UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Mark Elliott and Hayley J. Hooper: Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union

Mark ElliottHayley J HooperThe judgment of the High Court in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), decided on 3 November 2016, has been subjected to astonishing and wholly misguided criticism by politicians and the press. Let us be clear, then, at the outset of this post that we entertain no doubt whatever about the constitutional appropriateness of the Court ruling on the question that was put to it in Miller. The question for the court was solely a legal question about the extent of executive authority. It was not, as some tabloid newspaper outlets have suggested, an opportunity seized by an elite judiciary to usurp the will of the people. Questions on the legal limits of governmental authority are par excellence questions for courts in any democracy based on the rule of law.

To criticise the Miller judgment — and the judges who delivered it — as undemocratic is not only wrong, it is dangerous. The independence of the judiciary, and its resulting capacity to determine legal questions, is imperative. Politicians and the media act grossly irresponsibly when they criticise judges for fearlessly and impartially adjudicating upon legal disputes. An independent and impartial judiciary is of course a cornerstone of any functioning democracy. In short, Miller was solely concerned with whether the Government has the power to trigger Article 50. The Court’s declaratory ruling simply states that ‘the Secretary of State does not have the power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the for the United Kingdom to withdraw from the European Union.’ The ruling has nothing to do with the wisdom of triggering Article 50, nor does it affect, let alone displace, the outcome of the referendum on EU membership. The highly charged political context should not detract from the plain fact that the decision in Miller is an example the Court discharging its ordinary constitutional function.

However, these considerations do not (and should not) immunise judicial decisions against critical legal analysis. In this post we offer such an analysis. To this end we focus upon on three issues raised by the case. First, we argue that the Court was wrong to conclude that there is a category of domestic statutory rights flowing from EU membership which would be displaced by the operation of the prerogative in the Article 50 context, and that this would in turn be contrary to the operation of the constitutional principles governing the extent of the prerogative and its relationship with statute. Further to this, we contend that the Court is insufficiently sensitive to questions about the source of the relevant rights, and the implications for legal doctrine regarding whether a given right is sourced in a domestic statute, in the common law, or emanates from an international treaty. Secondly, we question the Court’s conclusion that, in light of ‘background constitutional principles’, the European Communities Act 1972 (‘ECA’) is to be read as having relevantly displaced the executive’s prerogative authority to trigger Article 50. Third, and relatedly, we examine the notion of ‘sovereignty’, contrasting parliamentary and popular notions thereof and suggesting that the Court may have been insufficiently sensitive to the relationship between those two phenomena.

This piece has two overarching aims. One aim is to argue that in certain respects the Court simply goes astray and gets the law wrong. The other aim is to demonstrate that the Court enters into highly contestable constitutional territory in respect of certain aspects of its reasoning. While the very contestability of that territory makes it difficult to argue conclusively that the Court did indeed go wrong, the Court’s failure to openly acknowledge and engage with the contestable nature of the relevant issues is itself a concern about the judgment.

The nature of the relevant rights

The decision in Miller turns upon the application of the constitutional principle that (as the Court put it) ‘the Crown has no power to alter the law of the land, whether it be common law or contained in legislation’. Triggering Article 50 plainly will not alter or repeal the ECA itself. That will, quite properly, be a matter for Parliament, via the so-called ‘Great Repeal Bill’. But will Article 50 nevertheless alter ‘the law of the land’ by ultimately causing a removal of at least some of the legal rights presently enjoyed by individuals as a matter of EU law?

The answer to that question turns in part on whether — assuming relevant rights are at stake at all — triggering Article 50 will itself relevantly impact upon them. Arguably it will not. Triggering Article 50 will do no more than initiate the negotiation process on the diplomatic (and international) plane, the outcome of which cannot be known. A further reason for doubting that triggering Article 50 relevantly impacts upon any pertinent rights concerns the revocability question. This amounted to the elephant in the room in the Miller case, the Court simply assuming — because the parties conceded — that a notification under Article 50 cannot be unilaterally withdrawn by the notifying Member State. We do not propose to address that question in any detail here, except to note that the matter is contested, that leading authorities — including Paul Craig — have argued that a notification can be unilaterally withdrawn, and that the Divisional Court proceeded simply on the assumption that unilateral withdrawal is not possible. The nature of the Article 50 process may yet form the substance of a reference for a preliminary ruling to the European Union judicature when the Miller appeal is heard by the Supreme Court early next month. While it is not hard to fathom the political and tactical reasons for the parties’ reluctance to press this point it remains unfortunate in legal terms that the case was decided on the basis of an assumption that might well be wrong.

Let us turn, then, to the question whether any relevant rights are actually in play. The issue is whether the rights whose removal it is said Article 50 would impact upon in effect form part of ‘the law of the land’, i.e. domestic law.

It is plainly the case that EU law rights become domestic law rights when, for instance, separate primary legislation provides for such rights. However, rights enshrined in domestic law in this form are not threatened by the triggering of Article 50: they will disappear only if Parliament repeals the relevant legislation, or if Ministers to do exercising authority given to them (e.g. under the Great Repeal Bill). The key issue therefore concerns the legal status of those EU law rights which are enforceable in the UK only by operation of the ECA 1972. There are two ways of looking at this. The first sees the ECA as a conduit for the effect in domestic law of rights that are EU law rights. This, we contend, is the correct view. The second view — preferred by the Court — sees the ECA as the creator of domestic rights. By taking this view, the Court triggers the well-established constitutional principles concerning the extent of prerogative power. The upshot, on this view, is that the Government cannot use the prerogative to remove the rights in question — for that would entail using prerogative authority to ‘alter the law of the land’.

John Finnis has argued strongly in favour of the first view. He says that ‘rights acquired by virtue of s. 2(1) ECA are not [as counsel for the lead claimant put it] statutory rights enacted by Parliament’. Rather, says Finnis, they are ‘rights under the treaty law we call EU law, as it stands “from time to time”’. There are therefore, he continues, ‘two necessary conditions’ for the existence and operation of such rights: ‘One is that they be rights from time to time created or arising by or under the Treaties. The other is the silent operation of s. 2(1) ECA.’ We find this view, which is consistent with the analysis that one of us put forward shortly after the referendum, persuasive.

Finnis goes on to draw an analogy between the present context and the operation of ‘double tax treaties’, whereby domestic entitlements to tax deductions take effect through a combination of treaty arrangements and UK legislation. The UK legislation creates domestically enforceable rights to tax deductions which are provided for in treaties designated by Order in Council. In this context, Finnis regards the distinction between executive action on the international plane and the scope of domestically enforceable legal rights to be well understood. The consequence of this arrangement is that executive-instigated changes on the international level (e.g. by means of terminating relevant treaty arrangements) can be effected by using the prerogative. This means that the relevant statutory provisions give legal effect only ‘contingently’ to such rights as relevant treaty arrangements provide for at any given point in time. Finnis reasons that since — on his argument — it is uncontroversial that such treaty arrangements remain vulnerable to the exercise of prerogative power, the same must be true of the treaty arrangements to which the ECA 1972 gives effect in domestic law.

The position adopted by the Court in Miller suggests one of two things in respect of the argument concerning double tax treaties. One possibility is that Finnis’s view that such arrangements are vulnerable to the exercise of prerogative authority on the international plane no longer holds. Another possibility, however, is that the Court might consider the EU context to be unique, such that the kind of analysis applied by Finnis in the double tax context is considered inappropriate in the EU context. It might be thought that such a form of EU-exceptionalism is warranted by its sui generis nature, including the direct effect doctrine’s capacity to blur — or to appear to blur — the lines of demarcation between international and domestic law. On this view, the UK’s membership of the EU might be considered to have resulted in some form of legal alchemy, whereby the distinction between treaty-based rights and the UK legislation that operates as the vehicle for giving effect to those rights has somehow been dissolved. If this perspective was taken, and the Court did in fact see the impact of EU law as sui generis, then it would provide grounds for challenging the relevance to the EU context of Finnis’s argument founded upon the operation of double tax treaties. However, it is perfectly clear that no such legal alchemy is occurred.

