Miller: Issues on Appeal
Miller: Issues on Appeal
BPTC Lecturer, Anthony Kennedy, looks at the issues which are likely to face the Supreme Court when all 11 Justices determine the outcome of the appeal in R (on the application of Miller and another) v Secretary of State for Exiting the European Union.
On Monday 5 December, the Supreme Court will hear the appeal from the Divisional Court’s ruling in R (on the application of Miller and another) v Secretary of State for Exiting the European Union, reported at:  EWHC 2768 (Admin). For a summary of the facts, and some analysis of the potential practical consequences of the Divisional Court’s judgment, please see: http://blog.bpp.com/law/r-miller-speedbump-or-roadblock/. The aim of this present blogpost is to summarise the issues with which the Supreme Court will or may have to grapple when deciding whether or not to uphold the Divisional Court’s ruling.
Before turning to those issues, however, it is necessary, and appropriate, to set out the terms of the declaration which Divisional Court made. In terms, it held that: “that the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the [Treaty on European Union (hereafter, “TEU”)] for the United Kingdom to withdraw from the European Union” (see paragraph ). In ruling thus, the Divisional Court gave a legal answer to the legal, and sole, question it was asked to answer. It is worth restating that the granting of such declaratory relief was within the scope of the Divisional Court’s powers; the question itself was an entirely appropriate (legal) one for the Lord Chief Justice, the Master of the Rolls and Sales LJ to answer. The Supreme Court may well, in its judgment, make plain (once again) this fact, especially in the face of the media furore which attended the handing down of the Divisional Court’s ruling.
In reaching its decision, it is likely that the Supreme Court will have to decide some or all of the following issues:
- A) Whether the case should be referred to the CJEU
In the Divisional Court, both sides agreed that a “notice under Article 50(2) of the TEU cannot be withdrawn, once it is given”. Such a position derives some support from the comments of Maguire J, in the Northern Irish High Court, giving judgment in In the Matter of an application by Raymond McCord for leave to apply for judicial review  NIQB 85, handed down while the judgment of the Divisional Court in Miller was being prepared (it is, of course, worth noting that the Northern Irish High Court came to a different conclusion than its English counterpart but the question asked of it was not the same: the Northern Irish High Court was asked whether the Northern Ireland Act 1998, not the European Communities Act 1972 (hereafter, “ECA 1972”) had chased the Crown’s prerogative power from the field). There, Maguire J stated: “It appears to the court that a feature of the arrangements is that once notification by the withdrawing State is given, save for some exceptional circumstances, which is not expressly provided for in the provisions, the parties, the withdrawing State and the Union are on a set course which leads to the Treaties ceasing to apply the withdrawing State” (see paragraph ).
It is not difficult to see why both sides took this approach. For the Government, contesting the meaning of Article 50 TEU would have increased the chances of an English Court making a reference to the Court of Justice of the European Union (CJEU), thereby prolonging an already drawn out affair. In a similar manner, Ms. Miller et al. appreciated (and must be taken to appreciate still) that, if a notice given under Article 50 can be withdrawn, such that a Member State may start but refuse to finish the process of exiting the Union, an argument based on the concrete impact of such a notice upon (domestic or otherwise) rights (as to which, see further below) would be much harder to substantiate.
At this juncture, it is appropriate to set out, so far as relevant, what Article 50 TEU provides. Hence:
“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”
There are, it appears, two reasons why it might be argued that Article 50 TEU should not be interpreted in the manner agreed upon by the parties when arguing before the Divisional Court. Of course, where there is a need to interpret an EU Treaty or, put another way, a need to understand what a provision of said Treaty means, a Member State Court should refer the matter to the CJEU, which is the supreme arbiter of matters of EU law. The headlines carrying the message that the Supreme Court of the United Kingdom had, effectively, asked the CJEU to determine how the UK should leave the EU “club” would be a sight to behold, no doubt!
The first reason adverted to in the previous paragraph is that, simply put, there is a more than credible argument that the notification mentioned in Article 50(2) may, in fact, be withdrawn at any point during the two year period. This proposition has been scrutinised by Professor Craig (‘Miller: Winning Battles and Losing Wars’ (OxHRH Blog)) and by Professor Feldman (‘Brexit, the Royal Prerogative, and Parliamentary Sovereignty’ (available at: http://ukconstitutionallaw.org)). It may derive further strength from the comments of Lord Kerr of Kinlochard (not to be confused with the Justice of the Supreme Court of the same name who will form part of the judicial panel charged with hearing the appeal), a Scottish cross-bench peer, who had a hand in drafting the provision.
It is hardly surprising, given the consensus which existed between the parties in the Divisional Court, that the judges there did not consider the correct interpretation of Article 50 in any great depth. However, taking account of the arguments set out in the preceding paragraph, and having regard to Article 68 of the Vienna Convention on the Interpretation of Treaties (“A notification or instrument may be revoked at any time before it takes effect”), one can make a compelling argument as to why the Supreme Court should refer the matter to the CJEU. However, a compelling case for “should refer” does not guarantee that the Supreme Court “will refer” the matter to the CJEU; much depends on how brave, or brazen, the Supreme Court wishes to be.
