament accepted that wide powers to legislative would be exercisable by Government within the EEC without the possibility of prevention by Parliament, and that this necessarily also included the possibility that the acquis would be amended by Government. Distinguishing a power of amendment from a power of withdrawal also provides a ground on which to distinguish R v Secretary of State for Foreign and Commonwealth Affairs, ex p Lord Rees Mogg  EWHC Admin 4: in this light, the Divisional Court’s observation that there was “insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the Treaty of Rome” can be seen as supporting the contention that the Government may amend the Treaties (and by implication, the remaining existing and future acquis), but that, on the basis of arguments below, this is distinct from a right of withdrawal.
(iv) No right of withdrawal – the acquis may not be removed to render section 2(1) otiose without the consent of Parliament: That section 2(1), in its role as the legislative means to give effect to the existing acquis and future acquis, should not be rendered otiose without the consent of Parliament. Implicit within this intention is that Government should not use its powers under the Treaty of Rome (and subsequent Treaties) in such a way as to result in a situation where section 2(1) becomes an “empty conduit”, a legislative means for the recognition and enforcement of “zero rights and obligations”, without the consent of Parliament. This includes the circumstance where Government now proposes to use such a power to give notification of the UK’s withdrawal under Article 50. (This aspect is discussed in my earlier post here).
4. The ECA 1972 as a “conduit” – but only with respect to the future acquis
One of the principal two conceptions of the ECA 1972 advocates that Parliament intended section 2(1) to operate as a “conduit” for the transmission of rights (the “conduit model”): in Professor Mark Elliott’s view: “The Act is centrally concerned to ensure that “such rights, powers, liabilities, obligations” and so on as are “from time to time provided for by or under the Treaties” have effect in UK law. The Act does not, however, confer any particular rights upon anyone. Instead, the purpose of the Act – or of the will of Parliament in enacting it – can be understood to be enabling the UK to discharge such obligations as it has from time to time under the EU Treaties, by enabling EU law to have such effect in the UK as those Treaties require.” This argument is made on behalf of the Secretary of State before the Supreme Court (Appellant’s skeleton argument, paragraphs 7, 44 and 49), advocating that section 2(1) was intended by Parliament to take effect as an “ambulatory” provision, conferring in domestic law those rights which “flowed” from the Treaties.
On the basis of the analysis of the existing acquis and future acquis, it is evident that in enacting section 2(1), Parliament intended it to operate as a “conduit” in the way Professor Elliott and the Secretary of State argue – but, it is suggested, and critically, only with respect to the future acquis. In other words, only with respect to the “rights, powers, liabilities and obligations” whose content, by definition, it could not know at the date of enactment of the ECA 1972. But with respect to the existing acquis, this post suggests that, in enacting the ECA 1972, Parliament did indeed have a positive legislative intention to confer specific rights.
5. The ECA 1972 – a positive intention to confer specific rights comprising existing acquis
In enacting the ECA 1972, Parliament did indeed have a positive legislative intention to confer specific rights. This argument rests on two propositions: (1) first, the specific rights comprising the existing acquis were capable of ascertainment by Parliament in advance (with the minor exception of those rights, obligations and principles arising between the date of its enactment of the ECA 1972 and the UK’s date of formal accession); and (2) Parliament is deemed to intend the results of its actions (acta exteriora indicant interiora secreta): Parliament could have voted against the European Communities Bill, and had it done so, the rights comprising the existing acquis would not have been conferred as a matter of UK law, by virtue of the principle that international treaties are not self-executing (“Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation”: J H Rayner (Mincing Lane) Ltd v DTI  2 AC 418, 500, per Lord Oliver). The fact that Parliament voted in favour of a Bill which would confer those specific rights, in circumstances when it had a veto against their introduction in domestic law, supports the view that Parliament had a positive intention in passing the Bill to confer those specific rights.
6. Government’s final decision on UK accession – was ECA 1972 therefore merely “facilitative”?
Nonetheless, in the light of the chronology of accession steps, doubt could still be cast on this conclusion by those in favour of the conduit model. The steps to the UK’s accession to the EEC (and the other Treaties) were as follows: (1) Prime Minister Edward Heath signed the Treaty of Accession on behalf of the UK Government on 22 January 1972 which provided for formal accession to take effect from 1st January 1973, subject to deposit of the required instruments of ratification no later than 31st December 1972; (2) Parliament voted in favour of the Bill on 13 July 1972 and the ECA was formally enacted on 17 October 1972; and (3) the UK Government ratified the Treaty of Accession the following day on 18 October 1972. It must be borne in mind that the decision of whether or not to ratify the Treaty of Accession was entirely a decision for Government, in exercise of its prerogative treaty-making power. It could have changed its mind and decided not to ratify – as Norway indeed did, and as the Treaty of Accession contemplated as a possibility, in provisions to redistribute votes in the Council of Ministers should a particular prospective Member State fail to ratify. Against this background, did Parliament hold a positive legislative intention to confer specific rights comprising the existing acquis, or was its intention merely “facilitative”, that is, to put in place the requisite legislative machinery, but be content to leave the final decision on ratification (and thus, indirectly, on conferral of those rights) in the hands of Government? If so, then this would bring Parliament’s intention back to the conduit model, with respect to the existing acquis as well as the future acquis.
Parliament’s intention in enacting the ECA 1972 will, by definition, have existed on the date of enactment, and it cannot vary depending on the possible subsequent acts of third parties. It is on that date, for present purposes, that the Court must determine whether it had an intention to confer specific rights included in the existing acquis, or to leave the decision regarding their conferral in the hands of Government. Parliament should be deemed to have intended to confer specific rights in this case, for the following reasons: (1) in passing the ECA 1972, Parliament did all that it could to, that was within its power, to enable those rights to be conferred; and (2) it is common for Parliament to delegate legislative power to Government to work out the fine details of legislation, Parliament itself having determined the main elements of a policy framework. However, in the present case, both Parliament and Government have the same binary policy choices: both Parliament and Government have a choice between acting in a way which enables or chooses the conferral of specific rights (or in the wider sense, accession), or in a way which prevents or rejects those outcomes. Where Parliament has identical policy choices to Government, to hold that its intention was merely “facilitative”, that it intended to create the necessary legislative machinery for the conferral of specific rights, but that it intended to leave the final decision on their conferral to Government, is to suggest that Parliament has abdicated its own legislative function. It is suggested that the Court should be slow to infer that this is what Parliament had done.
Accordingly, based on contemporaneous evidence, there is evidence to support the view that, in enacting the ECA 1972, as part of its purpose, Parliament intended to confer those specific rights comprising the existing acquis. The frustration of that purpose by the Government’s use of its prerogative renders that use unlawful: R v Secretary of State for the Home Department ex p. Fire Brigades Union  2 AC 513 (“My Lords, it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute”: per Lord Browne-Wilkinson at 552). Equally, those rights comprising the existing acquis would constitute statutory rights, and the use of the prerogative to undermine them would be contrary to The Case of Proclamations (1610) 12 Co, Rep. 74: “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm.”
(Posted prior to release of Supreme Court decision (24 January 2017))