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Keith Ewing: A Review of the Miller Decision

keith-ewingI

Shortly after the referendum on 23 June, demands were made that continuing EU membership should now be considered by Parliament, with a view it seems to stop BREXIT happening, and to frustrate the will of the 17 million who voted to leave.  Indeed, the Guardian carried an article only five days later on ‘How we can stop Brexit – lobby our MPs’ (29 June 2016), no doubt as inflammatory and unacceptable to the BREXITEERS as subsequent developments have been to the REMAINERS. Fearing that Parliament was being enlisted with an agenda to defeat the referendum result, it is not surprising that the BREXITEERS should wish to exclude Parliament from the process altogether.

Even better if they could find legal authority to implement the referendum result that would not require Parliament’s formal input until much later in the process. So we discover only 12 days after the referendum that ministers had been ‘advised by the Government lawyers that, in their view, it clearly is a prerogative power’ (HC 431, 2016-17, Oral evidence, Q 86). The ‘it’ to which Mr Oliver Letwin is here referring is the decision to trigger Article 50. In view of the fact that the government was notoriously unprepared for BREXIT, the period between 23 June and Mr Letwin’s appearance before the Foreign Affairs Committee on 5 July seems an awfully short period of time in which to produce such a considered, authoritative and conclusive view.

And so it proved to be, with the High Court delivering a historic blow to the government on 3 November, holding that there is no prerogative power to trigger Article 50. This is a decision that wrong-footed almost everyone, a court in Northern Ireland having held only a week earlier that there was no legal basis for judicial intervention to stop the government (Re McCord’s Application [2016] NIQB 85). The widespread scepticism about whether the courts had the grounds to intervene, and if they did whether they would have the courage to do so, fuelled the over-confidence on the side of the BREXITEERS, which was so rudely shattered by the High Court to the evident dismay of those planning to leave.

The High Court decision is nothing if not brave, for the judges must have anticipated the growling response from an insurgent press in full spate, the shock troops in the BREXIT wars, and others besides. It was now the turn of the REMAINERS to be appalled by inflammatory remarks in the press, which in some quarters labelled the judges who delivered judgment in Miller v Secretary of State for Exiting the EU, as ‘enemies of the people’ (Daily Mail, 4 November 2016). Equally unacceptable was the abuse heaped upon the claimants in a frenzy led by the Daily Mail, the Daily Express and the Daily Telegraph, a frenzy to which even the Prime Minister herself is alleged to have contributed (The Independent, 3 November).

II

The most surprising feature of the Miller decision is the narrow grounds on which the Article 50 question was dealt with. The decision addressed the sole ground that the government has prerogative authority to trigger Article 50, perhaps because public statements had been made by ministers to this effect at a time when they should have remained silent until the legal position had been more carefully considered. As the High Court has made clear there is no question that the government cannot change domestic law by means of prerogative power: Constitutional Law 101.

This should have been known from the experience of joining the European Community in the first place, a process which took three steps: the Treaty of Rome had to be signed; it had then to be ratified; and it had then to be implemented (in the last case by the European Communities Act 1972). The first of these steps is perhaps the parallel step to what is now Article 50, and it is not without irony that those who were opposed to EEC membership demanded that Parliament not only have sight of the accession treaty, but also the right to approve it before it was signed.

But in rejecting this demand, the then Solicitor General (who was in favour of EEC membership) relied on constitutional orthodoxy in saying that

Throughout, the treaty making power resides in the Crown, in Her Majesty the Queen acting upon the advice of her Ministers. It is by virtue of the Royal Prerogative in the conduct of foreign affairs that the Government initiate, sign and ratify international agreements. As a matter of constitutional law, no parliamentary authority is necessary before the Crown may exercise those powers. The other principle is equally important. Those prerogative powers, the treaty-making powers, do not enable the Crown to alter the law within the United Kingdom so as to implement the treaty. This internal implementation—this is an important point about which the House can be entirely reassured—is fundamentally distinct from the making or the conclusion of the treaty. If a treaty includes an alteration of our domestic law, including the granting of new powers to the Crown or the undertaking of new financial commitments, then Parliamentary approval in the form of appropriate legislation is necessary before the objectives of the treaty can be met. (H C Debs, 20 January 1972, col 793-4. Emphasis added.)

