Francesca Strumia, Lecturer in Law, University of Sheffield
This piece expands on a previous one concerning the High Court’s stance on protecting EU Law-based transnational rights within the context of the Miller case. It examines the Supreme Court’s interpretation of the High Court’s position and the resulting implications for EU law. The significance of transnational rights persists for two primary reasons. Firstly, beyond the immediate impact on EU and UK citizens facing Brexit-related disruptions, it highlights the fundamental nature of individual rights within the EU legal framework. While legally permissible, a Member State’s withdrawal can potentially clash with core EU values: democracy, reflected in national decisions, and individual rights that transcend borders. Secondly, this issue will likely be addressed by the Court of Justice of the European Union (CJEU) through anticipated litigation in Irish courts.
The High Court previously addressed the safeguarding of transnational rights, as previously discussed. The Supreme Court judgment, however, does not directly engage with or resolve this matter. Its central argument posits that the UK’s withdrawal from the EU necessitates an act of Parliament due to the fundamental changes it would bring about in the UK’s constitutional structure. This viewpoint indirectly touches upon EU transnational rights in two ways. Firstly, it implies, unlike the High Court, that Parliament may not be solely responsible for safeguarding these rights. Secondly, it acknowledges the unique nature of the EU Treaties, employing this characteristic as a basis for its reasoning. Each aspect will be examined in turn.
Initially, the Supreme Court acknowledges the High Court’s analysis of EU law rights integrated into domestic law that would be impacted by withdrawal: replicable rights within UK domestic law, rights held by UK citizens in other Member States, and “club membership rights” such as participation in EU institutions. The High Court suggested that even the second category, though less clearly defined as domestic law, was intended by Parliament as “wider rights of British citizens” and thus not removable through ministerial prerogative.
The Supreme Court prioritizes the first category, setting aside the remaining two. It argues that if the loss of rights within the first category, most aligned with domestic law, cannot support the argument against prerogative use, then the loss of rights in the other two categories, encompassing transnational rights, holds even less weight. Conversely, if the loss of rights in the first category suffices, the other two become irrelevant. Consequently, the issue of transnational rights, tentatively approached by the High Court, is sidestepped in the context of the central constitutional question.
The crux of the Supreme Court’s argument regarding this constitutional matter lies in the distinctive character of EU Treaties. Here emerges the second aspect. Typically, the judgment reminds us, the royal prerogative encompasses treaty creation and termination, assuming this power doesn’t affect domestic law.
This assumption stems from two propositions: that treaties operate within international law, independent of domestic law, and that they don’t create or modify domestic laws or rights. However, EU Treaties are deemed exceptional. They not only govern international relations but also serve as a source of domestic law and rights, possessing an “unusual” nature and “unique legislative and constitutional implications.” This argument, echoing a landmark CJEU argument, highlights the EU Treaties’ exceptionality in establishing a “new legal order of international law.” This order’s subjects include not just Member States but also their citizens. Consequently, “Community law not only imposes obligations on individuals but also confers upon them rights that become part of their legal heritage” (Van Gend en Loos).
While familiar to those acquainted with EU law, these arguments take on new meaning in the context of a Member State’s withdrawal, as presented by the UK Supreme Court. The question arises: how do the rights and obligations of Member States within the EU Treaties, including withdrawal, reconcile with the rights bestowed upon citizens by this legal order, even “independently of the legislation of Member States” (as per the CJEU)? This constitutes a question of EU law, particularly since some of these rights fall outside the scope of domestic law. As noted in Lord Reed’s dissent, certain EU law elements rely on reciprocal agreements with other Member States or the involvement of EU institutions. Thus, transnational rights reemerge.
While this underlying EU law question, hinted at by the Supreme Court judgment, didn’t reach the CJEU in this instance, a variation of it might surface in future proceedings. This question carries systemic, theoretical, and practical implications. Systemically, it calls for identifying checks and balances within EU law that protect the interests of both national majorities and transnational minorities. Theoretically, the answer will determine the future significance of transnational rights. Practically, it necessitates identifying legal frameworks to safeguard these rights during EU withdrawal, both within EU law (duty of sincere cooperation) and beyond (e.g., does a host Member State become one’s “own country” as per Article 12 of the International Covenant on Civil and Political Rights?).
Ultimately, this potential question for the CJEU addresses the core issue exposed by Brexit: reconciling domestic democratic choices within Member States’ international rights and obligations with the individual transnational rights enshrined in the EU’s unique legal framework. The future of one of the 20th century’s most remarkable international legal creations hangs in the balance.
Barnard & Peers: chapter 27
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