The second reason is, with respect, more difficult to support. Dr Lang (‘The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer’ (available at: http://ukconstitutionallaw.org)) has argued that the words “in accordance with its own constitutional arrangements” (which appear in Article 50(1) TEU) are also unclear and so should also prompt the Supreme Court to refer Miller to the CJEU. This is difficult to maintain in light of the Court of Appeal’s ruling in Shindler and another v Chancellor of the Duchy of Lancaster and another  EWCA Civ 469. There, Lord Dyson MR (as he then was), with whom the other members of the court agreed, stated that: “By Article 50(1) TEU, EU law has expressly provided an area where member states may adopt their own requirements” (paragraph , relying on the judgment of the German Constitutional Court in In re Ratification of the Treaty of Lisbon 3 CMLR 13, paragraphs  and , cited by Lord Dyson at paragraphs  and ). In the face of this interpretation, and confronted by the, ex facie, clear words of Article 50(1) itself, it is submitted that the Supreme Court will, in all likelihood, not refer Miller to the CJEU solely on this basis.
- B) International or Domestic Rights?
Under this heading may be grouped two separate but related questions, both of which the Supreme Court will have to answer. The first is this: what is the effect of a Member State’s giving notice of its decision to withdraw from the Union? The answer to this question is directly related to the answer to the question identified at A) above; it exposes a difference of opinion between the English Divisional Court and the High Court of Northern Ireland.
In the latter case, Maguire J drew a distinction between “what occurs upon the triggering of Article 50(2) and what may occur thereafter” (paragraph ). In short, the Northern Irish High Court held that the notification itself does not alter the law of the United Kingdom; it only starts a process which will probably lead to changes in that law (ibid). In short, because on the day after the notice has been given, “the law will in fact be the same as it was the day before it was given” (paragraph ), the court thought it “inapt for the applicants to talk in terms of notification changing the rights of individuals” (). By contrast, and despite the common conclusion that notification under Article 50(1) TEU, once given, was irrevocable, the English Divisional Court drew no such distinction. Indeed, for the English Divisional Court, it appeared that, given the irrevocability of the notice, the notice itself would have (or maybe even did have) an impact on the rights of citizens (hence why it was necessary to consider which organ of state – the executive government or the legislature – could begin the process of withdrawal by issuing the relevant notice).
The second question is whether the rights which would potentially be affected by the Crown’s use of the prerogative powers are domestic or international rights. The Divisional Court identified three different categories of rights (at paragraphs  – ): a) those capable of replication in the law of the United Kingdom; b) those enjoyed in other Member States of the EU; and c) those which could not be replicated in UK law. The Divisional Court concluded that:
- As to those rights capable of replication in the law of the UK, the European Communities Act 1972 is the principal legislation under which these rights are given effect in domestic law of the United Kingdom. Withdrawal from the Union, brought about by the Crown’s exercise of its prerogative powers, would deprive domestic law rights created by the ECA 1972 of effect (paragraph ); and
- As to those rights enjoyed in other Member States of the EU, the prohibition against impediments to the exercise of these rights is part of EU law with direct applicability in the domestic law of the UK (paragraph ). In response to the Secretary of State’s contention that the main content of such rights is not the product of the ECA 1972, but rather the product of the operation of EU law in combination with the domestic law of the Member State, the Divisional Court held: “the reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the courts of other Member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the [right enjoyed by British citizens and companies in relation to activities in other Member States] which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972” (paragraph ).
John Finnis (‘Terminating Treaty-based UK Rights’, (available at https://ukconstitutionallaw.org)) has, however, argued that “rights acquired by virtue of section 2(1) ECA are not statutory rights enacted by Parliament. They are rights under the treaty law we call EU law, as it stands “from time to time”. They are thus subjected to alteration by decisions made in the international realm by EU or EU-related bodies and processes, in which the Crown participates by exercise of its prerogative, for the most part without restraint or pre-authorisation by Parliament, let alone by statute. So there are two necessary conditions for the existence, effect and operation of these treaty-based UK rights as rights – yes, “statutory rights” – in UK law. 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”.
This is a view which has gained some traction amongst commentators (see the view put forward by Elliott and Hooper: ‘Critical reflections on the High Court’s judgment in (Miller) v Secretary of State for Exiting the European Union’). The question for the Supreme Court, effectively, is whether the rights conferred on citizens of the UK, by virtue of the UK’s membership of the Union, exist on the domestic or international plane. Van Gend en Loos  CMLR 105 will doubtless be reviewed at some length, once again.