So there was no need for parliamentary approval before the treaty was signed, because the treaty would have no effect in domestic law. The treaty would in due course be laid before Parliament as required by the Ponsonby rule (now Constitutional Reform and Governance Act 2010, s 20), and would be implemented subsequently by the 1972 Act.

The key point here, of course, is not that the government has prerogative power to sign treaties, but the implicit limitation of that power. The Solicitor General could confidently claim the existence of such a power because as he said, signing the treaty would not change the law, however curious it might seem that he would want to deny Parliament a vote. When we come to BREXIT, however, the position is different in the sense that triggering the exit process will itself affect legal rights, as is explained by the High Court in Miller. But quite apart from the sometimes tortuous analysis in the case, the rights which will be directly affected are those Treaty provisions which have direct horizontal effect.

In these cases – notably the right to equal pay in TFEU, Article 157 – the right is clear and unequivocal (Case 43/75, Defrenne v SABENA [1976] ECR 00455). By virtue of Article 50, treaty provisions will cease to have effect after two years from the date the trigger is pulled. It is true of course that Treaty provisions have effect by virtue of the 1972 Act, and that in principle the 1972 Act could remain on the books long after Article 50 is invoked.  But the fact is that by virtue of the European Union (Amendment) Act 2008, the treaties to which the 1972 Act NOW applies are the TEU and the TFEU, including Article 50 of the former, which makes it clear that ALL treaty provisions will normally cease to apply after two years of Article 50 being triggered.

It is thus clear that as a matter of basic constitutional law the prerogative power is not wide enough to do what Oliver Letwin claimed before the House of Commons Foreign Affairs Committee, and that government lawyers were ill-advised to suggest otherwise. The point is well made by the long line of authority cited in Miller.  There is a clear need for parliamentary authority to trigger Article 50, and almost certainly a need for that authority to be in the form of primary legislation. It would be a high risk to assume that a resolution of either or both Houses is sufficient authority to amend, repeal or dis-apply an Act of Parliament. The question then is whether that parliamentary authority ALREADY exists, making it unnecessary for the government to seek fresh legislation.

I must confess that I had thought that a general power to this effect already existed in the 1972 Act (as amended by the European Union (Amendment) Act 2008, which incorporated the TEU into domestic law). TEU, Article 50 authorises ALL member states, INCLUDING the United Kingdom, to withdraw in accordance with their own constitutional requirements. As a matter of constitutional practice, foreign affairs in this country are initially an executive act, the main requirement being that these powers cannot be exercised to change the law without parliamentary authority.   But by incorporating Article 50, Parliament has provided that authority and government power to withdraw as a matter of domestic law. The 2008 Act’s incorporation of Article 50 was not referred to by the court save only to say that the government had argued that it did not restrict the prerogative power of the government.  My understanding is the opposite:  the 2008 gave power to the government.

Parliament did not confer that general power on government to withdraw subject to the condition that Parliament should be required to approve any decision to exercise the power, though it had the chance to do so. Although Parliament might generally expect to be consulted before a statutory power of this magnitude is exercised, on this occasion Parliament effectively waived any such claim by agreeing to hold a referendum, strengthened by the fact that it was a manifesto commitment of the governing party, strengthened still further by a clear undertaking in the latter manifesto that the government would be bound by the result, whatever its outcome.

III

Beyond the narrow point of the decision, the Miller case raises a number of other significant issues. The first has been the media and ministerial reaction, which shows a clear failure by the former to understand the basic constitutional principles by which this country is governed, and a clear failure by the latter to discharge their legal responsibilities (Constitutional Reform Act 2005, s 3:  ‘The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary’). So far as the press is concerned, the reaction to the Miller decision was rabid – attacking not only the litigants but also the judges who were pilloried on the front pages of what have become little more than propaganda sheets for UKIP.

In the words of former Attorney General Dominic Grieve, the coverage was reminiscent of Mugabe’s Zimbabwe (The Guardian, 5 November 2016). It is designed no doubt to intimidate the judges. At the time of writing, the Daily Mail had already started on the Supreme Court, exposing one of its members as a ‘feminist and a longstanding critic of marriage’ (Daily Mail, 4 November 2016), neither obviously relevant in the Article 50 debate. What is lamentable about this coverage is not only the nature of the attacks, but the ignorance by which they are fuelled. I have in mind here the ignorance of the constitutional history and principles of the country whose ‘independence’ the BREXITEERS purport to defend.