In fact, English courts, including the Supreme Court, have denied that EU law has acquired a sui generis status as a matter of constitutional theory. For example, in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, such an argument about the nature of EU law was firmly rejected. Counsel argued that (as Laws LJ paraphrased) ‘the EC Treaty’s effect in domestic law does not depend, merely at least, upon the terms of its incorporation by the ECA, but, in part at least (and to a decisive extent), upon principles of EU law itself’. Laws LJ was unconvinced. In rejecting this submission, Laws LJ’s underlying reasoning treats the ECA as the conduit through which EU law has effect in the UK, thus signalling that EU law has no legal status or effect in the UK separate from that provided for by domestic legislation. In the Supreme Court, Lord Reed took a similar view in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, when he said that questions about the relative priority of EU and domestic law ‘cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act’. Such dicta are consistent with Parliament’s own understanding of the juristic basis upon which EU law has effect in the UK. Section 18 of the European Union Act 2011 provides that:

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.

This makes it entirely clear that, as a matter of constitutional theory, EU law has not acquired a sui generis status. It follows that no argument based upon its having such a status can be advanced as a means of denying the pertinence of Finnis’s argument in the EU context. And from this it follows that the Court in Miller goes wrong by evidencing insufficient sensitivity to the nature of the rights in question. Those rights, as treaty-based, EU law rights, are therefore not the form of rights to which the limitations upon the prerogative apply.

‘Constitutional statutes’ and ‘background constitutional principles’: General

If domestic rights are in play which could be destabilised by the triggering of Article 50 (which is contrary to what we argue) then the focus of the analysis shifts to the question whether the constitutional principles concerning the extent of the prerogative and its relationship to statute preclude the triggering of Article 50 via prerogative power. The answer to that question must be ‘no’ if the ECA is interpreted in such a way that it leaves the prerogative power to conduct international relations or foreign affairs relevantly intact. The crucial question in Miller then becomes one of the statutory construction of the ECA. The Court’s analysis of this matter is fundamentally shaped by its perception of two key aspects of the constitutional backdrop against which the ECA exists. The first aspect concerns the ECA’s status as a ‘constitutional statute’ — a term coined by Laws LJ in Thoburn.

The second concerns the operation of what the Court calls ‘background constitutional principles’. The Court rightly notes that such principles influence statutory interpretation: ‘Where background constitutional principles are strong, there is a presumption that Parliament intended to legislate in conformity with them and not to undermine them. One reads the text of the statute in the light of constitutional principle.’ This dictum raises questions as to what the relevant constitutional principles are, and whether, and if so how, they operate to determine whether the ECA is to be read as leaving the royal Pprerogative intact in the present context. There are, of course, many ‘background’ — or ‘fundamental’ — constitutional principles. Among them must be the sovereignty of Parliament, the rule of law, and the separation of powers. Indeed, many — perhaps most — background or fundamental constitutional principles consist of some version of those three foundational principles, taken either in isolation or in combination. That is certainly true of the principles that govern the way in which statute and prerogative interact with one another.

One of the ‘background’, or ‘fundamental’, constitutional principles that shapes the interpretation of legislation is the ‘principle of legality’ — as articulated in decisions such as Simms, Pierson and Witham. These cases create a common law presumption of statutory interpretation which amounts to the fact that ‘fundamental rights cannot be overridden by general or ambiguous words’ (per Lord Hoffmann in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115). In other words, if Parliament wishes to legislate to remove fundamental (common law) rights, it must do so explicitly. The Court’s appeal to this principle in the context of the interpretation of the ECA in this context, however, is misguided. As it focuses upon common law constitutional rights, it cannot assist the Court in interpreting the ECA, because, in the Court’s eyes, the EU law rights at stake in the Article 50 process are statutory rights. These are not the common law rights that the principle of legality as articulated in Simms and Pierson are generally understood to protect. That is not to deny that the content of the body of common law rights — and so the field of application of the principle of legality — can and may be influenced by international law, including EU law and the ECHR. For example, as Lord Reed put it in Osborn v Parole Board [2013] UKSC 61, [2014] 1 AC 1115, the common law of human rights falls to be developed ‘in accordance with’ Convention rights when appropriate. Be that as it may, it is upon common law constitutional rights that the principle of legality centrally bites.

Conceived of in broader terms, however, the principle of legality can be understood as something that does not simply protect common law rights, but which operates as a general background norm of statutory construction so as to preserve a range of fundamental constitutional values, whether or not those values specifically take the form of common law rights. If such an interpretive approach is relevant in the present context, its relevance must lie in that broader sense. The Court reasons that when the ECA is interpreted in the light of relevant background constitutional principles, the argument that it leaves undisturbed the relevant prerogative power becomes untenable. Indeed, the Court says that the Government’s case is ‘flawed’ at a ‘basic level’ by the fact that it ‘gave no value to the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have the power to vary the law of the land by the exercise of its prerogative powers’. The Court notes that this principle evolved through the ‘long struggle … to assert parliamentary sovereignty’. And the Court goes on to say that the status of the ECA as a constitutional statute indicates Parliament’s desire to exempt it from implied repeal. This, the Court reasons, makes it unlikely that Parliament would be content to allow its legal effects to be removed by the Crown via the prerogative. These aspects of the judgment seem to us to be not without difficulty. Three matters are particularly worth noting.

‘Constitutional statutes’ and ‘background constitutional principles’: Three particular matters

The first matter concerns the relationship between constitutional statutes and what the court calls background constitutional principles. The notion of constitutional statutes was developed by Laws LJ in Thoburn. He articulated a test for identifying those statutes which the common law properly holds to be ‘constitutional statutes’. A statute will be a constitutional statute — rendering it immune from implied repeal — if it (a) ‘conditions the legal relationship between citizen and State in some general, overarching manner’ or (b) ‘enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.’ For Laws LJ the ECA was ‘by force of the common law, a constitutional statute’. The consequence of categorising a statute as constitutional means that it is immune from the doctrine of implied repeal. In short, if Parliament wishes to repeal a constitutional statute it must do so explicitly. In Miller the Court suggests that the significance of statute being regarded as constitutional is that background constitutional principles are peculiarly relevant to their construction: ‘statutory interpretation, particularly of a constitutional statute…must proceed having regard to background constitutional principles’.

There are admittedly certainly examples — Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, [2002] NI 390, for instance — of the constitutional dimension of legislation significantly affecting its interpretation. In Robinson the classification of the Northern Ireland Act 1998 (‘NIA’) as a constitutional statute led the court to interpret it in the light of the general (including factual), not just the legal, constitutional background in Northern Ireland. The House of Lords referred to the NIA as a ‘constitution for Northern Ireland, framed to create a continuing form of government against the background of the history of the territory and the principles agreed in [the] Belfast [Agreement].’ Thus the court took account of the need to prevent the collapse of the Northern Ireland Government, which would have directly threatened the peace process. Against that background, the unwillingness of the Court in Miller to take greater account of the broader constitutional context — of which the referendum formed an axiomatic component — is striking to say the least. We return to this issue below when we consider the relative relevance of popular sovereignty to parliamentary sovereignty. In Robinson, context included the factual background, but in Miller this was conspicuous by its absence. For now, we simply note the dissonance between the interpretive approaches respectively generated by the constitutional status ascribed to the NIA in Robinson and the ECA in Miller.

The second noteworthy matter in this context relates to the consequences that, according to the Court in Miller, flow from the ECA’s designation as a ‘constitutional statute’ in the Thoburn sense. As already noted, according to Thoburn the consequence that flows from a statute being ‘constitutional’ is immunity from the doctrine of implied repeal. The Court in Miller, however, ascribes far broader consequences to the ‘constitutional’ designation of the statute in question, including consequences that operate so as to preclude the use of the prerogative to trigger Article 50. This represents a highly novel reading of the notion of constitutional statutes (a notion that is itself relatively novel, and not without difficulty, in the first place).

