A long walk off an abbreviated pier?
On 10th October 2016, David Davis, Secretary of State for Exiting the European Union, said: “The
[G]reat [R]epeal Bill is not what will take us out of the EU, but what will
ensure the UK statute book is fit for purpose after we have left.”
Ahead of this ‘Great Repeal Bill’, the Government has now published
its ‘Article 50’ or ‘Brexit Bill’.
Properly styled, the European Union (Notification of
Withdrawal) Bill 2016-17, it consists of just two clauses. As clause 2 provides
only the short title, the ‘Article 50’ Bill is, essentially, comprised of just
one substantive clause:
on the Prime Minister to notify, under Article 50(2) of the Treaty on European
Union, the United Kingdom’s intention to withdraw from the EU.
BE IT ENACTED
by the Queen’s most Excellent Majesty, by and with the advice and consent of
the Lords Spiritual and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows:—
1. Power to
notify withdrawal from the EU
(1) The Prime
Minister may notify, under Article 50(2) of the Treaty on European Union, the
United Kingdom’s intention to withdraw from the EU.
section has effect despite any provision made by or under the European
Communities Act 1972 or any other enactment.
title This Act may be cited as the European Union (Notification of Withdrawal)
Oddly, the Government’s short ‘Article 50’ Bill uses only the
abbreviation ‘EU’ in the long title and its one substantive provision.
This is unlikely to cause any practical difficulty in
reality. Everybody knows what the ‘EU’ is after all. But you never know. Think Donald
Equally, important issues can go unsaid, dropping unnoticed down gaps between
the constitutional floorboards. Discussing the important HS2 case (judgment , January 22, 2014), Lord Reed says, “But the
most remarkable feature of the case of all was that none of the parties proposed
to address the Supreme Court on [the constitutional principles governing the relationship
between Parliament and the courts].”
The most authoritative text, Cross [on] Statutory
Interpretation (1995 at p.126) notes that changes can be made to the long title
of the Bill prior to enactment. But it’s interesting to consider whether any
difficulty might arise were it not clear whether an abbreviated term affords
sufficient clarity should the abbreviation not be expanded by amendment leaving
scope for legal argument.
This use of an abbreviation in the Article 50 Bill is,
perhaps, given a little additional colour because the terminology employed to
label the current European Union has not always been consistent. Professor Jo
Shaw (2003, p.325) notes that, comparatively recently, precise and/or uniform
terminology, in the context of ‘European law’, was not common and was, indeed,
rife with scope for conceptual overlap. Indeed in their commentaries, ‘many observers
and scholars… conflate ‘Europe’ with ‘European Union’ (Shaw, 2003, p.326).
“Perhaps your name is Shortribs, or Sheepshanks, or Laceleg?”
Edward & Lane (2013, pp.435-436) discuss the issue of
terminology within the styling of labels relating to a most fundamental aspect of
the European Union. The ‘Common Market’ was undefined in the EEC Treaty but can
be understood, say Edward & Lane (2013, p.435) as “a customs union plus: a
customs union is concerned with the free movement of goods, a common market is
concerned traditionally with the free movement of goods and the free movement of the factors of their production, that is,
capital and labour”. Lord Cockfield was the architect of the internal market in
1985 which manifested in the Single European Act.
We might pause, momentarily to note that, despite being
labelled an ‘Act’, the Single European Act is a Treaty. So no scope for doubt or
Edward & Lane continue (2013, p.436) regarding the
position subsequent to Lord Cockfield’s important initiative: “Yet confusion
abounded. The internal market was sometimes called the internal market, or
sometimes the ‘single internal market’, and both were frequently used interchangeable
for common market.”
Let’s return to our abbreviated term. It was only in 1993,
as a result of the Maastricht Treaty, that the term ‘European Union’ was first
used formally in EU law. The Treaty of Lisbon, which entered into force on 1st
December 2009, added some clarity and certainty to the terminology. But even it
has its own niches of doubt. This is illustrated in text of the Lisbon Treaty
where, for example, under Horizontal Amendments
A. HORIZONTAL AMENDMENTS
2) Throughout the Treaty:
(a) the words "Community" and
"European Community" shall be replaced by "Union" and any
necessary grammatical changes shall be made, the words "European
Communities" shall be replaced by "European Union", except in
paragraph 6(c) of Article 299, renumbered paragraph 5(c) of Article 311a. In
respect of Article 136, this amendment shall apply only to the mention of
"The Community" at the beginning of the first paragraph.