What the High Court did was to assert the basic constitutional rule that the governments of this country cannot change legislation by executive fiat. That is uncontroversial. It is unclear, however, whether this is a power that the right wing press would like the government to possess, which some might think would be usefully employed against those who appear to demand it. The zealots should be careful of what they wish for, and perhaps reflect also on their own contribution to constitutional principle, which on one famous occasion included lending support and succour to Mosley and his fascists (see Roy Greenslade, ‘Don’t Damn the Daily Mail for its Fascist Flirtation 80 Years Ago’, The Guardian, 6 December 2011).

So far as ministers are concerned, they ALL have a responsibility to protect the independence of the judiciary. The ink on the decision was barely dry when one minister referred to the case as ‘an attempt to frustrate the will of the British people and it is unacceptable’. In the face of the personal attack on judges by the press, the Ministry of Justice chose initially not to make a statement. Yet the Lord Chancellor has a personal duty over and above that of other ministers to safeguard judicial independence, a principle which the current incumbent is only slowly beginning to understand. When a statement was finally made by the Lord Chancellor, it was criticised as being too little, too late, an anodyne remark about judicial independence failing to address the specific issues (The Observer, 6 November 2016). This led to a third response, this time eventually defending the integrity of the Lord Chief Justice (The Guardian, 7 November 2016).

In a parliamentary rather than a populist democracy it is elected politicians and not invisible proprietors and camera-shy editors who make the law. Which of course raises a second issue raised by Miller, namely the fissure between the people and Parliament which the decision has exposed. It may well be that our existing constitutional principles do not sufficiently accommodate the growing use of referendums as an instrument for the resolution of differences between us. But that being the case, it is certainly no answer to say that the referendum was only ‘advisory’ as the REMAINERS claim.

As already pointed out, David Cameron made it clear, when he gambled the future of his country on the narrow sectarian interests of his party (not to mention his own self-interest), writing in the Conservative Party General Election Manifesto in 2015 that he would be bound by the outcome of the referendum, whatever the result. The fact that neither he nor anyone else expected the outcome delivered does not make that commitment any less binding.   Nor can it plausibly be claimed that MPs who supported the referendum did so on the basis that their support for it was conditional on the outcome.

In my view Parliament provided the power to BREXIT (as explained above) and determined the means by which that power might be used (the Referendum Act 2015), and in my view Parliament’s fingerprints are already all over the process. It does not follow from this, however, that the High Court was wrong in its treatment of the referendum, even though it did not have the legal effects that BREXITEERS obviously expected and demanded. It comes back to the narrow issue before the court.   The fact that there was a referendum does not give the government the power by prerogative to take away statutory rights.

Nor in any event should BREXIT be left to the government to decide. The BREXITEERS and their attack dogs claim far too much when they say that the referendum gives the government a blank cheque to deliver whatever kind of BREXIT the government wants rather than what the PEOPLE want. When all is said and done, the referendum result was not overwhelming, and while it gave a mandate to BREXIT, it gave no mandate as to the form of BREXIT, and certainly no licence for a BREXIT determined exclusively by Messrs Davis, Fox and Johnson.

IV

Which brings us to the third issue to arise from the Miller decision, namely the wider political implications.   Some talk of a constitutional crisis.  That seems silly.  There is no constitutional crisis, the constitution is flexible enough to adapt to whatever will be thrown at it, however uncomfortable the journey may be for some political actors.   But the decision will almost certainly unlock a savoury political problem for the government, if it is upheld by the Supreme Court.

The current political climate is so unpredictable that it is pointless trying to speculate about what will happen in the immediate future. There are, however, no doubt some MPs who would have preferred not to have been given this opportunity to exercise their sovereignty, MPs who will now be pitted against a majority of their constituents. There will also be a number of MPs who will be leaving Parliament after the next election, unconstrained by the need to tailor their behaviour to the demands of re-election. Adding to the uncertainty is another ill-judged Cameron initiative, namely the proposed boundary changes.

The only thing that is certain is thus that any BREXIT Bill will enter a House of Commons at a time of great uncertainty within the House, a time when in addition the House has been empowered by the creation of a new select committee with a powerful chairman. It can be expected that while the House will support the Bill, that support will not be unconditional and that proper scrutiny will now take place on the government’s proposals in a way that ministers had hoped to avoid.   But if the purpose of BREXIT was to reclaim parliamentary sovereignty, how can this be wrong?

