It has been argued by some that the European Parliamentary Elections Act 2002 (‘EPEA’) may present a particular obstacle to the use of the prerogative for the purpose of initiating the Article 50 process by which the UK will exit the EU. The argument concerning the EPEA essentially takes the form of a riposte to those who contend that the way in which the European Communities Act 1972 (‘ECA’) works means that it presents no obstacle to triggering Article 50 TEU using prerogative power. Even — it is said — if the ECA argument works, it founders when the EPEA is confronted.
I set out the argument relating to the ECA in a piece published several months ago. On that analysis, the ECA, far from creating domestic statutory rights, simply operates as a conduit for the domestic effect of EU law — by providing, via section 2(1), for the automatic domestic effect of EU law that is directly effective, and by providing a legal basis for the enactment of domestic secondary legislation giving effect to EU law that is not directly effective. Such a reading of the ECA is warranted given that it seeks 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. A similar argument was developed in some depth by John Finnis and has now been taken up explicitly by the Government in the case it has submitted to the Supreme Court in advance of December’s hearing. In particular, the Government argues that the ECA amounts to an ‘ambulatory’ model for giving domestic effect to international law — meaning that ‘the effect of international law obligations in domestic law changes as those obligations change at the international level’. On this analysis, as I put it in June, the ECA ‘does not …. confer any particular rights upon anyone’; rather, it provides for the domestic effect of such rights (if any) as are relevant in the light of extant Treaty obligations.
But the EPEA, it is said, is different, because it is invulnerable to the sort of characterisation to which the ECA — according to the above analysis — is susceptible. This distinction is said to arise because the EPEA does not serve as a conduit for rights that remain international or EU law rights. Rather, it is said, rights are set out on the face of — and are thus created by — the EPEA itself. The rights in question are the rights to stand for election to and to vote in elections to the European Parliament (‘EU electoral rights’). These rights, it is said, will inevitably vanish if the UK leaves the EU. And, the argument continues, it follows that the prerogative cannot be used to trigger Article 50, because that would set in train a process that may inexorably result in the removal of the rights explicitly granted by Act of Parliament. The related point is made that the rights in question — ‘Category III rights’, i.e. rights enjoyed in relation to the EU itself, as the Court in Miller put it — cannot be reinstated via domestic law following Brexit, because the rights make sense only if the UK remains a Member State. A similar argument is made in relation to ‘Category II rights’ — e.g. free movement rights — which are enjoyed in relation to other Member States.
What, then, is the position in relation to the use of the prerogative? Is its exercise for the purpose of triggering Article 50 ruled out by the EPEA? The answer to that question must turn on whether the EPEA creates statutory rights that would be placed in jeopardy by the initiation of the Article 50 process, and on whether the EPEA is to be interpreted as leaving open or foreclosing upon the possibility of a relevant use of the foreign affairs prerogative.
As to the nature of the pertinent rights, it is difficult to see how EU electoral rights can be anything other than — first and foremost — rights created by EU law. It is, for instance, perfectly obvious that no such rights could be provided for by UK law if the UK were not a Member State of the EU. To put the point another way, the Parliament of a State that is not a member of the EU could not, by enacting domestic legislation, vest such rights in its citizens. That is unsurprising, and serves to underline the fact that the rights in question are EU law rights par excellence. They are rights that are created by operation of EU law — specifically, Article 20(2)(b) TFEU, which provides that EU citizens ‘shall have … the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State’. If this provision of EU law did not exist — and if UK citizens were not EU citizens — UK citizens would have no EU electoral rights, even if the EPEA existed.
It is only once these matters have been appreciated that one can turn to the EPEA itself and begin to consider its relevant effects and implications. Section 8(1) provides that ‘[a] person is entitled to vote as an elector at an election to the European Parliament’ if one of certain conditions set out elsewhere in section 8 is fulfilled. Meanwhile, section 10 determines who is entitled to stand for election as an MEP by means of setting out the grounds for disqualification. But does any of this mean that Parliament has, by enacting the EPEA (and the relevant predecessor legislation), created domestic law rights to vote in elections to or to stand for election to the European Parliament?