Anyway there seems no cause for concern. The miller’s
daughter, who became Queen, was able to guess Rumpelstiltskin’s name in just
"Is your name Conrad?" "No." "Is
your name Harry?"
your name is Rumpelstiltskin?"
The Westminster Parliament has five days.
Cross (1995, p.124-5) says: “If the sole cause of doubt is a
disparity between the otherwise clear and unambiguous words and a title,
preamble, heading or side-note, the judge must disregard his notes and apply
the otherwise clear and unambiguous words.”
Cross therefore concludes (1995, p.128): “It is the unambiguous words of a
section which will prevail over the long title”.
Article 50, itself is clear by comparison with the UK
Government’s Article 50 Bill: “The third paragraph of Article 50 of the Treaty
on European union (TEU) states: The Treaties shall cease to apply to the State
in question from the date of entry into force of the withdrawal agreement or,
failing that, two years after the notification… unless the European Council, in
agreement with the Member State concerned, unanimously decides to extend this
However, in the one substantive provision, of the Article 50
Bill, section 1, only the abbreviation ‘EU’ is used again. So a court, seeking
to interpret this abbreviation, would have little help through the one substantive
provision of the Government’s future ‘Article 50’ Act.
One listed amendment for the Article 50 Bill - noting that “exit
date” means the date on which the United Kingdom ceases to be a member of the
European Union – seems superfluous. Debate related to the amendments will be
interesting not least to understand why some have been tabled.
Oddly the Short title of the Article 50 Bill employs the
unabbreviated term ‘European Union. Does that assist a court seeking to
interpret the meaning? Cross (1995, pp.30-31) says not really. “As it is
contained in the body of the Act and is, like the long title and preamble,
subject to amendment during the Bill’s passage through Parliament, one might
think that the short title should be treated in the same way as a guide to
interpretation. However, its sole purpose being to serve as a brief identifying
label, it is by no means as helpful as the long title or preamble.”
“Accuracy may be
sacrificed to brevity”
However Cross does point to Scrutton LJ’s consideration, in Re Boaler  1 KB 21 (at 40-41),
suggesting helpful use of the short title for interpretation in some
circumstances. Scrutton LJ also noted: “[T]he short title being a label,
accuracy may be sacrificed to brevity”.
What of abbreviations in long titles of other statutes in the same field?
The long title of the European Union Act 2011 did not employ
“An Act to
make provision about treaties relating to the European Union and decisions made
under them, including provision implementing the Protocol signed at Brussels on
23 June 2010 amending the Protocol (No. 36) on transitional provisions annexed
to the Treaty on European Union, to the Treaty on the Functioning of the
European Union and to the Treaty establishing the European Atomic Energy
Community; and to make provision about the means by which directly applicable
or directly effective European Union law has effect in the United Kingdom.”
The European Union Act 2011 Act contains a significant
amount of detail. That detail accommodated amendments in debate. The
Government’s tactic of minimising substantive content in the ‘Article 50’ Bill
may be its ‘Achilles Heel’.
The battle for amendments may prove to be the Trojan Horse
with consequences both legal and political. The political consequences, not
least, as a result of the UK Supreme Court’s decision relating to legislative
consent motions in devolved parliaments and talk of a future referendum on
independence for Scotland. The Secretary of State for Scotland, David Mundell
has, interestingly, indicated that a legislative consent motion will be
appropriate in the subsequent Great Repeal Bill according to today’s ‘i’ newspaper.
Section 18 of the European
Union Act 2011 providing just one example of the detail required in a, not
unrelated, Bill states:
“Status of EU
law dependent on continuing statutory basis Directly applicable or directly
effective EU law (that is, the rights, powers, liabilities, obligations,
restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in
the United Kingdom only by virtue of that Act or where it is required to be
recognised and available in law by virtue of any other Act.”
In an interesting journal article, Professor Feldman looks
at Section 18 of the 2011 Act when discussing the increase in legislation that
is promissory, declaratory,
aspirational, and politically rhetorical. Such legislation, Feldman
convincingly explains, can be considered distinct from a statute that is ‘law-bearing’: Indeed the UK Supreme Court, in Miller & Dos Santos 2017, viewed s.28(8) of the Scotland Act 1998 as an example of a provision that was not 'law-bearing' but, instead, imported something of political rhetoric into the statute.
