In a ground-breaking decision, the High Court in Miller issued a declaratory order that ‘the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.’ [paragraph 111]. In earlier posts, I explained how the publically available skeleton arguments of the Government and The People’s Challenge in Miller illustrated a tension between two approaches to reasoning about the case, which I referred to as an assessment of substance or form, borrowing these terms from the skeleton argument of The People’s Challenge. They are probably better described as a preference for either an approach that pays close attention to the letter of the law, or one focusing on a ‘reality check’ which pays less attention to precise definitions and distinctions, focusing more on the constitutional consequences of triggering Article 50. The judgment in Miller adopted the broad substantive approach. The question remains as to whether it was right to do so.
The first example of substance over form in Miller is the assessment of jurisdictional issues. Both sides agreed in their arguments before the court that the question as to the legal requirements of triggering Article 50 was a ‘justiciable question.’ [paragraph 5]. The court rightly concluded that ‘nothing really turns’ on whether we classify the triggering of Article 50 as a decision to withdraw from the EU under Article 50(1) or a notification of that decision under 50(2) as ‘the two provisions have to be read together’. If the Crown has no prerogative power to notify, then it follows that there can be no decision to withdraw in accordance with the provisions of the UK constitution [paragraph 16].
The second example of substance over form is the determination of constitutional law and its application to the facts of the case. The case concerned the relationship between prerogative powers and legislation. It is a well-settled principle of UK constitutional law, and common ground between the parties, that the Crown only has those prerogative powers that are recognised by the Common law. Both parties agreed that, as confirmed in section 1 of the Bill of Rights 1689, prerogative powers do not include the ability to ‘alter the law of the land, whether it be common law or contained in legislation.’ [paragraph 25]. There is a prerogative power to conduct foreign affairs, which includes the power to enter into and withdraw from Treaties. Generally speaking, Treaties do not create rights and obligations in English law, unless and until they are incorporated into English law, although Treaties can be used when interpreting domestic law. In other words, the prerogative power to withdraw from a Treaty exists, but only to the extent that this does not remove rights found in English law. For this to arise in Miller, leaving the EU has to modify rights incorporated into English law, either through legislation or the common law.
This leads to the first preference for substance over form, namely the High Court’s interpretation of the European Communities Act 1972. The ECA 1972 is the means through which directly effective provisions of EU law are incorporated into English law. Specifically, section 2(1) of the 1972 Act provides that ‘[a]ll such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.’ [emphasis added].
Formally, as a matter of strict legal doctrine, the 1972 Act is the conduit through which EU law is incorporated into English law. So, arguably, all that happens when we trigger Article 50 is that we set in motion a process through which some, or all, EU rights are no longer incorporated into English law, depending on whether a withdrawal agreement can be reached and the rights included in any agreement. However, the High Court looked at the statute more broadly; repeatedly explaining that section 2(1) ‘would be stripped of any practical effect’ [paragraph 51] and that section 2(2) would be ‘inevitably deprived of any practical application’. [paragraph 52]
The High Court justified its approach because of the status of the European Communities Act 1972 as a constitutional statute, in addition to the presumption that Parliament intends to legislate in conformity with constitutional principles. According to the High Court, the status of the 1972 Act as a constitutional statute enhances the importance of ensuring that it is interpreted against a backdrop of constitutional principles. One of the constitutional principles against which the 1972 Act is to be interpreted is ‘the usual constitutional principle that, unless Parliament legislates to the contrary, the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.’ [paragraph 84]. The more fundamental the constitutional principle, the more important it is to ensure that legislation is interpreted in the light of this fundamental principle. The constitutional principle that ‘the Crown has no power to alter the law of the land by prerogative powers’ is defined by the High Court as ‘powerful’, having ‘evolved through the long struggle…to assert parliamentary sovereignty and constrain the Crown’s prerogative powers.’ [paragraph 86]. Moreover, the European Communities Act 1972 had wide and profound effects, meaning that it was ‘especially unlikely that Parliament intended to leave their continued existence in the hands of the Crown through the exercise of prerogative powers.’ [paragraph 87]. Parliament, therefore, must be intended by the 1972 Act ‘to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power’ [paragraph 92]. It did not matter that, in an overly formalistic sense, these rights were not enacted as a series of specific rights set out precisely in a series of Acts of Parliament. It only mattered that, substantively, in reality, legislation was used to introduce these rights into domestic law and this legislation demonstrates legislative approval of EU rights being given effect in UK law. Moreover, given the background fundamental constitutional principles, Parliament could not be intended to have enabled these rights to then be removed from UK law by the Crown acting alone. The High Court prefers the approach of the claimants that legislative intent has to be found to demonstrate an intention to empower the removal of rights by the prerogative, rather than legislation demonstrating an intention to remove a residual prerogative power. This stems from the acceptance of the principle of constitutional law that prerogative powers cannot be used to change domestic law. As there was nothing in the 1972 Act which would, ‘either expressly or by necessary implication’ confer on the Crown the prerogative power to withdraw from the EU, the prerogative power could not be used.
