Miller, EU Law and the UK

Abstract

This chapter considers the impact of the Miller decision on the relationship between UK and EU law. In keeping with the theme of the book, the ensuing discussion places Miller in the broader context of the case law and legislation that have shaped that relationship. The analysis begins with the relationship between UK and EU law pre-Brexit. The conceptual architecture of EU law is examined through consideration of its foundational precepts. This is a condition precedent to the discussion of the conceptual architecture of EU law in the UK prior to Brexit. The conceptual frame through which EU law was accommodated in the UK was legislative and common law pragmatism, coupled with statutory and judicial reserve grounded on normative principle. This admixture is evident in case law and legislation prior to Miller, and it underpins the Supreme Court’s reasoning. Miller represents continuity with the status quo ante in this respect, not a novel reconceptualization of EU law within the UK legal order. The focus in the second part of the Chapter shifts to the relationship between EU and UK law in the period between the triggering of Article 50 TEU and exit from the EU. There is discussion of the political and legal forces that shape the withdrawal negotiations. The UK remains fully bound by EU law pending exit, with the rights and obligations of membership, subject to qualifications laid down in the Lisbon Treaty. The corollary is that the CJEU retains its status as the ultimate authority on issues of EU law that are central to the withdrawal agreement, and subsequent agreement on trade and related matters. Thus, if matters require legal resolution, it would be for the CJEU to make the ultimate determination on matters such as revocability of the Article 50 withdrawal notice; the UK’s legal liability in relation to the costs of exit, with or without a withdrawal agreement; and the compatibility with the Lisbon Treaty of any transitional deal struck between the EU and the UK. The final part of the chapter concerns the relation between UK and EU law post-Brexit. The discussion begins with Miller and explains the ways in which the decision determined essential elements of the conceptual frame for that relation in a post-Brexit world. The remainder of this section explores the degree of control that the UK exercises over the connection between the two legal orders when we leave the EU. It might be thought that this is a non-issue, in the sense that the UK will have unfettered choice in this respect in a post-Brexit world. This is mistaken. The legal and political reality is that the control and choice wielded by the UK concerning the future relationship between UK and EU law ranges on a spectrum. It has maximal, albeit not absolute, control insofar as it is for the UK to decide on the terms of the European Union (Withdrawal) Bill 2017, including the extent to which it allows EU law and CJEU decisions to have any weight post-exit. It has only partial control over the relationship between UK and EU law in important areas where the UK wishes to be recognized as having equivalent regulatory standards as those in the EU. The UK has no control over that relationship insofar as EU regulatory provisions will continue to apply to any UK firm trading in the EU post-Brexit; while it would in theory be possible for the UK to enact separate regulatory standards the double-regulatory burden thereby imposed on UK industry renders this highly unlikely.