“Declaratory legislation generally attempts to encapsulate
in legislative form what is said to be already the law or, sometimes, the
constitution. The legislation may be directed towards a contested point of law,
seeking to resolve it in a particular direction, as in the European Union Act 2011, section 18: 'Directly applicable
or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls
to be recognised and available in law in the United Kingdom only by virtue of
that Act or where it is required to be recognised and available in law by
virtue of any other Act.' One may question whether an assertion of this kind
can actually resolve the contest over the question, which ultimately depends as
much on EU law as on UK law.”
If a detailed provision like section 18 of the European Union
Act 2011 may not clarify the legal position, what chance for its concise cousin
in section 1 of the ‘Article 50’ Bill?
Politics can certainly flavour even
choice of short title. W. A. Wilson
(1984, p. 87) notes that the Housing (Scotland) Act , “was called for political
reasons”, the Tenants’ Rights Etc. (Scotland) Act 1980. Professor Wilson also
notes that, “the interpretation section is vital” (1984, p.89). There is no interpretation
clause in the Article 50 Bill.
The long title of the European Union Referendum Act 2015 was
short but clear and, again, did not abbreviate:
“An Act to
make provision for the holding of a referendum in the United Kingdom and
Gibraltar on whether the United Kingdom should remain a member of the European
As Cross says (1995, p.124): “If… [a judge] is to fulfil his
[or her] duty of reading the whole Act, when it is necessary to do so in order
to determine whether there is an ambiguity, he must look at the long title
[amongst other parts of the Act which surround or introduce the Act]”.
The UK Supreme Court’s judgments provide some interesting
To quote Lord Hope (at paras. 13-14) of Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent)
(Scotland)  UKSC 61: “As Lord Atkin said in Gallagher v Lynn  AC 863, 870, an Act may have a perfectly
lawful object but may seek to achieve that object by invalid methods… The best
way of ensuring that a coherent, stable and workable outcome is achieved is to
adopt an approach to the meaning of a statute that is constant and predictable.
This will be achieved if the legislation is construed according to the ordinary
meaning of the words used.”
Might an abbreviation be an ‘invalid method’?
The long title of the Immigration Act 1971 was of value in R (on the application of Munir and another)
(Appellants) v Secretary of State for the Home Department (Respondent)
 UKSC 32 (at para. 25, per Lord Dyson).
Again in AXA General
Insurance Limited and others (Appellants) v The Lord Advocate and others
(Respondents) (Scotland)  UKSC 46 the UK Supreme Court (at paras. 13
& 27) uses the long title of the Damages (Asbestos-related Conditions)
(Scotland) Act 2009 and the long title of the Scotland Act 1998 (at para. 145).
Why such a rush?
The Explanatory Notes
for the Article 50 Bill state: “Why is fast‐tracking necessary? The judgment of
24 January 2017 required the Government to complete an additional (and
unexpected) step before the formal process of leaving the European Union can
commence. Completing this step through
the normal Bill timetable would cause considerable delay to commencing the
formal exit process, making it impossible to do so before the end of March
2017. This would further generate uncertainty as to the timetable for our exit
from the European Union.”
As the Bookmakers’ odds and even the most hopeful Brexit
campaigner will testify, it was the result of the EU Referendum that was unexpected.
To say that the UK Supreme Court judgment could not have been anticipated is
Moreover the Article 50 process could have been expedited (thus
avoiding the need for fast-tracking the Bill’s passage) had the Government not
prevaricated in the first instance with its unnecessary move to trigger Article
50 using prerogative power.
Blaming the UK Supreme Court’s judgment for the delay is
like an MP blaming traffic in the Westminster corridors should they miss an
important vote having paused to finish their cup of tea long after hearing the Division Bell. It
might not be beyond the bounds of possibility that the delay after the EU
Referendum result was manufactured partly in order to curtail debate on Article
This may all just be an exercise in wasteful pedantry. After
all, Rumpelstiltskin aside, can there be any importance in a name? When the cry went out on the Cyclops’ island: "Whose fault is it?"
Polyphemus cried back: "Nobody's”.
Recently given credence by none less than Lord Neuberger: Has the identity of
the English Common Law been eroded by EU Laws and the European Convention On
Human Rights?1 Faculty of Law, National University of Singapore Lord Neuberger
18 August 2016: https://www.supremecourt.uk/docs/speech-160818-01.pdf
at para. 14.
 R v Bates  All ER 842 per Lord
Donovan at 844.
Feldman, D. Legislation Which Bears No
Law - Statute Law Rev (2016) 37 (3): 212
W.A. Wilson, 1984, Introductory Essays on Scots Law, W.Green & son,