To reach this conclusion, the High Court also adopted a broad, substantive approach to its determination of whether rights would be removed if the UK were to withdraw from the EU, again partly based on the agreed positions of both sides. The court recognised a three-fold division of rights: category (i) rights which could be replicated in UK law; category (ii) rights enjoyed by UK citizens outside the EU and category (iii) rights which could not be replicated in UK law. The Secretary of State accepted that category (iii) rights would be lost by withdrawal from the EU. Interpreted formally, category (i) rights are not necessarily removed. The legislation incorporating EU rights into English law would remain following withdrawal, and the UK Parliament, when enacting the proposed Great Repeal Act, could preserve other rights. Nevertheless, the High Court concluded that this possibility was irrelevant, especially given that the ability to seek a preliminary reference from the CJEU on the interpretation of EU rights would be lost. As regards category (ii) rights, although ‘in a highly formalistic sense’ these are enjoyed by UK citizens relying on the laws of other Member States, or on EU law applied in the courts of other Member States, this interpretation is ‘divorced from reality’ given that, when Parliament enacted the ECA 1972, it knew that this would provide the foundation for membership of the European Union, including providing rights to UK citizens which could be exercised abroad. [paragraph 66] It was also conceded as common ground that the rights of UK citizens to stand for election to, and vote for members of, the European Parliament – found in the European Parliamentary Elections Act 1992 – would ‘lose their effect if the United Kingdom withdraws from the European Union.’ [paragraph 69]
Evidence of the broad approach does not stop there. The court also takes a more substantive approach to its interpretation of prior case law. Much has been made of the contrast between Miller and the earlier decision of Fire Brigades Union, where there was a contradiction between a specific compensation scheme, set out in a Schedule to legislation, combined with the duty of the Minister to consider when to introduce this scheme into law and a scheme introduced into English law by the Minister exercising a prerogative power. Interpreted in a more formal manner, a specific statutory duty restricted the ability of the Minister to exercise his prerogative power – it could not be used to frustrate the will of Parliament as specifically expressed in legislation. Interpreted more broadly, the prerogative could not be used as a means through which the executive could frustrate the will of Parliament. The High Court preferred this more substantive approach, stating that ‘the effect of the decision in the Fire Brigades Union case was that Parliament could not be taken to have legislated in vain’. [paragraph 99]. In Fire Brigades Union, the Minister had a duty to consider when to enact a scheme at some point in time. In Miller, the European Communities Act 1972 set out existing legal duties to give effect to directly effective European Union law. This means that there is an even stronger inference that these legislative provisions should not be stripped of legal effect.
Should the High Court have preferred substance over form? To answer this, we need to examine each step in the argument. What is extraordinary is the extent to which this approach was based on agreed concessions between the parties – on jurisdiction, the determination of the content of constitutional law regarding the relationship between legislation and prerogative powers and the fact that some rights at least would be lost automatically following the triggering of Article 50. This frees up the court to focus more on substantive reality then technical legal form as it is not deciding legal issues, merely commenting on agreed concessions. As such, to that extent, it is hard to challenge the High Court’s approach.
Moreover, regardless of whether the triggering of Article 50 was a decision, or the notification of that decision, it needed to be made in a manner compatible with UK constitutional law. As was clear from the nature of the declaratory order, the High Court was not instructing the Minister to introduce legislation. It was declaring that the Minister did not have a prerogative power to trigger Article 50. There is also a plethora of authority, including the Bill of Rights 1689, to justify the claim that there is a principle of constitutional law that prerogative powers cannot be used to alter the law of the land – although it is not clear that this extends to include the claim that prerogative powers cannot be used to remove rights.
