Limits of the Domestic Judicial Power to Disregard EU Law – Chester in Reverse

Originally published on the U.K. Const. L. Blog, February 24, 2016

Domestic courts in the United Kingdom have a power (and a duty) to disregard EU law when it exceeds the scope of incorporation by the European Communities Act 1972. It is for UK courts to determine whether any particular measure is within the scope of incorporation or not. The contrary view on this matter, taken by the Court of Justice of the European Union (from the perspective of EU law), does not affect this conclusion. This, in brief, is the argument I advance in a new paper. However, given the current Government’s designs – in my view not strictly necessary – to affirm that UK courts have such a power, even those who disagree with my starting point should be interested in the proper scope of the domestic judicial power to disregard EU law and whether the law as it is now already provides limitations on that power. I believe that it does. At least part of the answer has been suggested by Lord Mance in Chester (in a somewhat different context) and this is an analogy that I will explore.

Chester and limits of judicial power to disapply an EU-incompatible Act of Parliament

Chester (see the comment by Ruvi Ziegler) is a 2013 Supreme Court judgment concerning a challenge to the ban on prisoner voting under UK law. In his judgment, Lord Mance, with whom the other Justices agreed, said that even if the ban had been incompatible with EU law, a domestic court still could not disapply the ban wholesale or even limit the ban through statutory interpretation (at 73-74). The only possible relief in UK law would be something akin to a declaration of incompatibility known from the Human Rights Act 1998 (at 72).

It would not be within the legal powers of a domestic court to disapply the ban in its entirety for the reason that in many cases the ban would be justified (at 73). To disapply the whole ban would mean that a court would exceed what is strictly necessary to achieve consistency between domestic law and EU law. By doing so the court would disapply a statute even in respect to cases where the statute is uncontroversially compatible with EU law. No court in the UK has such power.

Lord Mance’s judgment suggests that to disapply the ban only in certain cases would would also be outside of the scope of domestic judicial power. As I say in the already mentioned paper:

Lord Mance did not consider this issue explicitly, but his remarks on statutory interpretation suggest the answer: that would also be outside of the jurisdiction of a domestic court, because it would inevitably entail making the sort of choices that, under the UK constitution, may only be made by Parliament. Lord Mance channelled a sound understanding of the limits of judicial power. It is indeed the case that to ‘devise an alternative scheme of voting eligibility’ involving the necessary ‘practical and administrative arrangements,’ is solely for Parliament to do (at 74). Parliament’s unwillingness to do so, even without express statutory derogation from EU law, could not justify judicial action.

Chester in reverse

To see how the Chester analogy works with the issue at hand, I need first to deal with the most important objection. It is true that EU law is not directly binding on subjects of UK law just because it is properly enacted and promulgated. EU law is not even directly binding just because the UK has ratified the EU Treaties. EU law, just like any ratified international treaty, creates rights and obligations in UK law only to the extent it is incorporated by an Act of Parliament (or so I argue). Hence, there is a crucial disanalogy with Chester. Chester concerned a domestic statute that binds judges by itself. EU law has no ‘inherent’ force over UK judges. That is why I prefer to speak about ‘disregarding’ unincorporated EU law, not ‘disapplying’ it – you cannot disapply something that does not apply in the first place.

This is correct, but should not be overstated. Uncontroversially, the scope of incorporation of EU law in UK law, through the ECA, is very broad. The limits of incorporation are not clear and whether they have been breached in any particular case is bound to be highly controversial. Given the special constitutional significance of the relationship between EU law and UK law, and as the case law from Factortame (No. 2) to HS2 and Pham suggests, there is (as a matter of UK law) a strong presumption that any EU measure (including determinations of the Court of Justice) is within the limits of incorporation.

Therefore, even though in principle domestic judges have no duty to apply unincorporated EU law, they have a duty to be especially careful when making determinations as to whether any particular EU measure is or is not incorporated. This is where Chester analogy is helpful. It is at least arguable that, in some important cases, determination of non-incorporation will be too close to the domain of political choice, which in the British constitution is reserved for Parliament.

Just like in Chester, there are two classes of problematic cases. First, a specific provision of EU law could be partially incorporated and partially unincorporated because, for example, it is only partially ultra vires. The Chester reasoning suggests that a UK court would be at risk of violating its ECA-duty in going further than necessary in disregarding unincorporated EU law. Just because a rule of EU law remains partially unincorporated, it does not follow that a domestic court legally could disregard the whole rule (because it would mean disregarding also the incorporated part). What about disregarding ‘in part’? Then, the second difficulty arises. The impugned EU measure (e.g. a specific legal rule of a EU regulation) could be a part of a larger legislative scheme that would have to be restructured if the impugned measure was to be disapplied in UK law. Again, the Chester reasoning suggests that in a situation like that only Parliament could take remedial action, not the courts. All a court could do is to issue a declaration of incompatibility (non-incorporation?).

The limits discussed here allow domestic courts to stay compliant to some extent with the CJEU’s case law on direct effect even when an EU measure at issue is not fully incorporated by the ECA. I do not think that the CJEU would consider a non-binding declaration of incompatibility itself as a violation of EU law (I thank Stephen Tierney for suggesting this thought). The violation, from the perspective of EU law, would take place only once an EU measure is actually refused effect in UK law – for example, if Parliament acts to remove the incompatibility and does so by disregarding EU law.

Is there a pressing need for legislative intervention? I do not think so. The direction in which the Supreme Court seems to be headed is attentive to established constitutional principle including, at least most of the time, the sound understanding of the limits of judicial power. This is not to say that no good could be achieved by an Act of Parliament concerning these issues. Even though neither national sovereignty nor parliamentary sovereignty can be grounded in a statute, a statute may aim to prevent domestic judges from undermining them (I only partially agree with Mike Gordon). But this is an issue I cannot hope to give justice to here.