Authored By: Fahmida Hoque
BRAC University
Case Citation and Basic Information
R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, Supreme Court of the United Kingdom, 24 January 2017, 11 Justices Bench (including Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge)
Introduction
Miller I is a landmark constitutional law case in England and Wales which has had implications for constitutional law in Scotland as well, particularly after the outcome of Miller II (R (Miller) v Secretary of State for Exiting the European Union [2018] UKSC 26)[1]. The court decided that the executive cannot use its powers to by-pass Parliamentary Rights that were granted under the European Communities Act 1972 to create domestic legislation or pull out of an Inter-Governmental Agreement. In determining this issue, Miller I defined and confirmed the relationship between domestic law and international law as they relate to withdrawal from the EU, thereby confirming the supremacy of Parliament in English Law. As a result, Miller I has set an important precedent for constitutional law and provided a method through which the people can hold their governments accountable.
Facts
The Divisional Court decided in favour of Miller and argued that the Government was not in a position to invoke Article 50 without the approval of the parliament. The Supreme Court heard the Government’s appeal of this decision.
The dispute was between Gina Miller and Deir dos Santos who were the Respondents and the Secretary of State for Exiting the European Union who represented the Government and the political and legal impact of the 2016 United Kingdom referendum on whether to join the European Union or not. On June 23, 2016, the UK conducted a national referendum on whether to remain in the European Union or not. 51.9% of voters chose to leave. Prime Minister Theresa May and other members of Government indicated that they would officially inform the European Council of the fact that the UK was in the process of leaving. Under Article 50 of the Treaty on European Union, a Member State must formally announce its intention to leave in order to start the two-year exit process. The Government argued in favour of using Royal Prerogative powers, which are executive powers that ministers can use to sign or withdraw from international treaties without having to get permission from Parliament first.
However, Gina Miller and other claimants filed a judicial review against the Secretary of State for Exiting the European Union. They argued that triggering Article 50 would mean that the UK would have to leave the EU and would remove rights granted to people under the European Communities Act 1972 (ECA). The claimants based their case on the idea of Parliamentary Sovereignty, which says that the executive can’t use prerogative powers to change or ignore laws made by Parliament. Additionally, people from Scotland, Wales and Northern Ireland brought up issues related to devolution, especially whether the Sewel Convention required the Government to get the approval of devolved legislatures before starting the withdrawal process. The High Court was the first to decide the case, and it ruled against the Government. In December 2016, all eleven Justices of the Supreme Court heard the case again after the Government appealed.
Issues
Issue 1: Whether the Government can use Royal Prerogative powers to apply Article 50 of the Treaty on European Union without getting permission from Parliament first?
Issue 2: Whether the European Communities Act 1972 allows withdrawal from the European Union without further legislation?
Issue 3: Whether the consent of devolved legislatures is legally required before triggering Article 50 under the Sewel Convention?
Arguments
Appellant’s (Government’s) Arguments
In the Supreme Court appeal, the Appellant, the Secretary of State (the UK Government), argued that the executive has the authority to manage international treaties under Royal Prerogative powers. The Government used the conduit pipe argument, claiming that ECA 1972 merely served as a means for the law of the EU to flow into domestic law and did not itself create rights. Therefore, according to this argument, the rights were dependent upon the membership in the EU, and when the government opted out of the treaties, there was nothing more to be done since the pipe would have stopped working anyway.
The Government claimed that making and withdrawing from treaties fall within prerogative powers which had not been affected by any statute with regard to the EU. Another argument was the dualism of the UK Constitution. The Government asserted that the trigger to Article 50 is an international act which does not change the domestic law until a future statute brings about this change. Additionally, the Government pointed to the European Union Referendum Act 2015 and the Leave vote as a democratic mandate to proceed. On devolution, they argued that foreign affairs are a reserved matter and that the Sewel Convention is political, not legally enforceable.
Respondent’s (Miller’s) Arguments
The Respondent, Gina Miller, argued that the Royal Prerogative powers could not be used to negate or override any statutes passed by Parliament. She relied on the principle of Parliamentary Sovereignty, asserting that only Parliament has the authority to alter domestic law or remove any statutory rights. According to Ms. Miller, the trigger of Article 50 would result in the removal of rights guaranteed by the ECA 1972 and hence would require approval from Parliament.
She rejected the Government’s conduit pipe argument by stating that the ECA had made EU law a direct source of domestic law, and the rights created under it, were statutory in nature. The principle of “statute beats prerogative” was highlighted by her lawyers in the case. According to her, Article 50 needed to be triggered as per the UK constitutional requirement. Moreover, Ms. Miller asserted that unilateral actions by the executive would contravene the doctrine of separation of powers. As far as devolution is concerned, the Sewel convention may have been formed but still, it does not legally permit the executive to bypass Parliament.
Court’s Reasoning and Analysis
In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5[2], the latter principle that prevails in the UK constitution; any executive decision affecting domestic legislation can be made only with Parliamentary authorization. The Supreme Court interpreted, the ECA 1972 can be viewed as constitutional legislation that had introduced the EU legislation as a separate and supreme source of the domestic law. The majority held that Parliamentary sovereignty is the central principle of the UK constitution, meaning that the executive cannot change domestic law or remove statutory rights without Parliament’s approval.