In addition, the Miller litigation is almost akin to a pre-emptive constitutional challenge. Actions for judicial review normally challenge the legality of a decision or an act that has already been taken. Where there is an ability to bring a challenge earlier, or in previous cases where earlier challenges have been brought, the court normally has a clear, detailed account of the measure it is examining. For example, under the Attorney-General Reference procedure under section 111(2) Government of Wales Act 2006, the court can scrutinise legislation which is fully drafted, but which has not yet been enacted (see for example: Agricultural Sector Wales Bill). In the recent Public Law Project case, a challenge was brought to a specific aspect of a draft order – the introduction of a residency test in order to qualify for civil legal aid.
In Miller, the challenge is to a specific action – to trigger Article 50 – but where we do not, at this moment in time, know the full consequences of this action. We do not know what, if any, withdrawal agreement would be reached, or whether Parliament would be able to legislate to confirm the removal of rights currently enjoyed under EU law which would occur following our withdrawal from the EU. This is unprecedented, but understandable. If, as the parties agreed, Article 50 cannot be revoked once triggered (which is contestable and could have been contested), then there may be no other possibility of the courts being able to examine the legality of its triggering once the process has been set in place. In these circumstances, it may be better for the courts to err on the side of caution; evaluating ‘what if…’ without balancing this against ‘but what if it doesn’t…’.
These circumstances may provide a more general justification for the approach of the High court. As Elliott and Hooper rightly point out, to concede that the triggering of Article 50 automatically means that rights are lost is, to put it extremely mildly, highly dubious. Individuals will continue to rely on their rights in EU law before UK courts in the period between the triggering of Article 50 and the end of the negotiation period/ratification of a withdrawal agreement, whilst the UK remains a member of the EU, so these rights would not be lost immediately following the triggering of Article 50. Nevertheless, the concession appears to have been made that rights would automatically be lost by triggering Article 50. This, in and of itself, justifies the adoption of a broad approach to the question of whether rights would be lost; in essence it was not for the court to decide having been conceded. Moreover, even without this concession, this approach would have been justified. It is an acceptance of the possibility that statutorily-protected rights may be removed without parliamentary oversight. It is also hard to see how a legal action could be brought in the future, if: Article 50 was triggered; no withdrawal agreement was reached; the Article 50 notification was not revoked and the UK left the EU, such that the exercise of a prerogative power removed statutorily-protected rights. To be overly formalistic when determining possible future factual scenarios may mean that the UK constitution is breached, with no possibility of its being corrected in the future were this oversight not to take place. In these circumstances, focusing on ‘what if…’ without balancing this against ‘but what if it doesn’t…’ is justified. The court is erring on the side of caution to prevent a possible breach of foundational principles of the UK constitution; here parliamentary sovereignty and the rule of law.
What is more problematic is the approach to the interpretation of the European Communities Act 1972, particularly as regards the criticisms of Professor Finnis, recognised by Elliott and Hooper and Feldman. Finnis argues that any rights that would be removed by withdrawal from the EU are not statutory rights that have been enacted by the UK Parliament. Rather, they are EU rights, enacted by EU institutions, with the European Communities Act 1972 being the channel through which they are then incorporated into English law. As such, they are not provisions of domestic law. To withdraw from the EU stops the flow of EU rights passing through the channel and entering into the UK. How did the High Court get around this potential problem, where there was no agreed position of the parties? It did so by providing a very broad, substantive interpretation of the European Communities Act 1972. In reality, the Act is not merely a channel, it ‘switches on direct effect’ which would then be ‘switched off’ by the UK’s withdrawal from the EU. This may seem like a fruitless distinction – opening or closing gates as opposed to switching on or off a light. However, Finnis’s pipeline analogy appears to imply that the UK legislature is passive. It just raises or lowers the gate at the end of a pipeline, allowing EU rights into UK law. So, EU ‘rights’ are not ‘enacted’ by the UK Parliament. ‘Switching on’ direct effect is more active. It’s a recognition that EU law is a part of UK law, having been incorporated into English law through our membership of the EU. EU rights are not just ‘allowed in’ to English law, therefore not being statutory rights. They are effectively endorsed by legislation which expresses our membership of the EU, with all that entails. This ‘endorsement’ appears to make them the equivalent of statutory rights.