In Thoburn, Laws LJ was at pains to emphasise that whether something is a constitutional statute is not a matter of parliamentary intention. Rather, it is a conclusion reached, and a status ascribed to legislation by, the common law. ‘The ECA is, by force of the common law, a constitutional statute.’ Thus it is not for Parliament to intend that a statute be regarded as constitutional; it is for judges applying the principles of the common law to decide for themselves. In Miller, however, the Court overlooks these common law roots of the notion of constitutional legislation. Indeed, it positively misreads Thoburn, asserting that ‘the status of the ECA 1972 as a constitutional statute is such that Parliament is taken to have made it exempt from the operation of the usual doctrine of implied repeal by enactment of later inconsistent legislation’.

But Laws LJ said nothing of the sort. On his analysis, at least, the ECA’s status as a constitutional statute signifies nothing of Parliament’s intention, and reflects only a common law determination as to the constitutional status of the legislation. Moreover, according to Thoburn, the doctrine of implied repeal itself ‘was always the common law’s own creature.’ Properly understood, therefore, the ECA’s constitutional status does not cast any light on the intention of Parliament as to the conditions that must be fulfilled before it can be repealed or amended by a future Parliament. But, more generally, the common law’s designation of a statute as ‘constitutional’ does not tell us anything whatever about legislative intention, because that designation is in the first place a matter of common law. For this reason, the ECA’s constitutional status cannot — contrary to what the Court in Miller appears to think — be leveraged so as to infer that Parliament intended to limit or displace the prerogative. Parliament might have had that intention; but that is a question to which the ECA’s constitutional status — at least as that concept has been understood hitherto — is irrelevant.

A third question raised by the Court’s ‘background constitutional principles’ relates to the content of those principles. As noted above, many of those principles consist of versions or combinations of the foundational principles of parliamentary sovereignty, the rule of law, and the separation of powers. The Court chooses to focus particularly, and perhaps understandably, on the sovereignty of Parliament, which forms the root of the further constitutional principle governing the relationship between statute and prerogative. However, it need hardly be pointed out that the content, meaning and interaction of the UK’s fundamental constitutional principles is contestable. For instance, when the principle governing the relationship between statute and prerogative is viewed through the prism of parliamentary sovereignty, it is perhaps lent an expansive character, the focus being upon the preservation of parliamentary power and the subjugation of executive authority wielded through the exercise of the prerogative. However, this represents an unsubtle and questionable reading of the significance of parliamentary sovereignty in this context. That is so in part because of the questions that arise in this context about the interaction of popular and parliamentary sovereignty — questions to which we turn below.

A further issue concerns the role to be played by other constitutional principles, including the separation of powers. The Court’s approach in Miller seems to turn the ordinary principles of statutory interpretation in relation to the prerogative on their head, and indeed the separation of powers on its head. It is well known that an Act of Parliament which is clearly in the same subject area as the prerogative displaces the executive’s power. In Fire Brigades Union the House of Lords held that it was unlawful for the Minister to use the royal prerogative to enact his preferred compensation scheme where an Act of Parliament already existed in this area and created a clear duty on the part of the Minister to exercise the power as Parliament intended. The House of Lords said ‘it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament expressed in a statute’. Quite right. This would indeed violate the constitutional principle of the separation of powers if the executive could dis-apply an Act of Parliament on a whim. But Fire Brigades says nothing of a situation where the will of Parliament in a particular statute is either (a) unclear, or (b) simply has not been expressed on a particular point. It remains unclear as to whether Parliament really did contemplate the process of leaving the EU when section 2(1) of the ECA 1972 was drafted. It is not immediately (let alone literally) clear whether the wording of section 2(1) which reads: ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties… shall be read as referring to one to which this subsection applies’ indicates any particular parliamentary intention relating to the process of EU withdrawal. Nonetheless, it seems that in Miller the Court has subtly stretched the Fire Brigades principle by selectively using ‘background constitutional principles’ to confect a clear parliamentary intention in respect of an unclear statutory provision, so as to rule that use the prerogative power was in fact prohibited by statute.

Sovereignty: Parliamentary or popular?

Expressions of popular sovereignty in the British constitution are few and far between, but the referendum to leave the EU was arguably a clear manifestation of sovereignty in that form. How far popular sovereignty is a ‘background constitutional principle’ and what the relationship might be between that principle and parliamentary sovereignty is as yet unclear. However, the in the last few paragraphs of its judgment in Miller, the Court goes some way towards engaging with this question. The Court commented that the EU Referendum Act 2015 (which legally authorised the Brexit vote):

falls to be interpreted in light of the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy which apply in the United Kingdom, which lead to the conclusion that a referendum … can only be advisory for the lawmakers in Parliament.

The Court then continued by stating that the 2015 Act was passed against a clear background ‘including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only.’ In fact, in the space of two paragraphs, the Court emphasises the referendum’s advisory status three times, although it conceded that this did not detract from ‘the status of the referendum as a political event’. The implication, it seems, is that the principle of parliamentary sovereignty can act as a trump on popular sovereignty. In real terms, this means that it would be constitutionally and legally permissible for Parliament to refuse to trigger Article 50, the result of the referendum notwithstanding.

The Court’s approach reflects a particular (and contested) notion of ‘representative parliamentary democracy’ that arguably traces its origins to the writing of Edmund Burke. On 3 November 1774 —242 years to the day before the High Court delivered its judgment in Miller — Burke cautioned his audience that parliamentarians did not abrogate their independent judgement in order to fulfil the wishes of their electors:

But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience –these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. (Emphasis added).

For Burke, once parliamentarians were elected, it was their constitutional duty to reach an independent judgement on behalf of the common good. They were not bound by any given expression of popular will. This seems to be what the Court’s dictum also implies about the referendum result, and the relative weight the constitution accords to popular sovereignty on the one hand, and parliamentary sovereignty on the other. But right now we are sailing in uncharted seas. For that reason, it is not straightforwardly clear that the principle of parliamentary sovereignty — once it is weighed in the light of the relevant circumstances — exerts the degree of pull that the court assumes. The relative weight to be accorded to fundamental constitutional principles — including when they are used, as in Miller, to shape statutory interpretation — cannot be divorced from the context in which those principles fall to be applied, and it is at least arguable that the Court paid insufficient attention to the referendum itself as a key element of that context.

The Court’s determination to examine the constitutional appropriateness of executive action triggering Article 50 without any reference to the broader context lends the decision a highly artificial air. It also, as we noted earlier, sits in contrast to the approach adopted in Robinson, in which the underlying factual — as distinct from legal — constitutional context was the principal driver of the court’s interpretation of the Northern Ireland Act. It is one thing to argue that executive action which jeopardises domestic rights granted by Parliament (if that is indeed what the relevant rights are) is an affront to the doctrine of parliamentary sovereignty. But that proposition surely does not have equal purchase in respect of (on the one hand) executive action undertaken on a whim and (on the other hand) executive action that implements the will of the electorate expressed in a referendum that was itself legislated for by Parliament. The principle of parliamentary sovereignty might, on one view, be the primary principle of the UK constitution, but that does not mean that it should be understood as an abstraction whose implications fall to be understood without any reference to the surrounding constitutional context.

Against this background, the Court’s judgment is striking in its muscularity, there being surprisingly little evidence of sensitivity to the contestable nature and effects of the constitutional principles that — far from being in the ‘background’ — occupy centre-stage in the Court’s reasoning. The result is that the Court constructs the legislative intention underpinning the ECA in a very particular way that generates a very particular result. In the end, we are told — with absolute certainty — that Parliament in 1972 intended to displace the prerogative. But it is far from clear that that certainty is warranted.

