R (on the application of Miller) v Secretary of State for Exiting the European Union

Case Summary

Case Name: R (on the application of Miller) v Secretary of State for Exiting the European Union

Court: The Supreme Court

Judgement Date: 24^th January 2017

Citation: [2017] UKSC 5 [2018] A.C. 61.

Introduction

Claimant: Gina Miller

Defendant: Secretary of State for Exiting the European Union

Nature of the case: Constitutional Case

Procedural History

Gina Miller, along with Deir Tozetti Dos Santos, initiated legal action in the High Court, challenging the government’s use of prerogative powers[1] to trigger Article 50 of the Treaty on European Union.[2] The High Court ruled unanimously in favour of Miller and Dos Santos, holding that only Parliament had the authority to trigger Article 50. Dissatisfied with this decision, the government appealed to the UK Supreme Court, maintaining that it could use prerogative powers to invoke Article 50 without parliamentary consent.[3]

Facts of Case

The case emerged after the UK’s 2016 referendum, where majority voted to leave the European Union.[4] Following the referendum result, the Government sought to invoke Article 50 of the Treaty on European Union. Article 50 outlines the process for a member state to withdraw from the EU and triggering it would formally begin the UK’s exit. This was challenged by Gina Miller and Deir Tozetti Dos Santos as it went against the concept of parliamentary sovereignty and that the government should not be able to trigger Article 50 without Parliament’s approval.

The conflict emerged because, traditionally, the UK Government has relied on prerogative powers to handle foreign affairs, including decisions about treaties. However, the plaintiffs contended that invoking Article 50 had far-reaching domestic effects, particularly in altering UK laws and citizens’ rights. As a result, they argued that such a significant decision required the approval of Parliament. This case brought to light important issues regarding the division of authority between the executive branch and Parliament in the UK’s uncodified constitutional system.

 Legal Issue

Primary Issue: 

• The main legal question was whether the UK Government had the constitutional authority to invoke Article 50 of the Treaty on European Union, which would initiate the process for leaving the EU, without obtaining approval from Parliament or whether parliamentary consent was required.

Sub-Issues:

• Parliament’s Role in Brexit: The court considered whether the executive branch could lawfully alter domestic laws and citizens’ rights that would result from Brexit without Parliament’s involvement.
• Prerogative Powers: The court also examined the scope of the government’s prerogative powers, particularly regarding treaty-making and whether these powers extended to unilaterally withdrawing from international agreements like the EU.
• Devolved Administrations: Another issue was whether the devolved governments of Scotland, Wales, and Northern Ireland needed to be consulted or give their consent before Article 50 could be triggered, especially given the potential impact of Brexit on their legal and political frameworks.

Arguments

Appellant (Secretary of State for Exiting the European Union)

The defendant argued that the power to withdraw from international treaties, including the EU Treaty, fell within the executive’s royal prerogative, which allowed the government to manage international affairs, including initiating the UK’s exit from the EU, without needing parliamentary approval. They asserted that there was no statutory requirement for Parliament to consent to triggering Article 50 and believed that notifying the EU of the UK’s intention to leave was purely an executive function that did not require new legislation. According to this view, initiating the withdrawal process was a procedural step that did not immediately alter domestic law or statutory rights. The defendant also emphasized that triggering Article 50 was merely a preliminary action and did not bring about immediate changes to domestic law or statutory rights. They argued that any subsequent legal and policy changes resulting from Brexit would be subject to parliamentary scrutiny and approval in due course. Thus, the defendant believed that the government’s role was limited to starting the withdrawal process, with more detailed legislative changes to be addressed later. Ultimately, the Supreme Court ruled in favour of the plaintiff, determining that an act of Parliament was necessary to trigger Article 50, thereby affirming the role of Parliament in significant constitutional decisions.