The role of Parliament in these circumstances is thus not to block BREXIT but to mediate the views of the people and the wishes of government. Parliament has a duty to ensure that the voices of ALL the people are heard, and that BREXIT takes place in the national interest, not the sectarian interest of the Conservative Party or a section thereof.   People of all parties voted for BREXIT, and those on the left have a very different vision of BREXIT and different aspirations from those on the right. The voice of the left is a voice that not everyone will feel properly represented by the hapless ministers now in charge.

A potentially more serious problem for the government than the House of Commons is what happens in the House of Lords where there are reports that a majority of peers are for REMAIN. The political power of the House of Lords is greatly under-estimated by modern accounts of its role. For the most part the House of Lords is kept in check by the Salisbury Convention, whereby it will not frustrate the business of the government designed to implement manifesto commitments (see A W Bradley, K D Ewing and C J S Knight, Constitutional and Administrative Law (16th ed, 2015), pp 205-7). It is strongly arguable of course that a BREXIT Bill will thus be covered by Salisbury.  But will the Lords see it in these terms?

The Lords can refuse to pass the BREXIT Bill, and can insist on amendments that the government is unwilling to accept.   True, the government can invoke the Parliament Acts 1911-1949 to get its own way.   But that would mean not only another bruising encounter in the Commons, but also a delay of perhaps a year.   One thing the government does not have is the luxury of time.   Any delay in the House of Lords will take us dangerously close to the general election in 2020 (assuming the government has not collapsed before then), and an election that will be rerun of the 2016 referendum.

The House of Lords thus has real power in this unfolding drama, should it wish to exercise it, and the capacity to cause real damage to a BREXIT Bill, should the Supreme Court uphold the High Court.   New battle-lines would then be drawn:  it would be the peers against the people.   Again it seems unlikely that the House of Lords would vote against, though who can say at this stage?   And although the Lords would nevertheless be ill-advised to block the Bill altogether, there is absolutely nothing the government can do to restrain the real political power of the unelected second chamber.

The spectre here of course is the controversy of 1909, in which the hereditary peers famously rejected Lloyd George’s People’s Budget, leading to demands for the creation of enough peers to get the Budget through, two general elections in 1910, and the subordination by law of the legal powers of the Lords. A basic knowledge of history may lead the existing generation of Lords to put institutional self-preservation ahead of individual grand-standing.  The irony will nevertheless not be lost of unelected judges unleashing the power of the unelected Lords to block the direct democracy of the referendum.

V

The High Court decision in Miller has brought into sharp focus at least three basic constitutional principles: the rule of law, the independence of the judiciary, and the sovereignty of Parliament. So far as the last is concerned, it has addressed the core question that the government does not have prerogative power to BREXIT. That is the easy question. But it leaves unanswered the more difficult question whether the government has statutory power to BREXIT by virtue of the European Communities Act 1972, as amended by the European Union (Amendment) Act 2008. For this purpose, I am assuming that Article 50 contains powers within the terms of the 1972 Act, s 2(1).

That said, there is no doubting that BREXIT has unleashed great political uncertainty. It has done so by piling contradiction upon contradiction, irony upon irony, expediency upon expediency, inexpediency upon inexpediency, and hypocrisy upon hypocrisy – in other words it is piling politics upon politics. To these ends it is striking that the BREXITEERS wish to contain the voice of Parliament when their forbears, the OUTERS, 45 years ago demanded and were denied a parliamentary vote. And conversely striking that the REMAINERS should be demanding the opposite when the INNERS then in government refused a vote 45 years ago.

Equally striking is the demand of the BREXITEERS for a repatriation of parliamentary sovereignty and the ultimate authority of the British courts, yet the hydrophobic response from those making these demands when the British courts assert the sovereignty of the British Parliament in accordance with the British constitution, the basic principles of which the BREXITEERS so plainly misunderstand. The supreme irony of course is that if there is legal authority to do what the BREXITEERS want to do, it will arise, admittedly by virtue of an Act of Parliament, but an Act of Parliament that gives effect to EU law, on which the BREXITEERS’ case must lie.

Temperatures need to cool on both sides, and a lot of ignorant people in positions of authority and influence need to take time out to learn some constitutional law.   An opportunity perhaps for Law Schools in the new era of commercialisation?    Miller is a hiccup rather than a mortal blow to the ambitions of the BREXITEERS, and while it is right that the referendum result is respected, it is also right that the referendum result is not a blank cheque for Theresa May and her colleagues to negotiate whatever deal they want (or whatever deal they can).  It would, however, have been more seemly if Parliament had asserted its sovereignty earlier, and got off its knees without having to be told to do so by the High Court.