Mark Elliott is Professor of Public Law at the University of Cambridge and a Fellow of St Catharine’s College, Cambridge. Dr Hayley J. Hooper is a Junior Research Fellow in Law at Homerton College, University of Cambridge. The authors are grateful to Professor David Feldman, Alex Horne, Professor Aileen McHarg, Dr Jonathan Morgan, Professor Colm O’Cinneide and Professor Alison Young for their valuable comments on earlier drafts of this piece. The usual disclaimer applies

(Suggested citation:  M. Elliot & H.J. Hooper, ‘Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union’ U.K. Const. L. Blog (7th Nov. 2016) (available at https://ukconstitutionallaw.org/))

66 comments on “Mark Elliott and Hayley J. Hooper: Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union

  1. Richard Allen
    November 7, 2016

    So the alternative is what ? We replace parliamentary debate with the politics of the gutter and with no safeguards for anyone who might be trampled underfoot in a rush to pacify the populist mob. Very dangerous thinking indeed.

    • Maurice
      November 7, 2016

      It’s already the politics of the gutter in parliament.

  2. Richard Allen
    November 7, 2016

    The court was protecting the rights of those who will be affected by triggering Article 50. That is a large part of the judgment. Those rights must be considered and dealt with in a calm parliamentary environment and not terminated by the whims of populism.

    • Maurice
      November 7, 2016

      Parliament is anything but “calm”.

      If these “rights” are to be debated by Parliament, lets reconstitute it through a fresh GE, so that it’s actually representative…

      • Richard Allen
        November 7, 2016

        Its beyond them sadly. The fact they organised this mess proves it.

      • John Sanderson
        November 7, 2016

        Unless we have PR Parliament is not representative

      • Richard Allen
        November 7, 2016

        Parliament is representative but not in the way you suggest.

  3. dbfamilylaw
    November 7, 2016

    I remain unconvinced on the rights arguments; and no ‘Great Repeal Bill’ has yet been drafted, still less published (and i hope that silly title goes). Rights protected by EU membership go further than double taxation issues, surely? For a modest comment see https://dbfamilylaw.wordpress.com/2016/11/07/our-rights-the-miller-brexit-case-explained/

  4. Sean Gabb
    November 7, 2016
  5. Chris V
    November 7, 2016

    Imputing Parliamentary intent is not new and surely has been helpful. Why preclude it now? In the absence of anything to the contrary why would assuming Parliament did not intend to limit the executive’s power be preferable?

    Taking the point in isolation: why would a referendum make triggering article 50 by royal prerogative right and triggering by Parliament wrong? The referendum cannot trigger article 50. Apart from requiring Parliament and the government to arrange for the UK to leave the EU under terms that have not been defined, does the referendum have any other significance. Is the suggestion the court was encouraging Parliament to ignore the referendum? Or was it making the point that an ‘out’ decision required something more?

    The decision to leave is not bound by any minima or maxima of conditions which seem, as a practical matter, to be needed and which seem to require input from Parliament in order to have democratic legitimacy. That may be a political point but nevertheless a practical one. If the government were clearer about involving Parliament this challenge would not have happened. Not sure if that’s an observation that is at all helpful to any legal analysis but it’s a factor.

    • Richard Allen
      November 7, 2016

      Well if Parliaments intent is the key, they clearly intended the referendum to be advisory because they created a briefing that told MPs exactly that in June 2015

      See link here

      http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7212#fullreport

      5. Types of referendum

      This Bill requires a referendum to be held on the question of the UK’s
      continued membership of the European Union (EU) before the end of
      2017. It does not contain any requirement for the UK Government to
      implement the results of the referendum, nor set a time limit by which a
      vote to leave the EU should be implemented. Instead, this is a type of
      referendum known as pre-legislative or consultative, which enables the
      electorate to voice an opinion which then influences the Government in
      its policy decisions. The referendums held in Scotland, Wales and
      Northern Ireland in 1997 and 1998 are examples of this type, where
      opinion was tested before legislation was introduced. The UK does not
      have constitutional provisions which would require the results of a
      referendum to be implemented, unlike, for example, the Republic of
      Ireland, where the circumstances in which a binding referendum should
      be held are set out in its constitution.
      In contrast, the legislation which provided for the referendum held on
      AV in May 2011 would have implemented the new system of voting
      without further legislation, provided that the boundary changes also
      provided for in the Parliamentary Voting System and Constituency Act
      2011 were also implemented. In the event, there was a substantial
      majority against any change. The 1975 referendum was held after the
      re-negotiated terms of the UK’s EC membership had been agreed by all
      EC Member States and the terms set out in a command paper and
      agreed by both Houses.

      • Chris V
        November 16, 2016

        I think we are making the same point. I was obviously not clear. I agree completely with what you wrote.

      • Richard Allen
        November 16, 2016

        We are. Sorry if that was not clear.

  6. Peter
    November 7, 2016

    Your point in summary is that the ECA and tax treaties are different from normal statutes because the removal of a treaty that is incorporated into UK law by statute does not repeal the statute. Such statutes are conbduits rather than substantive laws that give legal rights to persons within the jurisdiction.
    You say that if the underlying treaty is abrogated the statute is not repealed. It is however deprived of any effect through the back door.
    You acknowledge that the substance of what takes place if a tax treaty is abrogated is the same as if some relief – such as for example that contained in s8 of the TIOPA 2010 – is repealed. But you say that the form is all important.
    You cite the authority of Professor Finnis who used the TIOPA 2010 to argue that the executive can without any authority from parliament abrogate a tax treaty.
    The professor ignores the requirement of section 5 of the TIOPA to lay any Order in Council before the House of Commons which has to approve the treaty by resolution of the House.
    The professor states that because every treaty has a termination provision that states that the treaty can be terminated by the state “through diplomatic channels” that means that the procedure for such abrogation is that the executive can do so just by fiat. This is silly. The procedure for abrogation is the same as for bringing a treaty into operation. It is jumping to conculsions. The treaties make no provision for the procedures. They are left to the particular state and its own internal procedures.
    Note that if the professor was right it would mean that a referendum to leave the EU was unnecessary. It follows that the executive could, if it wanted to do so, and without reference to parliament, abrogate the EU treaties.
    That must be nonsense. I hope so.

  7. Dr Mike Tremblay
    November 7, 2016

    Since every member state of the EU has had to introduce legislation similar to what the UK has had to do to implement EU law, presumably there is some merit in understanding how they view, through their constitutional arrangements, the supremacy or constitutional nature of EU law. I suspect the German courts for instance would value protection of rights (given the structure of the German constitution), but there isn’t really a lot of constitutional law testing the supremacy of EU as a constitutional fact, is there?

    Differences notwithstanding, it would be unseemly for divergence in constitutional protections at the member state levels to undermine the effect of EU law.

    Article 50 requires notice to be given consistent with a particular country’s constitutional structure. While this can vary from member state to member state, the fundamental requirement to conform to standards of EU law cannot vary.

    The Supreme Court, if they are going to do their job properly, will need to distinguish between the UK’s unique constitutional arrangements that would enable Article 50 to be triggered and the overarching legal protections and rights EU law bestows which must of needs be the same across the EU and which most likely have produced a new constitutional settlement in the UK.

    We should not assume disinterest in these matters from the perspective of the EU itself. It would not do if constitutional arrangements across the EU could be so unpicked by national arrangements as to remove their force. Indeed, it may be that Article 50 itself violates EU law (as it hasn’t been tested).

    • Chris V
      November 7, 2016

      “Differences notwithstanding, it would be unseemly for divergence in constitutional protections at the member state levels to undermine the effect of EU law.”

      The CJEU ensures that EU law is given effect. To intervene at the constitutional level would surely take us back to a federalism that has been rejected. The idea that we could appeal to the CJEU to resolve our article 50 problems has a delicious irony but it is outwith their competence.