Respondent (Gina Miller)

In the case concerning the UK’s withdrawal from the EU, the plaintiff argued that triggering Article 50 of the Treaty on European Union, which initiates the exit process, was a matter of profound constitutional importance that necessitated parliamentary approval. They maintained that leaving the EU would fundamentally alter the UK’s legal and constitutional landscape, and such a significant change could not be enacted solely by the executive branch. Instead, they argued that Parliament needed to authorize this action through an act to ensure democratic legitimacy and adherence to constitutional norms. The plaintiff also pointed out that EU law had been incorporated into UK law through the European Communities Act 1972, meaning that departing from the EU would directly impact statutory rights and obligations established under EU law, such as employment protections and environmental standards. They contended that the government could not use its prerogative powers to alter or remove these statutory rights without parliamentary consent. Furthermore, they emphasized that adherence to the rule of law required that government actions remain within the bounds of legal authority. The plaintiff argued that the executive’s prerogative powers were insufficient for making such a profound constitutional change, and that an act of Parliament was necessary to initiate the process of leaving the EU to ensure proper respect for legal procedures and individual rights.

Court’s Analysis

Legal Reasoning:

The court’s analysis involved key constitutional principles, most notably the doctrine of parliamentary sovereignty, which has deep roots in common law. One of the central statutory provisions in the case was the European Communities Act 1972, which had effectively incorporated EU law into UK domestic law. This act conferred certain rights upon individuals in the UK, derived from the country’s EU membership. The court examined how these rights were embedded into domestic law and the extent to which their removal would alter the legal landscape. Given that invoking Article 50 would inevitably lead to the repeal of the European Communities Act and the withdrawal of these EU-derived rights, the court determined that only Parliament could authorize such a significant legal shift.

Relevant Law

In addition, the court considered the broader constitutional framework governing the relationship between the UK and EU law. The European Communities Act 1972 had created a unique legal order in which EU law took precedence in areas governed by the EU. The act was not simply a passive conduit for foreign law but was an active and deliberate act of Parliament that integrated EU law into the UK’s domestic legal system. This reinforced the court’s conclusion that the government could not rely on prerogative powers to undo parliamentary legislation.

Interpretation

A crucial aspect of the court’s reasoning involved its interpretation of the European Communities Act 1972. The court found that this statute had conferred a wide array of rights onto individuals within the UK, ranging from employment protections to freedom of movement and trading rights. Triggering Article 50 would ultimately lead to the revocation of these rights once the UK exited the EU. Therefore, the court held that the decision to withdraw from the EU was not merely a matter of foreign relations but one that would deeply affect domestic law. In the court’s view, this impact on individual rights meant that parliamentary approval was required before the government could initiate the withdrawal process.

The government’s argument, which rested on the use of prerogative powers in the area of foreign policy, was rejected by the court. Although prerogative powers traditionally allow the executive to manage international treaties and foreign relations, the court drew a clear distinction between international actions that do not affect domestic law and those that do. In this case, withdrawing from the EU would directly alter domestic legal rights, and thus the government could not proceed without Parliament’s explicit consent. This interpretation reinforced the constitutional boundary between the executive’s foreign affairs powers and Parliament’s authority over domestic law. Ultimately, the ruling emphasized that the executive could not, by invoking foreign policy powers, undermine the rights conferred by Parliament or bypass its legislative authority.

Decision

The Supreme Court, in an 8-3 majority decision, determined that the government could not initiate the process of triggering Article 50 without first obtaining parliamentary approval through formal legislation.[5] This ruling upheld a prior decision by the High Court, which had similarly found that the government could not rely solely on prerogative powers to trigger Article 50. As a result of the ruling, the government was required to present legislation in Parliament to legally begin the process of triggering Article 50.[6] This led to the passage of the European Union (Notification of Withdrawal) Act 2017, granting the government the legal authority to initiate the Brexit process. The majority opinion highlighted the principle of parliamentary sovereignty, asserting that any changes to domestic law must involve Parliament.[7] On the other hand, the dissenting judges argued that prerogative powers could be used in this situation, as they viewed the decision to leave the EU as a matter of foreign affairs. They believed triggering Article 50 fell within the executive’s authority since it concerned international treaties rather than the modification of domestic law.[8]

The case significantly shaped the constitutional framework of the UK, emphasizing that the executive cannot bypass Parliament when making fundamental changes to domestic law. It underscored the principle that government prerogative powers have limits, especially when dealing with decisions that carry substantial legal and political implications. This ruling strengthened the role of Parliament, ensuring its involvement in decisions that directly impact the nation’s legal framework and citizens’ rights.