The Court opposed the Government that Article 50 was initiated on the basis of the international act. It indicated that although the notification occurs at the international level, the effects of it would be felt in local law. By invoking Article 50, it results in leaving the EU and the deprivation of rights that were created by ECA. Therefore, such a major constitutional change needed a new Act of Parliament. In the conduit pipe argument, most of the judges concurred that the ECA had the effect of making EU law domestic law. Nevertheless, they emphasized the fact that this framework was created by Parliament. Thus, only Parliament could allow its removal. The Court determined that the executive is not allowed to subvert the purpose of a statute by its powers. On devolution, the Court was in agreement that the Sewel Convention was a political agreement and not a legally binding one. Although it recognises that Parliament will not normally legislate about devolved matters without consent, this does not give rise to any legal obligations that can be enforced by the court. The Court also noted that the UK constitution still reserves the foreign affairs and the treaty making issues. The Court also indicated that the referendum of 2016 was advisory. Because of the lack of legal implications in the EU Referendum Act 2015[3], the decision will have no authority to divert any constitutional prerequisites or any necessity of parliamentary approval. Dissenting judges considered that the ECA would not be repealed by the withdrawal of the UK and that it would only alter its application by the UK leaving the EU treaties. They thought that the executive was not overreaching Parliament but was employing its powers on foreign affairs. However, the majority’s approach was rights and constitutional oriented. They insisted any removal of statutory rights or fundamental constitutional changes must be approved by Parliament.
Judgment
The Supreme Court decided by a majority of 8 to 3 that the use of executive prerogative powers to invoke article 50 could not be made to initiate EU withdrawal and that an Act of Parliament had to be enacted to do so.
Ratio Decidendi
The ratio of the case held that since the ECA 1972 conferred domestic rights, the executive cannot frustrate or cancel such rights by means of prerogative power except through primary legislation.
Critical Analysis
The judgment is one of the most important constitutional decisions in British history. It clarified the limitations of the Royal Prerogative under Parliamentary Sovereignty and settled the uncertainty about whether the Executive could use treaty-making powers to change domestic legal rights. By ruling that the ECA 1972 acted as a conduit for EU law into the UK, the Court established that the Executive cannot use prerogative powers to eliminate Parliament passed laws. This reintroduced the principle that the legislation should be superior and constitutional changes require direct consent from the legislature. The implementation of the decision was immediate. It forced the Government to suspend its plans to withdraw and present the EU (Notification of Withdrawal)[4] Bill, which said that the Brexit process would need to be debated and subjected to scrutiny by parliament. In addition to political will, the case affected the interpretation of the constitutional statutes by the courts. The discretion of the Court on devolution was however ended where the Sewel Convention was found to be a political rather than a legal rule. It made clear that devolved administrations have a political voice, but can not find a legal veto as a defense against big changes in constitutions. This has been criticized by some scholars as democratic deficit in the union of the UK. An analysis of the judgment shows logical and controversial loopholes. The logic of the majority is sound in ensuring the Rule of Law, which does not allow the Executive to override Parliament on statutory rights. The Court endorsed the pecking order of laws by considering the 1972 Act as a constitutional pillar. Nevertheless, the judges who disagreed with this, most notably, Lord Reed, felt that the ECA only applied as long as the UK remained a member of the EU treaties and that withdrawal would not override the ECA but simply change its application. In this view, the majority could have been a hardliner and intervened with the executive role in foreign affairs. Professor Mark Elliott labeled the judgment as a landmark because it identifies the European Communities Act 1972[5] as a constitutional statute. Professor Alison Young claimed that the case favored Parliament but undermined the constitutional role of devolved institutions. The court was particularly more wary of Scotland, Wales and Northern Ireland. Young indicated that by ruling that the Sewel Convention is merely a political rule, the Court left the devolved nations without a means of vetoing important amendments to the constitution.
Conclusion
Despite the criticisms, the judgment stands as a defense that only Parliament can change the law of the land, suggesting a check and balance on executive power. The case highlighted that ministerial authority over international treaties cannot be used to eliminate the legislature or rewrite the law of the land without statutory consent. This set the power of Parliamentary Sovereignty as the constitutional principle of the UK. The Executive is still submissive to the laws enacted by Parliament even in high level foreign policy decisions such as Brexit. Although the ruling helped to clear up the mechanism of quitting the EU, it also indicated that the Sewel Convention on devolution was of a legally non-binding character. This decision leaves room for possible future conflict between the UK government and devolved nations.
Bibliography
Table of Cases
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61
Table of Legislation
European Communities Act 1972
European Union (Notification of Withdrawal) Act 2017
European Union Referendum Act 2015
[1] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61.
[2] Miller [2017] UKSC 5, [50].
[3] European Union Referendum Act 2015.
[4] European Union (Notification of Withdrawal) Act 2017.
[5] European Communities Act 1972.
