Brexit As Well As The Safeguard Of Eu Transnational Rights - Human Activity Two The Supreme Court’S Position

Francesca Strumia, Lecturer inwards Law, University of Sheffield

This ship service is a follow-up to the post on the High Court’s set inwards Miller on the safeguard of European Union Law transnational rights. It considers what the Supreme Court judgment makes of the High Court set inwards this respect, together with what European Union police force questions it implies every bit a result. The interrogation of transnational rights has non lost momentum for 2 reasons. First, beyond the immediate implications for the few 1000000 European Union nationals inwards the UK, together with Great Britain nationals inwards the EU, whose lives stand upward to locomote disrupted yesteryear Brexit, it points to the really cloth of the citizens’ private rights inwards the European Union together with thus to the nature of European Union law. Withdrawal of a Member State, whilst expressly provided for inwards the Treaties together with whilst a legitimate sovereign determination nether international law, risks pitting 2 fundamental values underpinning the European Union monastic tell i against the other: republic (as expressed yesteryear the volition of majorities or arguable majorities at the national level) together with private rights that cutting across borders. Second, together with relatedly, it is a interrogation that the CJEU volition probable direct keep to address if the quandaries surrounding withdrawal ultimately accomplish its docket, every bit is expected through the planned litigation inwards Irish Gaelic courts.

The High Court inwards Nov flirted amongst the interrogation of the safeguard of transnational rights, every bit I analyzed inwards the previous post. The Supreme Court judgment does non address the interrogation directly, allow lone respond it. Its fundamental signal is that withdrawal of the Great Britain from the EU, yesteryear resulting inwards removal of European Union police force every bit a root of law, volition create a fundamental modify inwards the UK’s constitutional arrangements. Such a momentous modify cannot locomote triggered yesteryear prerogative together with requires an human activity of Parliament. In weaving this argument, the Supreme Court judgment bears on the employment of European Union transnational rights inwards 2 respects. First, directly, because other than the High Court, it suggests that safeguard of European Union law’s transnational rights is non necessarily inside the remit of Parliament. Second, indirectly, because it engages amongst the special nature of the European Union Treaties together with uses such specialty every bit a foundation for its argument. I volition reckon each expression inwards turn.

From the foremost perspective, the Supreme Court recuperates the High Court’s analysis of the European Union police force rights that direct keep gained domestic police force condition together with that withdrawal volition affect: rights capable of replication inwards Great Britain domestic law, rights derived yesteryear Great Britain nationals inwards other Member States, together with ‘club membership rights’ such every bit rights of participation inwards European Union institutions (par. 69-73). The High Court had suggested that fifty-fifty rights inwards the 2d category, albeit harder to characterize every bit domestic law, were intended yesteryear Parliament every bit ‘wider rights of British citizens’, together with hence could non locomote removed yesteryear ministers exercising the prerogative. 

The Supreme Court focuses on the foremost category together with eschews the other two. Its declaration inwards this honour is that if the claimants cannot rely on loss of rights inwards the foremost category – that best jibe the notion of domestic police force – to back upward their declaration against the locomote of the prerogative, fifty-fifty less tin they rely on loss of rights inwards the other 2 – that rather encompass a laid upward of transnational rights –. And if they tin rely on loss of rights inwards the foremost category, together with then at that spot is no require to engage the other two. So transnational rights, amongst which the High Court had timidly engaged, are gently pushed out of the means of the constitutional interrogation at the pump of the judgment.

The gist of the declaration through which the Supreme Court solves that constitutional interrogation is inwards the specialty of the European Union Treaties. And hither comes the 2d aspect. In the normal course of report of things – the judgment recalls – the majestic prerogative covers the making together with unmaking of treaties. This is on the supposition that the ability to brand together with unmake treaties does non touching domestic law. 

That supposition rests inwards plow on 2 propositions: that treaties accept final result inwards international police force together with are non governed yesteryear domestic law; together with that they do non create or alter domestic police force together with rights. (par. 54-56). However the European Union Treaties are exceptional. They do non alone line of piece of work organisation international relations, but they are a root of domestic police force together with of domestic legal rights (par. 86); their nature is ‘unusual’ (par. 88); together with they are ‘unique inwards their legislative together with constitutional implications’ (par. 90). This Supreme Court declaration on the exceptionalism of the European Union Treaties, whilst remaining inwards business office undefined every bit Professor Elliott notes inwards his post, echoes i of the landmark arguments of the CJEU. The specialty of the European Union Treaties, according to the CJEU, is inwards that they constitute a ‘new legal monastic tell of international law’. The subjects of this monastic tell contain ‘not alone fellow member states but too their nationals’. And ‘community police force thus non alone imposes obligations on individuals but is too intended to confer upon them rights which cash inwards one's chips business office of their legal heritage’. (Van Gend en Loos). 

Nothing novel for anyone remotely acquainted amongst European Union law. The novelty is inwards the novel shades that these arguments accept when indirectly recalled yesteryear the Great Britain Supreme Court inwards the context of withdrawal of a Member State. How are the rights together with obligations of the Member States that the European Union Treaties enshrine on the international degree – including the correct to withdraw from the Treaties – to locomote reconciled amongst the rights that this novel legal monastic tell has made business office of the citizens’ legal heritage fifty-fifty ‘independently of the legislation of the Member States’ (in the words of the CJEU)? That, is a interrogation of European Union law. And to a greater extent than or less of those rights – yesteryear the way- are non domestic police force rights. As Lord Reed makes clear inwards his dissent (par. 218), at that spot are elements of European Union police force that depend on reciprocal arrangements amongst other Member States or on the participation of European Union institutions. Transnational rights come upward dorsum through the side door.

This underlying European Union police force interrogation that the Supreme Court judgment simply hints to did non cash inwards one's chips far to the CJEU on this occasion. However a version of it may withal cash inwards one's chips far to Grand Duchy of Luxembourg inwards the twists together with turns of the other planned proceedings. The interrogation has systemic, theoretical together with practical nuances. Systemic, because it calls for identifying the checks together with balances that may safeguard, inwards the novel legal monastic tell that is European Union law, the competing interests of national majorities together with transnational minorities. Theoretical, because on its respond depend the chances of e'er taking transnational rights seriously again. And practical, inwards price of the identification of the legal frames that may safeguard transnational rights inwards the context of European Union withdrawal, both inside European Union police force (duty of sincere cooperation?) together with beyond (does a host Member State e'er become, for instance, one’s ‘own country’ inside the pregnant of article 12 of the International Covenant on Civil together with Political Rights?). 

Ultimately, the potential interrogation for the CJEU addresses the conundrum that was exposed at the kickoff together with that explains the discomfort that Brexit causes beyond its ain contingencies: how to foursquare domestic democratic choices underpinning the do of Member States’ rights together with obligations at the international degree amongst private transnational rights that the European Union special legal monastic tell has long promised. At stake are the prospects of the nearly special animate beingness that the 20th century international legal monastic tell has bred.

Barnard & Peers: chapter 27

Photo credit: Telegraph

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