As already noted, no such rights could be held by UK citizens if EU law had not created them. The better view, therefore, is that the creation of EU electoral rights is a matter of EU law, and that the EPEA simply affords access to and regulates the exercise of such rights at the domestic level. As David Feldman puts it in his chapter in Jowell, Oliver and O’Cinneide (eds), The Changing Constitution (OUP 2015, 8th edn), a dualist system like the UK operates by means of providing ‘channels’ so as to enable international law to have certain effects in domestic law and ‘filters’ that condition and limit the extent of those effects. EU electoral rights are and remain distinctively EU law rights that are ‘channelled’ through the EPEA and subject to those ‘filters’, or conditions, that the Act supplies. On this analysis, the EPEA takes the form of a procedural mechanism that is relevant to the exercise of EU electoral rights when — or if — those rights fall to be exercised in the UK.
Indeed, it is difficult to see how any Category II or III right can take the form of a domestic statutory right created by the UK Parliament. Such rights cannot be understood as rights created by domestic law — whether the ECA, the EPEA or some other piece of domestic law — precisely because they relate to matters that are beyond the province of domestic law. Category III rights, as rights that relate to EU institutions, cannot be created other than by EU law; meanwhile, Category II rights cannot be created other than by the legal systems of the other Member States in relation to which UK citizens, for as long as the UK is a member of the EU, are able to exercise and enjoy those rights.
On this analysis, the EPEA does not create any statutory rights. But even if it did — or even if one adopted a more expansive view of the category of things that cannot be done via the prerogative — it would not follow that the EPEA necessarily precluded the triggering of Article 50 under prerogative power. Whether the EPEA has such an effect can be determined only by construing the EPEA in order to ascertain whether it relevantly impinges upon the foreign affairs prerogative. From the perspective of those who contend that the EPEA does so impinge, the easiest line of argument is to suggest that the EPEA’s purpose would be frustrated if the prerogative were so exercised. What, then, is the purpose of the EPEA? One possibility is that its purpose is to entitle relevant individuals to vote in elections to and to stand for election to the European Parliament come what may. But that would be an odd way in which to understand the purpose of that Act, given that, as already discussed, the UK Parliament is not — and cannot be — in any position to create such an entitlement. The most that the UK Parliament can do is to make arrangements for the exercise of such EU electoral rights as are provided for by EU law, and the purpose of the EPEA therefore falls to be understood against this background. It would be bizarre to impute to Parliament an intention that the EPEA should serve a purpose that Parliament, as a domestic legislature, is ultimately incapable of securing.
The purpose of the EPEA is thus most naturally conceived of in contingent terms, as I argued briefly in the piece I wrote in June about Article 50, and as the Government now avers. If the relevant condition — namely, the existence of Treaty obligations that call for the making of arrangements for the exercise of EU electoral rights — no longer applies, the purpose of the Act is not thereby frustrated. Rather, the Act is, in effect, spent, just as the ECA will be spent when it has no relevant Treaty obligations upon which to bite. The fact that an entitlement is spelled out by section 8 of the EPEA may appear to introduce a significant conceptual difference between the operation of it and of the ECA. But that is not in fact the case. The EPEA may not — to use the term adopted by the Government in its argument to the Supreme Court — be ‘ambulatory’ in the way that the ECA is. However, it remains the case that the EPEA’s purpose is best understood in terms of affording access to and regulating the exercise of such EU electoral rights as UK citizens have under the EU Treaties. When EU law supplies no such rights in respect of the UK because the UK has left the EU, that does not mean that the purpose of the EPEA will be frustrated. It follows that, in the first place, using the prerogative to trigger Article 50 is not inconsistent with the purpose of, and does not frustrate, the EPEA.
I am grateful to Kenneth Armstrong, Lorand Bartels, Richard Ekins, Tom Fairclough, David Feldman, Hayley Hooper, Gavin Phillipson and Adam Tomkins for their comments on an earlier draft of this post and/or for discussion of related issues. The usual disclaimer applies.