Significance

The decision set an important precedent in the ongoing balance of power between the executive and Parliament, particularly in relation to major constitutional shifts. It clarified that government actions that affect individual rights under domestic law cannot be carried out without parliamentary approval. This ruling reinforced the principle of parliamentary sovereignty and established clear limits on the government’s ability to act unilaterally in situations with significant domestic implications.

Subsequent Developments

Following the ruling, the government introduced and secured the passage of the European Union (Notification of Withdrawal) Act 2017, granting the legal authority to trigger Article 50 and begin the formal Brexit process. This case also paved the way for future legal challenges, including the 2019 case of R (Miller) v The Prime Minister, which addressed the government’s attempt to prorogue Parliament during the later stages of the Brexit negotiations. The Miller cases collectively highlighted the courts’ role in ensuring government accountability during the Brexit process.

Conclusion

To conclude the UK Supreme Court’s decision in R (on the application of Miller) v Secretary of State for Exiting the European Union[9] confirmed that the government could not unilaterally trigger Article 50 to initiate Brexit without parliamentary approval, highlighting the principle of parliamentary sovereignty. This landmark ruling reinforced the necessity for Parliament’s involvement in significant constitutional changes and set a precedent for future legal and political disputes. By limiting the scope of executive prerogative powers, the case underscored the importance of checks and balances within the UK’s constitutional framework, ensuring that decisions with profound impacts on domestic law and individual rights are subject to legislative scrutiny.

References

Elliott M, THE SUPREME COURT’S JUDGMENT IN MILLER: IN SEARCH OF CONSTITUTIONAL PRINCIPLE, (2017) 76 Cambridge L.J. 4-5.

Emerton P and Crawford L, “Parliament, The People and Interpreting the Law: Miller v Secretary of State for Exiting the European Union”, The University of Queensland Law Journal 35(2) (2016), 331, 331.

Ewing K, Brexit and Parliamentary Sovereignty,(2017) 80 Modern L. Rev. 711, 715.

Gonzalez L, The Miller Case and its consequences in Public Law, 2018 2

Phillipson G, A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament, (2016) 79 Modern Law Review 1064, 1067.

Philipson G, BREXIT, PREROGATIVE AND THE COURTS: WHY DID POLITICAL CONSTITUTIONALISTS SUPPORT

Phillipson G, “EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union”, Yearbook of European Law 36(1) (2017):46,47.

[1] Gavin Phillipson, “EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union”, Yearbook of European Law 36(1) (2017):46,47.

[2] López-Pardo Gonzalez, The Miller Case and its consequences in Public Law, 2018 2, 2.

[3] López-Pardo Gonzalez, The Miller Case and its consequences in Public Law, 2018 2, 2.

[4] Patrick Emerton and Lisa Burton Crawford, “Parliament, The People and Interpreting the Law: Miller v Secretary of State for Exiting the European Union”, The University of Queensland Law Journal 35(2) (2016), 331, 331.

[5] Mark Elliott, THE SUPREME COURT’S JUDGMENT IN MILLER: IN SEARCH OF CONSTITUTIONAL PRINCIPLE, (2017) 76 Cambridge L.J. 4-5.

[6] Gavin Phillipson, A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament, (2016) 79 Modern Law Review 1064, 1067.

[7] Keith Ewing, Brexit and Parliamentary Sovereignty, (2017) 80 Modern L. Rev. 711, 715.

[8] Gavin Philipson, BREXIT, PREROGATIVE AND THE COURTS: WHY DID POLITICAL CONSTITUTIONALISTS SUPPORT THE GOVERNMENT SIDE IN MILLER? (2017) The University of Queensland Law Journal, 319

[9] [2017] UKSC 5 [2018] A.C. 61.