    • Peter Maguire
      November 8, 2016

      I found your comment, especially the final paragraph, most interesting. After the referendum and after a certain amount of research I started to wonder about the legality of Article 50, a concern that I imparted to a number of of my friends in the course of discussions. Admittedly, I have no legal training but, somehow, it seemed to run contrary to some of the legislation contained within the Constitution of the EU, particularly in the (very important?) area of the rights of EU citizens.

  8. ckitis
    November 7, 2016

    Is it not much easier to evaluate that the matter of leaving the E.U. is not up to any court to decide, although the way we leave could be, but over what? The people have voted to leave the E.U., and no court has any sort of authority over our own fate and decisions as such, as the newspapers and press you mention confirm and are absolutely right and unbiased to say so.

    We are not criticising the outcome of the trial which we know that, except from being unbiased, may even reflect the judge’s personal opinion and what he voted for himself, without that meaning that it is biased nevertheless in any other way, and that being because the case raised is not relevant to any situation, and I will explain why with clear definitions and boundaries between different instances and concepts.

    We are, instead, criticising the trial itself, and the existence of the case itself. How can you ask for a parliamentary vote over the popular verdict, when supposedly each and every citizen has voted in person? It has been us who voted, and the parliament which represents us need not do so if we voted directly ourselves. That is a form of direct democracy that the referendum constitutes, but not one of representational democracy which is a device used because we cannot rule ourselves collectively. Was that not clear to the activists who went to court, and if not, how and why?

    Is it not also much easier to evaluate that executive power differs from judicial power just as legislative power differs from executive and legislative powers alike? So then how can you expect judicial power to interfere with executive power and its exercise? Is it not the job of the prime minister to leave the E.U. after the referendum has been conducted, and the result has been the same? And is the way in which that will be done not a matter of procedure as well as her personal business, by abiding to the relevant legal and Constitutional procedures?

    The judiciary and judicial power has no say over whether we will leave the E.U., or maybe not even over the way in which that will be done, because courts will not and should not decide for us our fates and how we are being governed by the state as being defined by the Constitution. It is a matter for the government and the British people to decide under democratic procedures and legal and Constitutional requirements. That is to say that people have voted, and the matter passes over to the executive power of the government for carrying out the people’s will while not being a matter for any court to decide on. Because if the court defies the will of the people, as we have seen that it has, then democracy is not healthy anymore, and malfunctions as we have also seen.

    So it is necessary to draw the line between judiciary power, executive power and legislative power, and not let one interrogate or interfere with the other, in order to maintain a healthy and functioning democracy. And necessary also to define the difference between direct and indirect democracy and its importance, so that it can be established that popular verdict and referenda are more important and have a higher priority over representative votes and voting in parliament.

    That makes the case put to the court by the activists seem ridiculous and overrebelious. They cannot claim what they have claimed from anybody else other than you and me, and the courts would express their own opinion on the matter and possibly say what they had voted for in their decision. I think that this is so easy to understand and to apply in practice in our everyday participation in common affairs of the state that no one would ever claim a parliamentary vote from the courts on what has been already decided on and voted for by everyone else. How could that be fair or just in any way, other than making the majority follow the vote of the minority?

    Therefore I must say that posing obstacles to the execution of decisions made in referenda to democratically elected governments who are to carry them out is not anything that I would approve of.

    • Richard Allen
      November 7, 2016

      You are confusing two issues. Machinery of Government and politics. Politics is the decision and the machinery of state is the method by which those decisions are enacted. There is nothing in the judgment that interferes with politics or the ability of the people to leave the EU. Quite the opposite because it explains how it should be done. A referendum is an instruction from the people to Parliament.

      • ckitis
        November 7, 2016

        I wouldn’t exactly say that a referendum is an instruction from the people to the parliament, but to the government, and that is also what I was explaining.

      • Richard Allen
        November 7, 2016

        Yes an instruction the the Government…not Parliament. The Government is currently the Tory party.

    • Richard Allen
      November 7, 2016

      In any case your view that a referendum is a decision is totally wrong. All MPs were told when they approved the referendum act that it was advisory only. Here is the text :

      5. Types of referendum

      This Bill requires a referendum to be held on the question of the UK’s
      continued membership of the European Union (EU) before the end of
      2017. It does not contain any requirement for the UK Government to
      implement the results of the referendum, nor set a time limit by which a
      vote to leave the EU should be implemented. Instead, this is a type of
      referendum known as pre-legislative or consultative, which enables the
      electorate to voice an opinion which then influences the Government in
      its policy decisions. The referendums held in Scotland, Wales and
      Northern Ireland in 1997 and 1998 are examples of this type, where
      opinion was tested before legislation was introduced. The UK does not
      have constitutional provisions which would require the results of a
      referendum to be implemented, unlike, for example, the Republic of
      Ireland, where the circumstances in which a binding referendum should
      be held are set out in its constitution.
      In contrast, the legislation which provided for the referendum held on
      AV in May 2011 would have implemented the new system of voting
      without further legislation, provided that the boundary changes also
      provided for in the Parliamentary Voting System and Constituency Act
      2011 were also implemented. In the event, there was a substantial
      majority against any change. The 1975 referendum was held after the
      re-negotiated terms of the UK’s EC membership had been agreed by all
      EC Member States and the terms set out in a command paper and
      agreed by both Houses.

  9. Anthony Tsang
    November 7, 2016

    Constitutional law must correctly reflect theory of government and political reality. If not, then the law must be wrong. If the formulation of constitutional law and the surrounding debates are performed in a closet, at best, it will render constitutional law irrelevant to society, at worst, it will lose all legitimacy.

    The first general election in the UK was in 1802. But universal suffrage was not achieved until 1929. Parliamentary democracy in the UK has come a long way.

    In modern Britain, members of the House of Commons, known as Members of Parliament or MPs, are elected by the electorate at general elections held at regular intervals. The House of Lords remains an unelected chamber.

    MPs represents the electorate, not the other way round. The quality of the electorate in Edmund Burke’s days was markedly poorer than today’s. According to
    David Mitch, “Education and Skill of the British Labour Force,” in Roderick Floud and Paul Johnson, eds., The Cambridge Economic History of Modern Britain, Vol. I: Industrialisation, 1700-1860, Cambridge: Cambridge University Press, 2004. p. 344., male and female literacy rates were 40% and 25% respectively.

    Naturally, views on various political issues held by the electorate in an MP’s constituency is diverse. It is for this reason, for a highly controversial political issue such as UK’s EU membership, the government conducted a referendum to obtain a much more accurate view of the electorate.

    In paragraph 106 of the judgement, the court says ‘… [The Referendum] Act [2015] falls to be interpreted in light of the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy which apply in the United Kingdom, which lead to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question. No such language is used in the Referendum Act.’

    Further, in paragraph 107 of the judgement, the court says ‘Further, the 2015 Referendum Act was passed against a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only. …’.

    The official campaign period for the 2016 referendum ran from Friday 15 April 2016 until the day of the poll on Thursday 23 June 2016, a period of slightly over 2 months. It is fair to say both sides campaign rigorously. In our modern day of unprecedented advanced information technology, it cannot be said the electorate was left in ignorance on campaign issues.

    Millions of pounds in public funding was spent on the campaign.

    Labour MP Jo Cox was murdered.

    On 24th June, the day after the voting result was known, David Cameron, the Prime Minister, out of a sense of honour, resigned because the Leave side secured a majority.

    All these, for the High Court to rule the referendum result is advisory beggar belief.

    In paragraph 106 of the judgement, the High Court used these words: ‘… unless very clear language to the contrary is used …’ is a clear sign something is disastrously wrong.

    These words are a euphemism for saying the court has no sound reason and argument to support its conclusion. The desired conclusion can only be reached by bending the courts reasoning to suit the outcome. It is a device frequently used in contract law cases. To place reliance on a parliamentary briefing paper to support the court’s judgement is flimsy to the extreme. I would rather have thought, given what was said in that briefing paper, for the Referendum Act 2015, the legal status of that referendum result can only be advisory if very clear language to that effect is used in the Referendum Act 2015.