In addition, for the High Court, it could not be that Parliament would have wanted the endorsement of EU rights through the European Communities Act 1972 to be switched off by the executive alone. The High Court recognised that the European Communities Act 1972 is a constitutional statute, which cannot be overturned by implied repeal. It requires specific or express wording, so it is clear that Parliament really does want to repeal a constitutional statute. In this sense, a constitutional statute is ‘more important’ than ordinary legislation. Therefore, it would appear odd that the practical effect of a constitutional statute could be removed by the executive acting alone. Moreover, all legislation has to be interpreted against a backdrop of constitutional principles. This includes the constitutional principle that prerogative powers cannot alter the law. A vague intention that Parliament was authorising the executive to use prerogative powers to alter the law is not sufficient. Clearer, specific words are required. These were not found in the European Communities Act 1972.
This is a brave interpretation The court appears to be demonstrating a clear preference for substantive reality over legalistic and formalistic reasoning. It is as if the High Court has adopted a ‘reality-check’ approach. Yes, it may technically be the case that the European Communities Act 1972 is a mere conduit for EU law. But is this a realistic interpretation of the true impact of the Act? Does not the 1972 Act also reflect a clear constitutional choice to join the EU, accept the primacy of directly effective EU law and to transfer law-making power in specifically-defined areas from the UK to the EU – in essence an endorsement of rights making them the equivalent of statutorily-enacted rights? Is this ‘reality-check’ justified? I think it is important to recognise that this is not clear-cut –as witnessed by the differing views of Barber and King, Elliott and Hooper and Feldman. It is a highly contestable issue, involving an assessment of the approach to constitutional adjudication more generally as well as its specific application to this case. I would argue that, in Miller, this approach could be justified for two reasons; because of the nature of the adjudication before the court and because of the potential consequences of triggering Article 50 without any form of democratic oversight.
The challenge has been brought at an early stage. We do not yet know the precise implications of the UK’s withdrawal from the EU. The UK has not yet triggered article 50, let alone concluded a withdrawal agreement setting out the new relationship between the UK and the EU, or been left in a scenario where the UK leaves the EU with no specific agreement as to the future relations between the UK and the EU. In these circumstances, the court can only reason in a more abstract manner. Moreover, a legalistic, formalistic approach may fail to take account of the possibility that withdrawing from the EU may mean that a prerogative power is exercised unconstitutionally. As discussed above, it may be too late to stop that potential illegality which may arise in the future. This may justify a broad approach to determining potential illegality and the reality of withdrawing from the EU, as well as looking at ‘what if’ without balancing this against ‘but what if it doesn’t’. This is exacerbated by the remedy – a declaratory order that prerogative power cannot be used, not a quashing order to strike down a specific exercise of a prerogative power or to dictate how the Government should respond.
Second, it is important to recognise the need for a constitutional ‘reality check’. The UK is about to make a momentous constitutional change – a change which could undermine the relationship between the component nations of the UK as well as drastically modify the UK’s relationship with the EU. It’s important that such changes are done in a constitutionally correct and reflective manner. Such a broad sea-change should be made with the consent of the people, obtained through the referendum, and a detailed deliberation in Parliament of what is best for all of the British people – i.e. those who voted to leave and those who voted to remain, all of whom will have made this choice for a variety of different reasons, with different preferences for soft Brexit, hard Brexit, and all the varieties in between. By focusing on broad substantive principles, the High Court was not acting to gain powers for itself, but to preserve the sovereignty of Parliament – ironically the very principle those advocating Brexit wished to preserve – and its delicate balance with the rule of law. This is the epitome of constitutional adjudication. It acts as a check, to maintain the delicate balance of powers on which the legitimacy of government in the United Kingdom is based. It also checks that, where rights will potentially be removed, or long-standing constitutional principles may be eroded, the Government is sure of its intention and aware of the consequence of its actions, with the backing of the people either directly or indirectly through their representatives in Parliament. By doing so, the High Court is not preventing Brexit. Nor is it defying the will of the people. It is encouraging parliamentary reflection and debate over a major constitutional change which is in danger of descending into anger, bitter recriminations and violence.
With thanks to Paul Craig, Mark Elliott, Hayley Hooper, Ewan Smith and Graham May for their helpful discussions and comments on earlier drafts.
Alison Young is Professor of Public Law and a Fellow of Hertford College, University of Oxford.
(Suggested citation: A. Young, ‘R (Miller) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality?’, U.K. Const. L. Blog (9th Nov 2016) (available at https://ukconstitutionallaw.org/))