- C) The proper approach to the construction of the ECA 1972
The answer to this question informs the answer to the question set out at D) below (i.e. whether the ECA 1972 covers the ground previously occupied by the prerogative so as to govern the use of the prerogative hereafter, see: De Keyser’s Royal Hotel  AC 508. The Divisional Court began its construction of the ECA 1972 from the position that it was a constitutional statute (for which proposition, see: Thoburn v Sunderland City Council  QB 151 (DC), per Laws LJ). As such, this was something that a court interpreting the ECA 1972 should consider, given that interpretation must be done “having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislating in the terms that it did” (paragraph ). From this, the Divisional Court was able to say that, in contending that the onus was on the claimants to point to express language in the statute removing the Crown’s prerogative power, “the Secretary of State’s submission is flawed at [a] basic level” (paragraph ).
If this is correct, one can draw from it the proposition that, wherever a “constitutional statute” is in play (which cannot be repealed save by clear words contained in or necessary implication derived from another statute) and such statute seeks to cover the same territory previously occupied by the prerogative power, that prerogative power may only thereafter be exercised by virtue of the clearest words of Parliament or by necessary implication therefrom. As such, constitutional statutes themselves, where they dispute territory with the prerogative power, impose an even more stringent exercise upon the exercise of the same.
That may not be problematic, so long as one can be sure that this was what Parliament intended. However, the question of how far one may derive Parliament’s intention from the fact that a statute has been designated as “constitutional” by the “common law” (as Laws LJ said in Thoburn, at paragraph ) is an open one. As Elliott and Hooper have written: “the common law’s designation of a statute as ‘constitutional’ does not tell us anything whatever about the legislative intention, because that designation is in the first place a matter of common law” (emphasis in the original). In those circumstances, relying on such designation as a means of identifying the “profound effects which Parliament intended to produce in domestic law by enactment of the ECA, which has led to its identification as a statute of special significance” is made more difficult.
As such, whether, and to what extent, the ECA 1972’s designation as a “constitutional statute” may allow a court to divine Parliament’s intention is a matter which the Supreme Court will have to determine.
- D) The continued exercise of the prerogative
In Miller, the Divisional Court (at paragraph ) concluded (for reasons fleshed out in paragraph ), that with “the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence EU law rights introduced into domestic law depend … and on whose continued existence the wider rights of British citizens [capable of enjoyment in other EU Member States] also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 TEU”.
Each of the factors relied upon by the Divisional Court (at paragraph ) has been critiqued by Professor Feldman (op. cit.). He concludes that, if prerogative powers may be exercised in such a fashion as to change domestic law and affect rights which people have in domestic law, then the ECA 1972 does not change that position (presupposing, of course, that the ECA 1972 contains domestic, as opposed to international, rights – see B) above).
That the prerogative power can be used to alter domestic rights is made plain by the decision in Council of Civil Service Unions v Minister for the Civil Service  AC 374. Before Mrs Thatcher’s Order, workers at GCHQ had the right to join a Trade Union. After the Order, they did not. The House of Lords did not cast doubt upon the legitimacy of the change, such change being carried into effect through the exercise of the prerogative.
This, then, means that the Supreme Court will have to consider at some length the proper interpretation of the ECA 1972, and, specifically, whether it has totally removed the prerogative from the field. That its mere enactment has not had this effect is made clear by the decision of the Divisional Court in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg  QB 552. However, at paragraph , the Divisional Court in Miller distinguished Rees-Mogg on the basis that the Protocol on Social Policy at issue in that case did not “alter or affect” domestic law and, in any event, purported to extend, not remove, EU rights. That may be true, but there are still difficulties with the grounds of distinction, given that Rees-Mogg supports the proposition that the Crown may still, in spite of the ECA 1972, “alter [a word which can mean remove from] or add to the EEC Treaty”. It is arguable that, if a) the Crown has the prerogative power to “alter” (so construed) an EU Treaty – i.e. that which creates rights – and b) the Crown can diminish domestic rights held by the individual through the exercise of the prerogative (CCSU), then Rees-Mogg (although obviously not binding on the Supreme Court) already provides the answer to the question asked of the Divisional Court in Miller.
The issues which the Supreme Court has to determine when it hears the appeal in Miller are very difficult. The case may well be one of the hardest, and is certainly one of the most important, which the Supreme Court has ever heard. Even if the practical ramifications (explored in my previous blogpost) of the judgment turn out to be somewhat minor in comparison with the impact on UK constitutional theory, that should not be seen as a reason to ignore the jurisprudential reasoning, much less the result. Ultimately, the Supreme Court’s determination of both the issues listed above, and such others as may arise in the course of argument, may well depend on the approach it takes to constitutional adjudication (as to which, see: Alison Young: ‘R (Miller) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality?’ (available at: https://ukconstitutionallaw.org). The approach of the Supreme Court, and the outcome it reaches, will tell us whether the OED 2017 can define “Brexit” or whether the wait, and the saga, must continue awhile yet.
Anthony Kennedy is a lecturer on our BPTC programme. If you are interested in becoming a barrister visit our website to find out more information.