    No one, except those who wish the UK’s EU membership to continue, would claim the referendum result is advisory.

    Paragraphs 77 to 104 (section 7) of the judgement set out the court’s decision on the legal question. In a nutshell, the court’s reasoning is that prerogative power cannot be used to alter domestic laws with the result that relevant rights will be adversely affected. I would have agreed with this proposition if, there is no a referendum result underpinning the changes in domestic law leading to the claimed potential impact.

    R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) is wrong. The legal issues put to the court should been dismissed outright as non-justiciable.

    This case serves to show an independent judiciary is no guarantee of impartiality. The High Court in this case has betrayed the public trust. There is no greater threat to the Western system of government than an independent but bend judiciary.

    • Richard Allen
      November 7, 2016

      You suggest that a) the result was a clear majority and b) the referendum was carried out correctly. Both are a matter of subjective opinion. Furthermore MPs were advised by civil servants the referendum was advisory and had no legal basis in the constitution when they passed the referendum act. The current muddle was warned against by Mrs Thatcher in the 1975 EU Referendum debate which …..only goes to show we haven’t come a long way at all…quite the opposite. http://hansard.millbanksystems.com/commons/1975/mar/11/eec-membership-referendum

      • Anthony Tsang
        November 8, 2016

        I suggest nothing of the kind. I do not need to suggest anything. 51.89% of those who voted voted for Leave. This is an objective fact. This a slim majority, but a majority nonetheless. The Prime Minister at the time, David Cameron, accepted this result. He took the HONOURABLE course and resigned. I would have thought he sets a perfect example for those who are mature and sensible enough to follow. As to whether the referendum was correctly carried out, all procedural matters were handled by the UK Electoral Commission. I am prepared to admit I am unaware of any reported procedural irregularity. As to civil servants’ advice, only MPs or also the Lords, i.e.. Parliament received that advice. I rather doubt anyone else was made aware of that advice. In any case, the acceptance of that advice was not reflected at all in the Referendum Act 2015 itself. And finally, the current muddle as you call it stems from those who wish UK’s EU membership to continue unwilling to accept the referendum result, and not a failure to heed the warning of the late former PM, Baroness Thatcher, the greatest PM in British history.

      • Richard Allen
        November 8, 2016

        You obviously haven’t read it. What she warned against has come about. She was a great Prime Minister because she understood how the constitution and politics interact.

      • anthonytsangsite
        November 8, 2016

        I would like to add this to my comments: it was the position of the government, led by the then PM David Cameron, that the UK’s EU membership should continue. That was why David Cameron felt the need to resign in the light of the referendum result.

      • anthonytsangsite
        November 8, 2016

        I would further add this: post Miller, it is an absolute affront to think one has to approach the High Court to seek justice. I cannot see how the High Court thinks it has any credibility, for example, to judge so called tax dodgers who exploits loopholes in the law to escape tax.

      • anthonytsangsite
        November 14, 2016

        Your are right. I did not read it http://hansard.millbanksystems.com/commons/1975/mar/11/eec-membership-referendum. But I read it http://www.margaretthatcher.org/document/102649. And my previous reply stands. In other words, even if Baroness’ warning had been acted on, we would still face the same course of events, post the Brexit referendum vote.

      • Richard Allen
        November 14, 2016

        I’m struggling to see your point. Thatcher warned against referendums. Thats a fact with which you agree. Even so we still had one. I’m sure you think it was run very well but it did not provide a result that would even have satisfied the Governments own definition of a democratic majority (see the legislation on Trade Union votes 60/40). Furthermore your understanding of what the High Court case was about is just completely confused. It was purely about process and protecting any transitional rights. It was nothing to do with stopping Brexit as the Judges make very clear in the introduction.

    • Peter
      November 8, 2016

      Anthony, your commentary is rather emotional. You need to calm down. You have clearly done your research but there is nothing rational in your denunciation of the judges or your conclusion that the judgment is wrong. Not sure your research is relevant.
      Your comment that Margaret Thatcher was the best PM of all time is subjective. Many will say that the financial crisis of 2007 was her fault.
      There are two issues here. The political is complicated as political ones often are. The people voted to leave by a 52% majority. The people also elected parliament. And they elected parliament to take care of their interests in the best way they think possible.
      The vote to leave the EU was a vote for means – to most. I accept that to many it was a vote for an end. Many would not want to be part of the EU under any circumstances. That does not stop the EU being a means to an end in fact.
      We also voted for our MPs as a means to an end. Broadly we want them to provide us with prosperity and peace. Sometimes we want national pride even if achieved by the death of our soldiers. But by and large we want peace and prosperity. That is why we elect our MPs.
      So our MPs have a problem. Their mandate is to give their constitutents proeperity and peace. In this they have a blank cheque.
      Now comes a referendum that is, no matter how hated of itself by many, a means to an end. Nobody entered the EU just for the fun of it. All countries did so because they wanted to improve their positions. It was a means to an end.
      If our elected MPs come to the conclusion that the EU as a means to an end is incapable of achieving the mandate that our MPs are meant to carry out – to make us prosperous and keep us at peace – what are they to do.
      Referendums are direct democracy, a concept that does not exist in the UK, has never done.
      So our MPs have a dilemma. They think that either way they will break their mandate. If they vote to leave the EU they think that they will break their mandate to make their constituents happier and more prosperous. If they vote to make their constituents more prosperous and keep the peace – in their opinion – they would have to defy the referendum results.
      So they cannot win. Either way they break their democratic mandate.
      That is the dilemma. Do they think that they are wiser than us in the management of the economy? Of course they do and so do we. Otherwise we would not employ them and vote for them.
      Those who voted leave think that their MPs are representatives, that they know better than their MPs. So be it. Vote accordingly. Vote for UKIP.
      Now for the legal position.
      The High Court was not asked to determine whether the referendum was vaild or not. They were asked to opine on the constitution. Ours is a difficult constitution because it is not in a single document. There are conventions and written statutes.
      The issue before the court was which branch of government was to take action with regard to the referendum.
      The dispute was de facto between the executive and parliament. The Court chose Parliament. One had to win.
      I need not discuss the legality of the judgment. Others have done it better. But loss in a court of law does not make the decision makers corrupt or enemies of the people, particularly when the referendum decision itself was not at issue.
      Does it really matter who takes the referendum result forward?
      Reading between the lines those who are displeased with the court decision are displeased because they do not trust their MPs to do what they decided to do.
      That crosses the line between law and politics. That’s a political problem. If you do not like what they did throw them out in 3 years time and vote UKIP. That is how we have done things for generations.
      But back to the law. The suggestion has been made, indeed argued vehemently, that the executive and not parliament should decide what to do as a result of the referendum. The support for this point of view seems to be, again reading between the lines, that the executive in this case wants to do what the referendum result decided. So one would be changing the law – assuming the High Court was right – for ever just because in this case the executive were doing what the leave protagonists wanted. That is putting the cart before the horse.
      Suppose the executive had decided by virtue of the Royal prerogative to ignore the wishes of the people as expressed in a referendum. If the High Court was wrong then they would be able to do this. Doubtless you would say that they can only do what they want if empowered by a referendum.
      Now we have come full circle. Does a referendum have any statutory power in our constitution. You know the answer to that as I do. It has not done so and has never done so, from the time of the first referendum in 1974, on the same issue.
      And what would you be arguing if parliament was in favour of giving effect to the referendum result and the executive was opposed to it?
      The law is blind or should be. You do not change something just because you like the end result. The procedures that should be followed are there for all times and can be used for good or bad.

  10. Florian
    November 7, 2016

    This article states that “EU law rights become domestic law rights when, for instance, separate primary legislation provides for such rights. However, rights enshrined in domestic law in this form are not threatened by the triggering of Article 50”.

    This is incorrect. The European Parliamentary Election Act 2002, s.1 states “There shall be 72 members of the European Parliament (“MEPs”) elected for the United Kingdom”. It goes on to define rights to vote and run for office in those elections. It defines these provisions in language unqualified by references to the EU Treaties.

