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The Article 50 Case in the Supreme Court

Humpty-Dumpty’s Words are the Masters: Section 2(1) ECA 1972 means just what it is intended to mean and “Neither More nor Less”

By Annabel Partridge

The eleven judges of the Supreme Court are deliberating on the effect of section 2(1) of the European Communities Act 1972.  Does it act only as a conduit into the UK judicial sphere for EU rights, which remain wholly contingent on the duration of our EU membership and which will neatly evaporate on expiry of the Article 50 notice?  Or does section 2(1) “create” the EU rights in UK law, giving them statutory life independent of EU membership, thereby rendering them immune to disposal other than by another statute passed by Parliament? That is the question.

A whole heap of other submissions and statements have been made on top of those made in relation to section 2(1): the more you read them, the more they resemble an enormous pile of autumn leaves, stacked high by an assiduous gardener.  But at the very bottom of the pile of leaves lie the words in section 2(1).  Reading through the High Court judgment and the government’s and respondents’ submissions, there seems to have been a significant collective misapprehension as to how those words operate. This is very serious, not least because the government’s submissions have failed to pick up on their real meaning, when potentially that real meaning makes their case for them beautifully.

We need to burrow into the bottom of the leaf pile and take another look at those words.  Humpty-Dumpty’s words from Alice come to mind:

 “…When I use a word,” said Humpty-Dumpty, “it means just what I intended it to mean, and neither more nor less.” “But”, said Alice, “the question is whether you can make a word mean different things.” “Not so,” said Humpty-Dumpty, “the question is which is to be the master. That’s all”.

1. The words in section 2(1): main and subordinate clauses

All such [EU] rights,…from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law…

This section has been generally accepted as giving “legal effect” to EU rights and obligations in the UK. In this way we are said to have complied with our Treaty obligations in 1972 and with the later Treaties.  You can see the “legal effect” tag used liberally in the case, by all parties, in bold in the subsection quoted above. Further, most commentators see the wider wording “…are without further enactment to be given legal effect…”.  The conventional view is that section 2(1) thereby actively bestows “legal effect” on EU law in the UK.  The submissions of the respondents, the government and those of the fifth intervener, Lawyers for Britain, are liberally sprinkled with references to this “legal effect”.  The case does not really focus on the wording of the section as a whole but concentrates on the meaning of “legal effect” in terms of EU law’s status in UK law.  The respondents’ case, successful so far, is effectively that because section 2(1) gave “legal effect” to it, EU law has been fully rooted into UK domestic law by section 2(1) and can’t now be uprooted without another Act of Parliament.  The High Court agreed. 

The trouble is that if you look at the words in section 2(1) as a whole, they do not actively and/or directly bestow “legal effect” on EU law at all.  The conventional view, which appears in most of the textbooks as well as the court documents (the Government submissions at paragraphs 21(b) and 44 for example) is based on a misreading of the grammar of section 2(1).  Section 2(1) is one very long sentence and it is hard to identify the main clause and operative verb but it seems that the conventional view mistakes the phrase “…are without further enactment to be given legal effect..” for the main, operative clause when, in reality, these words are merely part of a subordinate clause.  The main, operative clause is the latter part, “…shall be recognised and available in law…”. The operative verb in the whole sentence is “shall”, not “are”. 

Before we get onto the main clause and what it means, and the consequences for the Supreme Court case, the subordinate clause deserves closer examination.  It does, after all, contain the magic words “legal effect”.  It reads, as underlined:-

"All such [EU] rights, etc...as in accordance with the Treaties are without further enactment to be given legal effect… shall be recognised and available in law….".

That “as” is important and appears to have been overlooked.  As a matter of grammar, and rather crucially, the words underlined, being a subordinate clause only, do not actively give the EU laws legal effect in the UK in the way an operative, active clause would do.  So, if they are not actively giving EU laws legal effect, what are they doing?

They are merely describing the relevant EU laws to which section 2(1) applies.  They limit section 2(1) to those EU laws that are supposed to be directly applicable or to be given direct effect (the ones that are deemed not to need “further enactment”), as distinct from those EU laws which have indirect effect, which do need further enactment and which are subsequently dealt with in section 2(2). (The government submissions half-recognise this limitation point in paragraph 21(b)).

