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Barnhill, Jura. June 2015. (Thanks to the kindness of the Fletcher family).

“Still no one knows it just the same, that Rumpelstiltskin is my name.” (The Brothers Grimm)

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Edited by John Gynn, Friday, 27 Jan 2017, 22:15

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.”[1]

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:

A BILL

TO

Confer power 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.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

2. Short title This Act may be cited as the European Union (Notification of Withdrawal) Act 2017

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 Rumsfeld’s ‘unknowns’.[2] 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].”[3]

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?” (Rumplestiltskin)

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 confusion there!

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[4] is found:

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.[5]

Anyway there seems no cause for concern. The miller’s daughter, who became Queen, was able to guess Rumpelstiltskin’s name in just three days.

"Is your name Conrad?" "No." "Is your name Harry?"  "No."  "Perhaps 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.”[6] 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 period.”

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 [1915] 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 any abbreviation:

“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’:[7] 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[8] (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 Union.”

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 insight.

To quote Lord Hope (at paras. 13-14) of Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland) [2012] UKSC 61: “As Lord Atkin said in Gallagher v Lynn [1937] 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) [2012] 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) [2011] 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[9] 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 stretching credulity.

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 50.

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”.



[1] https://hansard.parliament.uk/Commons/2016-10-10/debates/6CE5F6BB-3AA4-4332-BF7A-577DB35BDB77/NextStepsInLeavingTheEuropeanUnion?highlight=%22great%20repeal%20act%22#contribution-1F98EB16-0F24-401D-AA92-C0D4DCDE2BB3 H.C. Deb. 10 October 2016 vol. 615 at col.41. From memory Bill Cash, MP for Stone and probably the foremost authority, at least within Westminster, in the field of EU law, has been involved in the drafting of the ‘Great Repeal Bill’.

[2] 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.

[3] Lord Reed gives The Sir Thomas More Lecture for 2014, EU Law and the Supreme Court, 14 November 2014: https://www.supremecourt.uk/docs/speech-141114.pdf

[6] R v Bates [1952] All ER 842 per Lord Donovan at 844.

[7] Feldman, D. Legislation Which Bears No Law - Statute Law Rev (2016) 37 (3): 212

[8] W.A. Wilson, 1984, Introductory Essays on Scots Law, W.Green & son, Edinburgh.

[9] http://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0132/en/17132en.pdf

Shaw, J. (2003) The European Union, in The Oxford Handbook of Legal Studies, OU Press, Oxford.


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