    There is no way these rights can survive UK withdrawal from the EU because only EU member states can send MEPs. Accordingly, there is simply no way around the provisions of this Act: the rights it defines are unconditional and will be removed by withdrawing from the EU. This removal of rights can only lawfully happen via another Act.

    • Richard Allen
      November 7, 2016

      Exactly…which is what is in last weeks Judgment

      • Florian
        November 8, 2016

        Actually last week’s judgement was based on the European Communities Act 1972. The judges interpreted the rights established by this Act as statutory rights that would be subject to nullification by the Article 50 process. Some have argued that those rights should not count because they derive from EU law and are not expressly worded in the 1972 Act itself. The point about the European Parliamentary Elections Act 2002 is that even if that argument is accepted (in relation to the 1972 Act) the use of prerogative powers is still barred due to the nullification of rights contained in the 2002 Act, which would invariably result from an Article 50 invocation. The rights contained in the 2002 Act were created expressly by Parliament with reference to neither the EU treaties nor EU law. The conclusion is there’s just no way around the 2002 Act.

  11. Alan Robertson
    November 7, 2016

    I have yet to see any LEGAL opinions with a contrary view! Disappointed as if anyone could illuminate a different view it should be the UKCLA. Maybe an example of Group Think.
    Tell me this then. Why is it that all previous negotiations on treaties were held by the Government and endorsed by parliament afterwards not the other way around? I accept entirely that the only thing the referendum settles is leaving Europe not the nature of the settlement. So its OK if Parliament debates the settlement but not the actual leaving. Article 50 only starts the process to leave, it does not define the settlement or off itself change any existing legislation.Therefore saying that there must be an endorsement by Parliament before Article 50 is triggered because it changes UK legislation is a flawed argument. The correct procedure is for the Government to invoke Article 50 and thereafter Parliament can decide which of the outcomes they prefer and have politics as normal.
    There is a wider point that the legitimacy of the Sovereignty of the Parliament lies in its ability to represents the will of people through democratic processes. If this will is denied then this legitimacy is made void. The decision made may well create a constitutional crisis and the judges have put their own political preferences above the well being of democracy. It would have been easy to construct an argument of the opposite opinion based the precedent of Governments handling treaties first, there being no actual legislative change on invoking Article 50 and the fact that Parliament already had the chance to express its will in the setting up of the referendum process.

    • Richard Allen
      November 7, 2016

      This argument is rejected in the Judgement because once you trigger Article 50 the rights granted by UK law are lost . I suggest you read it.

      • Wieslaw Piatkiewicz
        November 9, 2016

        I believe there are precedents in case heard in the ECJ where the UK has attempted to block or nullify rights in the UK granted under EU Law and have lost. The UK cannot take away such rights for UK citizens whilst the UK is still a member of the EU. Only when that membership ceases, earliest would be two years after Article 50 is invoked.

      • Alan Robertson
        November 9, 2016

        Thanks for your explanation that this has been considered. I only had read a summary of judgement, about 2 pages, and had no appetite for the full works.

  12. Richard Allen
    November 7, 2016

    The problem with this argument is that it wants to apply UK legal principles to EU law. The idea that rights are not created in UK law as a result of EU law is just wrong. Van Gend en Loos clarifies that rights in EU law become rights in UK law and those rights exist even if a directive has not been transposed into UK law (Frankovich).

  13. solchap
    November 8, 2016

    I am a lawyer (solicitor) but not an academic, and am in no position to comment authoritatively on the bulk of what Elliot and Hooper say. But I fear that they are paying so much attention to the numerous individual trees in the constitutional forest that they have lost sight of the fundamentals of the case. For present purposes (so ignoring common law rights, which I agree are not relevant to the Miller case), it is sufficient to say that at stake here is the application of the long-standing principle that what Parliament has given by way of rights to UK citizens, only Parliament can take away, either by primary legislation (whether explicitly or by necessary implication) or by delegating the power to amend or revoke previous legislation to ministers in specific situations. The latter is relatively rare as regards altering primary legislation. Not for nothing are provisions creating such powers known as “Henry VIII clauses”; ministers love them, while Parliament generally does its best to strike them out of draft bills.
    (I suspect that the government will try to have the so-called Great Repeal Bill consist essentially of just three clauses: one repealing the ECA 1972, the second vesting the acquis communautaire in English law, and a third empowering ministers to do whatever they like with the latter by issuing secondary legislation under the most extensive Henry VIII clause that there has ever been. I just hope I am wrong and/or that Parliament won’t stand for it.)
    I would contend that a crucial aspect of whether power to make a major change to earlier legislation has been granted by necessary implication is the significance of that legislation: the more significant it is, the less likely is it that Parliament would fail to make express provision for amendment or repeal if it intended to allow that. In the case of the ECA 1972, there can be no dispute that this was an Act of huge constitutional importance, giving rights of all sorts to virtually every UK citizen. The burden of proof on anyone seeking to assert a right to nullify it by necessary implication as a consequence of some other Act of Parliament would be correspondingly huge. Having said that, I am as dubious as Elliot and Hooper as to whether categorising the ECA as a “constitutional statute” under the principles of Thoburn is helpful; I doubt if the Supreme Court will find it so either.
    Where, in my view, Elliot and Hooper lose their bearings is in their section “Sovereignty: Parliamentary or Popular?”. There are no good grounds for requiring the EU referendum result to be binding in law on either the government or Parliament. It appears to be widely agreed (outside Cambridge, anyway) that there is never an obligation to implement the result of any referendum unless the legislation setting it up creates one. Arguably such an obligation can be read out of the legislation for the first of the Scottish devolution referendums, which prescribed both that 50% of the votes cast had to be for devolution and, more significantly, that 40% of the total electorate had to vote for devolution. The latter figure was not reached but, had it been, it is arguable that a binding obligation to proceed with devolution would have arisen, though even in those circumstances it is hard to see how it could have been enforced against a recalcitrant government otherwise than by purely political pressure.
    At all events the present situation is the exact opposite. The 2015 EU referendum legislation contained no express or implied obligation to implement the result, and MPs can have been in no doubt that the outcome was to be advisory only. It is worth reading the following passage from the House of Commons Briefing paper (No. 7212, 3 June 2015) referred to in the Court’s judgment:
    “This Bill requires a referendum to be held on the question of the UK’s continued membership of the European Union (EU) before the end of 2017. It does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented. Instead, this is a type of referendum known as pre-legislative or consultative, which enables the electorate to voice an opinion which then influences the Government in its policy decisions.”
    In the circumstances, it is very hard to see the basis for the government’s assertion that Parliament is in some way legally bound to give effect to the result. There is no need to go back to Edmund Burke on this point, though what he says is of course entirely consistent with Parliament being free to do whatever it thinks best as regards the EU. Even if David Cameron may have said during the referendum campaign that the government would treat itself as bound, such statements could not affect the pre-existing legislation. The obligation Theresa May feels she is under, if any, is purely political, as the court says, and not legal, and not enforceable through the courts.
    It may well be that nothing is certain until after the Supreme Court has spoken, but if the royal prerogative is lawfully exerciseable as the government asserts, in a case of a statute of such importance as the ECA 1972, the law badly needs changing to bring it into the 21st century, and I trust that the Supreme Court will find a way of bringing that about.

    • Richard Allen
      November 8, 2016

      Exactly…and I am an individual in court now who will be harmed if Article 50 is just terminated with no due consideration for the impact on my rights and the rights of my family. Did the British public vote to harm other members of the British public ? No they did not.

      • Alan Robertson
        November 8, 2016

        I voted leave and I accepted that economically things may get worse at least for a time. Its a trade off. I voted according to my priorities as presumably everyone else did. There are also people whose interests are damaged by staying in the EU so victimhood is not all one way.
        Until we trigger article 50 we can’t negotiate on reducing the impact. Delaying things wont improve the outcome. MPs deliberating probably wont either because the outcome is not under any British bodies control. You cant ensure rights XYZ because everything has to be agreed with another party (27 EU states) regardless of what MPs or judges may wish for.