Then, having established that section 2(1) is talking about direct-effect EU laws, the drafting takes an unexpected turn.  Instead of actually and expressly giving those laws “legal effect” there and then in the immediately-following active, operative clause, the drafting suddenly uses different words. The draftsman appears to have jumped horses half way round the track.  The main, active clause does not mention legal effect at all.  It says, as referred to above, “…shall be recognised and available in law…”. 

It appears that the relevant EU rights/laws “as…are without further enactment to be given legal effect” (i.e. direct-effect EU laws) are nowhere actually expressly put into “legal effect”.  The wording of the subordinate clause remains perpetually in the future tense and is unfulfilled.  Note the words “to be”. Section 2(1) gives the EU direct-effect laws in question recognition and availability in UK law, but not express “legal effect”.
 
The government’s submissions at paragraphs 21(b) and 49 skate quite close to understanding this but then miss the point entirely and veer off in another direction, to do with the EU rights which work outside the UK.  The government has entirely missed the true meaning of section 2(1). It has thereby weighed down its own case with unnecessary difficulties.

With me so far? If you are struggling, two clues are the words “such” at the start of the section and the “as” at the start of the subordinate clause.  The “as” clause is the twin of “such”. It is a shame that “All such rights…as…are…” is such a clunky and rather old-fashioned construction.  Nowadays it would probably be phrased “All those rights….which.. are...”  

Now we’ve got the hang of the grammar, try stripping out all the extraneous wording but leaving behind the bare bones of both main and subordinate clauses, and see how the whole thing reads:-

All such [EU] rights…as in accordance with the Treaties are without further enactment to be given legal effect shall be recognised and available in law” (main active clause underlined)

I hope light has dawned.  Remember, “shall” is the active verb in this sentence, not “are”.

2. Why it matters

If this is the correct way to read s.2(1), it means that “legal effect” is not technically what was expressly bestowed by s.2(1) upon EU law.  Although s.2(1) had referred in its subordinate clause to the need to give EU laws legal effect, it then failed to do so in its main clause, at least expressly.   Instead, the wording to focus on is “recognised and available in law…”. 

We do not know why the person drafting this section plumped for this wording and did not use, or mirror exactly, the wording in the subordinate clause.  He or she could have shoe-horned it in like this, for example,

…shall hereby have such legal effect and be recognised and available in law…”,

but this was not done. 

Now that we know that section 2(1) does not expressly give “legal effect” to EU direct-effect law, but instead “recognises” it and makes it “available in law”, we are left to decide what these words mean and why they were used instead of “given legal effect”.  Do these words just mean the same as “given legal effect”, in which case I am wasting your time and must let the government’s case stand up for itself, or fall, as the judges decide?  Or do the words mean something altogether different? If the words do mean something different, what was it?  What was the intention?

What if the very reason the section was drafted this way is that EU direct-effect law was from the start intended by Parliament to be treated somewhat differently from domestic laws?  It could be that the intention was for EU direct-effect law to be deliberately treated as retaining a separate, unaltered, quality: indeed a new type of law, equal, equivalent (in fact, superior) but not the same as UK domestic law, living side by side with it within our legal system. Maybe the point was to respect the “direct-effect” nature of the relevant EU laws and treat them differently.  Instead of section 2(1) giving them “legal effect” in the sense that domestic law has legal effect, which would render the EU direct-effect laws ordinary, maybe the aim was simply to recognise their extraordinary nature, and then stand back and allow them to function in the UK independently, directly and unaltered.

3. The Downton Abbey Analogy

Before I go any further, as an erstwhile law tutor, I must spend some time with the slower members of the class.  For those who are still in the dark about the whole main/subordinate clause issue, let’s use the same sentence structure as section 2(1) but with more vivid facts…. imagine ITV’s Downton Abbey.  You will recall Mrs Patmore was the cook.  She has written a long set of rules for the kitchen, where her word is law, and for all things related to food. One of her rules requires the serving of home-made cakes to the family every afternoon and this is to be a cast-iron rule.  Mrs Patmore’s difficulty is that she has no dominion over the staff working in the sitting room, where the family take tea, so she asks Mr Carson, the butler, who does have such dominion, to write an edict for the staff about afternoon tea:

All such cakes from time to time created under the Kitchen Rules, as in accordance with the Kitchen Rules are without further order to be served daily at afternoon tea shall be delivered to the sitting room at 4pm each day and made available on the small walnut side table.

Clarity not being Mr Carson’s strong point, the staff have to read this edict several times before they understand, but understand they finally do (maybe they take independent legal advice).  The edict orders certain cakes to be delivered daily to the sitting room and made available, etc. That’s what it tells them to do.  It does not order, directly or at all, that the cakes are to be “served, etc” (that order was in the Kitchen Rules, referred to in the subordinate clause).   The edict just says those particular cakes, which under the Kitchen Rules are to be served at afternoon tea, must be delivered and made available, etc.

Mr Carson, for whatever reason, has not included it in the edict, although he could easily have done so.  He could have written, at the end of the edict, “…and served to the Crawley family and their guests”.  That would have carried the relevant Kitchen Rule to its furthest and most literal degree.  But he didn’t do that.  (Perhaps he had secret socialist leanings and felt uncomfortable with the business of “serving”. Or, maybe he simply felt he had to break the meaning of “serve” down into specific tasks for the staff.) The point is that the “serving” bit of the Kitchen Rules did not expressly appear in the edict.  The wording of the edict was for delivering and making the cakes available.
 
The staff, having scrutinized the edict, and taken legal advice, probably think delivering the cakes at 4pm every day and making them available on the walnut table is enough to comply with Mrs Patmore’s rules.  And they are right. What does “serve” mean anyway? We will explore later what real difference, if any, there might be between delivery/making available and “served, etc”. 

Before launching into an examination of the meaning of “recognised and available in law”, there are two little footnotes to deal with:-

(i)    Mrs Patmore might well occasionally make other cakes which are not to be eaten at afternoon tea but, say, delivered to the village to help feed the poor.  They are not covered by this edict.  I expect Mr Carson or someone else may have to write a new note every time for those cakes, as that arrangement won’t be a daily occurrence - see section 2(2).

(ii)    I would make an observation about the punctuation in section 2(1) (and Mr Carson’s edict).  A comma before the word “shall” would have helped with ease of comprehension, but it would not change the meaning.

4. Are “recognised and available in law” and “given legal effect” the same?

(i) The UK’s Treaty obligations

It has been suggested that “recognised and available in law” means the same thing as “given legal effect”.  To say otherwise would mean that the UK did not implement the Treaty of Accession properly and would have been in breach of it from day one of our membership.   This would clearly be ridiculous.  The words “recognised and available in law” must therefore do at least some of the same job as “given legal effect” from the point of view of the EU and the Treaty.  They enabled the UK Parliament to comply with its Treaty obligations by doing the job of implementing, or parachuting, EU direct-effect law into UK law from outside.  This is the “conduit” point, to borrow a phrase from Professor Mark Elliott. To that extent, the words do not change the conventional understanding of section 2(1) as the mechanism for getting EU law into the UK.   There can be no argument that the UK complied with its Treaty obligations.  The EEC/EU was satisfied that we had complied with the requirements of the Treaty.  There is clearly at least some significant overlap in meaning between “recognised and available” and “given legal effect”: enough for the UK to have complied with its Treaty obligations.  EU direct-effect laws certainly have a place in the UK.

(For those who found the Downton Abbey analogy helpful, what we are looking at here is whether the words “delivered…and made available…” mean the same as “served”.  There is certainly some overlap, insofar as the former wording unarguably gets the cakes into the sitting room, placed on the walnut side table and capable of being eaten by the family there.  That is no doubt an accurate summary of Mrs Patmore’s notion of “served”, so she should be perfectly satisfied that her aim in the Kitchen Rules has been achieved). 

 (ii) UK law

The wording successfully parachuted the EU direct-effect laws into UK law through a hole in the sovereignty sky created by section 2(1).  EU law applies in the UK, and that’s that.  The issue arises, however, now that the UK is planning on reversing this situation, as to the exact status of EU law once it parachuted in and hit the ground.  Did it become the same as UK domestic law which has been debated, scrutinized and passed by the Houses of Parliament? Or could it have some other status?
 
It was up to the UK, in 1972, to decide this question, as an internal UK matter.  Having been satisfied that we had complied with the Treaty, the EEC/EU could not then interfere with the detail of how we planned on characterising EEC/EU laws, in constitutional terms.  It was up to us.  As well as acting as conduit, or creating the hole in the sovereignty sky, section 2(1) deals with the issue of the ensuing status of EU laws in the UK system. 

The Respondents said, and the High Court agreed, that EU direct-effect laws are treated as “created” in UK law by section 2(1).  They were wholly and properly made part of UK domestic law by virtue of by section 2(1) and are now inextricably stitched into our domestic law.  They can’t be unstitched without another statute. The assumption is that there is only one brand of domestic law in the UK, that which is created in and flows from Parliament, and EU direct-effect law must be a “sub-set” of domestic law. 

This ruling was, however, based on the conventional view that “legal effect” was given to EU laws by section 2(1). The Respondents are effectively saying that the words “given legal effect” amount to full adoption into domestic law.  They say that the EU rights, by virtue of section 2(1) allegedly giving them “legal effect”, must be treated as having been through the mill of proper parliamentary procedure (albeit in a split-second flash) and are created anew as UK domestic law. The logic is that there is no other way of rights or laws existing in UK law.

If section 2(1) did expressly give “legal effect” to the rights, a conclusion of full adoption in domestic law is hard to resist.  But, as we have seen, section 2(1) doesn’t do that.  It instead gives the EU laws “recognition” and makes them “available in law”.

The person drafting section 2(1) had a choice here.  He or she could have used the words “legal effect” in the active, operative clause of the long sentence that is section 2(1).  If they had been used, then (and I apologise for changing analogies here, but needs must) section 2(1) could be characterised as a whole-hearted hugging of the new EU rights to the UK’s legislative bosom, like a new, adopted and much-loved baby.  The baby would be treated in the same way, and be indistinguishable from, the other children in the family.   He would have immaculate adoption records, so legally there was no question that he was a child of the family.  In legal terms, this would be analogous to making the EU laws an intrinsic part of UK domestic law. What actually happened, however, is that these words were not chosen by the draftsman.  One might therefore conclude that in choosing not to use those words, there might have been a conscious decision not to take the EU laws on board in such an unreserved way and to give them altogether different treatment from all domestic legislation that had gone before.

 (Back in the sitting room at Downton Abbey, the question arises as to whether the Crawley family consider afternoon tea to have been properly served. The Dowager Countess might well think not, having stiffer notions of proper service, but the younger members of the family might well roll their eyes at that and say “Granny, of course tea is properly served, it’s here, isn’t it? Do you really need the maids to hand it to you formally? Really, you can take tea in more than one way nowadays.” My view is that the Dowager Countess is correct.  Leaving the cakes on the walnut side table without the maids offering them round is not proper service according to her time-honoured rules.  It is equivalent to “recognised and made available” and does not amount to “given legal effect to” in UK domestic law.  But are the younger members of the family also right in saying that buffet-style self-service rules can also have an enforceable place in the modern sitting room?). 

5. What does “recognised and available in law” mean?

Let us then examine the words which were ultimately chosen, “shall be recognised and available in law…”.  Certainly they give the EU laws recognition – the UK courts were able to “see” them, and were not blind to them as they would be with any other foreign law. In addition, the words must have given the EU laws some sort of legal status.  It is possible, however, and even likely, that the words were intended to mean something slightly different from the express “legal effect” as used in the subordinate clause, otherwise why would the draftsman have bothered to jump horses half-way round the track?  Different, but equivalent (or, as we now know, superior). 

The wording used seems to hold the relevant EU laws slightly at a distance, or at arm’s length.   “Recognition” suggests distance, between the viewer and the viewed, rather than a close embrace or adoption.  By way of contrast, as an alternative, the draftsman could have used “…incorporated into the law of the United Kingdom…” but, again, chose not to do so.  “”Available” sounds equally distant and off-hand, as if to say, “well, it’s over there if you want it”, rather than placing the EU laws directly into the public’s hands.

The wording shows not a little reluctance to treat the EU laws in the “same” manner as UK law.  It suggests, in fact, something quite distinct from full legal domestic adoption of those laws and, instead, the arrival of something new in UK law at that time, i.e. a parallel but unmerged set of laws, applying here by virtue of UK membership of the EU and not created via any debate or scrutiny in the Houses of Parliament.   It was not part of UK domestic law, but stood separately, equivalent but different, “recognised and available”, within our legal system.  (Later, of course, case law made clear that EU law would in fact prevail over domestic law where they conflicted, and this is consistent with EU laws always having been treated as a discrete body of law separate from domestic law).

Returning to our adopted baby analogy, the words suggest that rather than holding the baby close, and treating it indistinguishably from the other children, this baby was not to be whole-heartedly taken in to the bosom of the family. It is recognised as legally different from the other children of the family. The paperwork certainly doesn’t look as rock-solid as full adoption papers would, and might only amount to a glorified fostering arrangement, although it serves Social Services’ purposes well enough. Nevertheless, the baby lives with the family and is looked after and cared for properly for 43 years, so Social Services have no complaints, and to all intents and purposes the family all live happily together for years.  The only issue comes when it is time to give the baby up. A foster child is never “yours” to give up in the same way as your own biological children or a fully adopted child. No need to go to court at all. 

6.  Summary

Maybe, therein lies the answer: that section 2(1) was intended to comply with the Treaty obligations in getting EU direct-effect law into the UK sphere but it fought shy of making them fully domestic or indistinguishable from UK domestic laws.  It created space for a brand new category of law within the UK system but did not itself create them.  It used arm’s length words to characterise the status EU laws would have within the UK.

It appears that “recognised and available in law” is not the same as “legal effect”. Overall, then, "recognition" and "availability in law" are much weaker characterisations of the nature of EU law within UK law than "given legal effect".  “Legal effect” arguably roots EU laws firmly into domestic law but recognition and availability do not. Section 2(1) was indeed merely a conduit only:  it permitted the EU laws currently pertaining to the UK entry, but left them "undomesticated", in their raw form, unaltered by entry into the UK sphere and unadopted. One could say the EU laws travelled through the conduit of section 2(1) without touching the sides.

7. Direct Effect

I would add that this characterisation of EU law as recognised, equivalent but not the same as domestic law, accords comfortably with the expressions “directly applicable” and “direct effect”.  It is certainly arguable that this category of the EEC’s laws, as they then were in 1972, were deliberately intended to take effect directly in the Member States without any legal alteration or domestic adoption, and were distinguished from those EU laws which were to have indirect effect, such as most directives.

8. The Respondents’ and Government cases

If I am right in my analysis of section 2(1), and also in my analysis of what the words mean, it is hard to see how the Respondents can successfully make the argument that section 2(1) "created" the EU rights in UK law and that they are now fully domestic UK law. They are unadulterated EU laws.

Conversely, the words would make the case for the government and LFB much more comprehensible and potentially render them much more persuasive.  There is a strong argument for saying the words do exactly what the government lawyers say they do, i.e. they allow for a second, parallel type of law to function within the UK legal system, without being wholly adopted into domestic law. Section 2(1) merely permits EU laws created by or under the Treaties to function here “for the duration”.

If the EU direct-effect laws and rights never became part of UK domestic law by virtue of section 2(1), but were simply permitted by that section to exist and be used on their own terms within our system, then when the UK exits the EU, at the end of the Article 50 period, whenever that is, they will simply no longer apply here.  Like the Cheshire Cat, they will silently disappear (leaving only a smile in the form of lots of implemented directives).

9. The European Union Act 2011

Section 18 of this Act re-visited the question of EU law’s application within the UK legal system but as the wording used was the same, i.e. “recognised and available in law”, there is nothing further to add.

Conclusion

In conclusion:
  1. Section 2(1) of the Act does not expressly or by implication grant formal legal effect in UK domestic law to any EU laws intended by the Treaties to take direct effect, nor create such laws in UK domestic law;
  2. Instead, it expressly grants such laws recognition and makes them available in UK law as a distinct new category of laws separate from and independent of UK domestic law;
  3. For the purposes of the Treaties, the wording “recognised and available in law” in section 2(1) was sufficient to allow EU direct-effect laws to operate and be used within UK law and the UK therefore complied with its obligations under the Treaties.
As is the way of litigation, these issues have only become clear on reading and hearing the submissions made to the Supreme Court in December.  I have spent a year staring at section 2(1), having been asked at short notice last winter to teach Public Law to undergraduates in the spring term.  I am no expert… I am really a Land Law person but the words are the masters.

Annabel Partridge
15 January 2017

Annabel Partridge practised as a commercial litigation solicitor in the 1990s and until June 2016 was a Senior Lecturer at the College of Law (now University of Law).  She is now about to start work as a volunteer at her local Citizens Advice Bureau.