K D Ewing, Professor of Public Law, King’s College London

This is an abridged version of the editor’s introduction of the forthcoming special issue of the King’s Law Journal on BREXIT.

(Suggested citation: K. Ewing, ‘A Review of the Miller Decision’, U.K. Const. L. Blog (10th Nov 2016) (available at https://ukconstitutionallaw.org/))

10 comments on “Keith Ewing: A Review of the Miller Decision

  1. Dr Mike Tremblay
    November 10, 2016

    This and other commentary on Miller is well-informed and dynamic. I worry, though, that folks are confusing the woods with the trees.

    Entering and exiting the EU are not symmetrical acts.

    Let’s consider slavery. Abolishing slavery grants rights to disenfranchised people; to a great extent, it granted them status as persons (if you think of the wording of the US Constitutions).

    Asymmetrically, It also created a situation whereby people can’t sell themselves into slavery. Indeed, the general case is that rights are possessed by persons whether they act on them or not. For example, rights such as free movement and voting are rights we enjoy whether we actually move or vote.

    In the EU context, these EU rights inhere in our EU citizenship, and perhaps more importantly, in our personhood. More fundamentally, rights contribute to our autonomy as persons. Even in the state of nature (Locke, Hobbes, et al notwithstanding), rights exist even if there are not states to bestow them. They are the ur from which the common law itself emerges.

    I’d suggest that not even a referendum can remove rights as that gut rights of their force, and make them contingent on the views of people taken at any particular time and which might change — rights have a distinct character that makes them temporally immutable. I think that is why the 4 freedoms in EU law constitute the firm red line that cannot be crossed, otherwise the edifice of EU law collapses.

    I now fully expect to keep my European citizenship and the rights that it has granted me and which are integral to my personhood, upon leaving the EU, through a dual citizenship arrangement. And that will put the cat amongst the brexit pigeons.

  2. fatcat62
    November 10, 2016

    Reblogged this on fatcat62's Blog.

  3. Sean Feeney
    November 10, 2016

    Professor Ewing misstates the problem when he says “a lot of ignorant people in positions of authority and influence need to take time out to learn some constitutional law”.

    I believe the real problem here is the astonishing failure to apply clearly relevant and clearly material “constitutional law” by informed “people in positions of authority” such as: the three Divisional Court judges in Miller, Lord Chief Justice Lord Thomas of Cwmgiedd CJ, the Master of the Rolls Sir Terence Etherton , and Lord Justice Sales; and leading and junior Counsel in the case; and academic commentators such as Professor Ewing himself.

    On a Pepper v Hart reading [1993] AC 593 against the Hansard evidence of the Government proposers, the 2015 Bill was intended to provide for the UK’s statutory decision to leave the UK. The mischief it was intended to address was the avoidance of the taking of the decision to leave by Parliament.

    Notification is then simply a matter of reading into the 2015 Act (which provided for the referendum) a domestic duty to notify, not a discretionary power, on the basis of the interpretation that notification is an obligation under EU law engaged by a decision to leave the EU, applying Marleasing principles if applicable (Case C-106/89, Marleasing ECLI:EU:C:1990:395) or applying general presumptions of statutory construction in the context of an international law obligation; see [40] of Miller.

    http://www.bailii.org/uk/cases/UKHL/1992/3.html

    The judgment of the Divisional Court was reached without oral argument or reasoned judgment on Pepper despite multiple parties, and the judgment itself, relaying on multiple “Parliamentary material[s]” and despite Her Majesty’s Attorney General expressly raising “Parliamentary privilege” at p. 10 footnote 5 of his skeleton:

    “Mr Dos Santos also relies upon the recent report of the House of Lords Select Committee on the Constitution, The Invoking of Article 50 (HL Paper 44) as supporting his position with regard to the necessary role of Parliament (Skeleton Argument, §35(3)). The Secretary of State agrees with Mr Dos Santos that the doctrine of Parliamentary privilege prevents any reliance being placed upon the
    Committee’s conclusions and would add only that those conclusions are not in fact in accordance with the position of the claimant parties in this case. They were to the effect that Parliament could and should give approval to the triggering of Article 50 by a resolution of each House, rather than that primary legislation is legally required.”

    I beleive public anger is not only justified it should be extended to “non-ignorant” commentators, like Professor Ewing, who conspicuously fail to address the authority of Pepper.

    I believe unless the Supreme Court distinguishes, reconsiders or reverses Pepper, it will be determinative authority in this case.

  4. rabbiabel
    November 10, 2016

    Professor Ewing’s article provokes the need for urgent research into the evolution of the referendum and the extent to which it contractually binds Parliament to fulfil its promises to the people.

  5. Sean Feeney
    November 10, 2016

    The argument I put above appears to be part of a public-interest application to join the Supreme Court appeal by third-party interveners Lawyers for Britain (with whom I am entirely unconnected):

    ‘The referendum was authorised by Parliament to give effect to a clear and unequivocal pledge in the General Election manifesto of the winning party that the people would decide (not merely advise on) the question of our membership of the EU. We believe that the outcome gives rise to a clear and unambiguous constitutional mandate to implement the people’s decision to leave which must be respected by government and Parliament, and reject the suggestion that the referendum was merely “advisory”.’

    For the full press release see:

    http://www.lawyersforbritain.org/referendum-article-50-case.shtml

  6. Mike Fearon
    November 14, 2016

    I am compelled to support Sean Feeney’s comments in relation to this analysis. There are a number of difficulties with the High Court judgement, advanced elsewhere in this forum, and the debate appears on any analysis to be set to continue at least until it is revisited.
    Professor Allott has published, in these pages, a useful analysis of the process of BREXIT, and to some extent indicated the order of events. This highlights an issue which may, and probably should, resurface at the Supreme Court. The High Court dealt briefly with the issue of whether the challenge was to “the making of a decision to withdraw….under Article 50(1) or a decision to notify….. under Article 50 (2)” and concluded that “nothing really turns on this”. I would suggest that this issue is actually fundamental, and should be reconsidered at (or perhaps in advance of) the Supreme Court hearing, as it should redirect the interest of the parties, and if necessary the Court, to reconsider whether the issue is justiciable at all.

    Professor Allott may not be the first to point out that, under Article 50, a Member State may decide to withdraw from the Union. Having made the decision, that Member State shall notify the European Council [EC] of its intention, i.e. it is bound by EU Treaty obligations so to do. The only way, ironically, to avoid this obligation would be to withdraw from the Treaties. The issue of whether the EC should or must be notified, is therefore not justiciable, and there must be a substantial question as to why the Court should interfere in the question of who transmits the notification, or what Parliament’s involvement should be. If the decision has been made, any question of loss of rights (some of which are inevitable) or alteration to domestic law, has already been settled, or put at risk, as the case may be. The loss and/or alteration originate in the decision, not in the notification. The date of notification may or may not have an effect on the timing of the loss or alteration. There are mechanisms available to Parliament to authorise notification, and/or to affect timing, which do not require intervention by the Courts. There is no requirement for a BREXIT bill, as suggested here.

    Should Parliament wish to approve the notification, there are a number of ways in which it can do so. The simplest is an early day motion in the House of Commons, giving the House the opportunity to debate whatever points it considers relevant and to confirm that it wishes the Secretary of State to notify. It would be open to the House to specify a desirable timescale, should it wish to do so, with the possibility of reducing or extending that proposed by the Executive. It is difficult to see any justification for the involvement of the Lords, but the Upper House might take its own view on this, and carry out its own authorisation process. There are a number of processes already in place for further involvement of both Houses in the following stage of negotiation, as the Secretary of State for BREXIT has indicated to the Court.

    Is it significant then, whether the Court is being asked to consider the legitimacy of the decision, or of the notification? I suggest that it is. The Executive is of the view that the decision to withdraw under Article 50 (1) has already been taken. The principal claimant, Ms Miller, publicly concedes that the decision has been taken and should not be revisited. This begs the question, as I have suggested in a comment on Professor Allott’s contribution, as to why the action, or at least her claim, has not already been withdrawn. If both parties agree that the decision has been taken, they necessarily agree that the EC must be notified. A costly Court action, in these circumstances, and for no apparent end or gain to either party, is frivolous.

    If the claimants are in truth disingenuous, and wish to challenge the Executive’s view that the decision has already been made, this is a different matter. However, the same mechanisms exist for Parliament to challenge the decision. An early day motion, for example, confirming that the House rejects the majority view in the referendum, and is resolved to remain in the EU, can be introduced by any Member of the House without intervention by the Courts. Should that motion be debated and approved, the direction is changed by the action of Parliament, which is perhaps more appropriate in the context of the British Constitution than an intervention by the Court. Honesty, and genuine bravery, may be more beneficial, particularly for the taxpayer, than a belated education in Constitutional Law, or in the practical implications of a decision to leave the EU, or indeed in the meaning of the word “decision”.

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

  8. Sean Feeney
    November 15, 2016

    Upon reflection, my argument above about power to notify being readable into the 2015 is wrong.

    (And it is simply unarguable for anyone to say the claims are not justiciable, because resolution of the claims involves domestic statutory construction)

    I believe Miller was correctly reasoned at [105] “The Secretary of State’s case regarding his ability to give notice under Article 50 was based squarely on the Crown’s prerogative power. His counsel made it clear that he does not contend that the 2015 Referendum Act supplied a statutory power for the Crown to give notice under Article 50. He is right not to do so. Any argument to that effect would have been untenable as a matter of statutory interpretation of the 2015 Referendum Act. ”

    However, if the Supreme Court finds that a statutory decision to leave the EU was taken under the 2015 Act by the referendum, then the Supreme Court will be slow to find that power to notify does not lie either in the ECA 1972 or under the prerogative powers of the Crown since this would leave the UK in breach of its international obligation to notify. Pepper v Hart would be relevant to statutory construction to avoid such an “absurd” reading.

    The Crown appellants may argue prerogative powes are statutory powers, but subject to common law limits, being “established” under the Bill of Rights 1689; see ground 2d of the now published grounds for appeal (and defence transcript submissions on the “prerogatives”).

    https://www.gov.uk/government/publications/grounds-of-appeal-to-the-supreme-court-of-the-secretary-of-state-for-exiting-the-european-union

    Different issues of statutory construction of the 1972 Act occur in Miller to Shindler when considering the power to notify. Shindler correctly construed the 1972 Act with reference to Article 50(1); this is the approach the Supreme Court should adopt when construing whether the 2015 Act provided for a statutory decision to leave.

    See the Speech of Lord Hoffman in Regina v Lyons and others (Appellants) (on appeal from the Court of Appeal (Criminal Division) is even stronger in Miller.

    ‘And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 283:
    “I conceive it to be my duty, when I am free to do so, to intepret the law in accordance with the obligations of the Crown under [the Convention]”.

    28. But for present purposes the important words are “when I am free to do so”. The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.’

    http://www.bailii.org/uk/cases/UKHL/2002/44.html

    It is Articles 50(2) and 50(3) which are relevant to statutory construction of a power to notify. Article 50(3) makes it clear that the EU Treaty obligations continue to apply until the member state has withdrawn. So the rules of the club, which the 1972 Act gives effect to, may bring the 1972 Act back into play for the purposes of the power to notify, once an Article 50(1) decision to leave has been made.

    Miller is potentially distinguishable from Lyons because Section 3(1) of ECA places the Supreme Court under a duty to apply EU law unless the Supreme Court finds notification is outwith the scope of the 1972 Act. The scope of the 1972 Act may be different for the decision to leave and notification of it. The issue appears to turn on which is the consequential step in domestic law.

    If the Supreme Court still finds notification outwith the scope of the 1972 Act (applying the long title findings in Miller) the power to notify must lie in the prerogatives of the Crown otherwise the UK the UK would have made a lawful decision to leave with no power to fulfil its obligations.

    This is absurd because Parliament would be presumed when it enacted the 2015 Act to legislate in full knowledge of the law, including the obligation to notify under Article 50(2.).

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

  10. Mike Fearon
    November 16, 2016

    Sean (if I may) I probably should return (as I hope I will before very long) to my long abandoned legal education before I start using terms like “justiciable”. However, I think the more general point about the relative importance of the decision and the notification is supported more ably and comprehensively by this analysis than by my own contribution. The SC is likely, as you suggest, to be reluctant to find that the Crown cannot legally notify the EC of a decision which is both extant and in accordance with constitutional requirements.

    I am still of the opinion that the politicians need to pin down the decision, and an agreement on notification. Even if the SC does find that the Crown can notify the decision, it could yet take a view on whether it can do so without a clear understanding, at least in the Commons, that the decision has been made. Although Ms Miller seems to accept that it has been made, others may not.

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