      • Richard Allen
        November 16, 2016

        Alan Robertson “I voted leave and I accepted that economically things may get worse at least for a time. Its a trade off” – You misunderstand. There are people in the court system now reliant on the EU Court to rule on a breach of EU law that they have been subjected to. You are clearly not one of them. Under the 1688 Bill of Rights everyone is entitled to a remedy in law which is why rights cannot just be binned. They have to transition and that has to be dealt with in Parliament. David Davis is happy to use the EU Court when it suits him.

      • Wieslaw Piatkiewicz
        November 27, 2016

        I have re-read much of the preceeding posts. How quaint the the Trades Union Act 2016, into law (UK), Savid Javid’s work I believe, required that 40% of those entitled to vote in a Union ballot should support the motion or proposal before the vote would be considered valid. Interesting that that is seen as essential in a relatively minor ballot, in comparison with a vote to leave the EU. The referendum Leave vote only reached 37% or so. And what is it about ‘advisory’ and ‘constitutional’ that some contributors do’t wish to understand. I found that the late Mrs Thatcher (as she was in 1975) provided a very clear evaluation of the situation then as recorded in Hansard and this should guide us on the one we have now. Never thought I would agree with her!!

      • Richard Allen
        November 28, 2016

        Me neither…

  14. Jim South
    November 8, 2016

    I think the High Court took the wrong approach in deciding whether the Crown can use its prerogative powers to give notice under Article 50. The prerogative powers are not absolute; they are subject to statute law and the common law. The Court appears to have taken the approach that the answer to the above question depends on the intention of Parliament in enacting the European Communities Act 1972 (the ECA). However, legislative intention is not the only relevant consideration. In truth, neither the text nor the context of the ECA evinces any express or implied intention to abrogate or limit the relevant prerogative power. I think it was wrong for the Court to artificially manufacture the existence of such an intention. In my view, the Court should have determined that there was no relevant legislative intention (one way or the other), and should then have proceeded to determine whether there are any common law requirements abrogating or limiting the relevant prerogative power.

  15. Pingback: Analysis: Critical Reflections on the High Court’s Judgment in R (Miller) v Secretary of State for Exiting the European Union | Blog of the IACL, AIDC

  16. Pingback: David Feldman: Brexit, the Royal Prerogative, and Parliamentary Sovereignty | UK Constitutional Law Association

  17. Sean Feeney
    November 8, 2016

    The Divisional Court found in Miller that the 2016 referendum was “advisory” [sic] at [105]-[108] as “a matter of statutory interpretation of the 2015 Referendum Act”.

    Shindler & Anor v Chancellor of the Duchy of Lancaster & Anor [2016] EWHC 957 (Admin) was cited but not referred to in the Miller judgment.

    The Court of Appeal held in Shindler at [19]:

    “by passing the 2015 Act, Parliament has decided that it will not withdraw from the EU unless a withdrawal is supported by referendum. In theory, Parliament could decide to withdraw without waiting for the result of the referendum despite the passing of the 2015 Act. But this is no more than a theoretical possibility. The reality is that it has decided that it will withdraw only if that course is sanctioned by the referendum that it has set in train. In other words, the referendum (if it supports a withdrawal) is an integral part of the process of deciding to withdraw from the EU. In short, by passing the 2015 Act, Parliament decided that one of the constitutional requirements that had to be satisfied as a condition of a withdrawal from the EU was a referendum.”

    The Court of Appeal’s finding that the referendum was a “constitutional requirement” will have to be reconsidered by the Supreme Court against the Divisional Court’s finding that the referendum was “advisory” [sic].

  18. Les Green
    November 8, 2016

    Very helpful, thanks. And on the last point, here are some related thoughts: https://ljmgreen.com/2016/11/03/should-parliamentary-sovereignty-trump-popular-sovereignty/

  19. Pingback: Alison Young: R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality? | UK Constitutional Law Association

  20. Pingback: Paul O’Connell and Nimer Sultany: Miller and the Politics of the Judiciary | UK Constitutional Law Association

  21. Pingback: Miller and The Politics of the Judiciary – In The Half Light

  22. Pingback: Timothy Endicott: ‘This Ancient, Secretive Royal Prerogative’ | UK Constitutional Law Association

  23. Pingback: Sionaidh Douglas-Scott: Miller: Why the Government Should Still Lose in the Supreme Court (Even with New Arguments) | UK Constitutional Law Association

  24. Pingback: Sir Jeffrey Jowell QC and Naina Patel: Miller Is Right | UK Constitutional Law Association

  25. Pingback: Robert Craig: The Abeyance Principle and the Frustration Principle | UK Constitutional Law Association

  26. Pingback: Ewan Smith: Treaty Rights in Miller and Dos Santos v. Secretary of State for Leaving the European Union | UK Constitutional Law Association

  27. Pingback: Mikolaj Barczentewicz: Consequences of the High Court’s Reasoning in the Article 50 Judgment: EU Law-making Unlawful | UK Constitutional Law Association

  28. Pingback: Jeff King and Nick Barber: In Defence of Miller | UK Constitutional Law Association

  29. Pingback: In Defence of Miller – Britain & Europe

  30. Pingback: Gavin Phillipson: The Miller Case, Part 1: A Response to Some Criticisms | UK Constitutional Law Association

  31. Pingback: Stijn Smismans: About the Revocability of Withdrawal: Why the EU (Law) Interpretation of Article 50 Matters | UK Constitutional Law Association

  32. Stephen Cooper
    November 30, 2016

    I read Modern History at Balliol 1966-69 but was subsequently a Government lawyer. It seems to me that the paper above is written from an academic standpoint and, although it appeals to context, it ignores the historical context.

    1 The limits of the prerogative were tested in the context of the struggle between Parliament and the Crown, not in the context of any struggle between Parliament and the people. The notion of ‘popular sovereignty’ as opposed to Parliamentary sovereignty has never caught on in England. No-one, except revolutonaries and Tony Benn, has ever argued that the people is sovereign.

    2 Those who have not practised in the area of government law may be unaware of ‘the Ram doctrine’, which was as mother’s milk to the Government Legal Service in my day. This holds that the Crown is a person, and has all the powers that a natural person has, except if these have been taken away by Parliament, expressly or by necessary implication. This again shows that the argument about the prerogative has to be looked at in terms of the propensity of the Crown to argue that it can do many things, without Parliamentary approval. This again has nothing to do with popular sovereignty.

    3 A very good reason for thinking that the people cannot be sovereign is that the referendum tells us nothing, apart from the fact that a narrow majority voted to leave the EU. That says nothing about the mechanism by which we leave; and nothing about Article 50 in particular.

    4 On a different point the authors ignore the extent to which the idea that the EU is a ‘new legal order’ has been accepted, both by the Luxembourg court and domestic courts, at least since the days of Lord Denning. So much the the idea that the ECA is a mere conduit.

    5 The authors also ignore the fact that there is such a thing as ‘European common law’, which has been accepted by our courts for the last 40 years. Think of the doctrine of proportionality, for example.

    In my view, the High Court was dead right; and I confidently predict its view will be upheld by the Supreme Court. Which is not to say that I have wholly welcomed the influence of EU law. But still I voted remain, thinking that the loss, or sharing of sovereignty, in certain areas, was a small price to pay for the economic, social and political benefits.

    • Richard Allen
      December 1, 2016

      Ah sanity! Can you ask for your old job back ? There seems to be a serious lack of your kind of knowledge in Govt…. Where do you stand on this argument that the law is sovereign not parliament and that parliament cannot undermine itself ? (the coronation oath…)

  33. Pingback: Thomas Poole: Losing our Religion? Public Law and Brexit | UK Constitutional Law Association

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: