R (Miller): Speedbump or Roadblock?
BPTC tutor Anthony Kennedy discusses the decision in R (Miller) v Secretary of State for Exiting the EU. He summarises the legal basis for the ruling and outlines the potential legal/political consequences which may follow from it
2016 may well be remembered as a landmark year, more so, perhaps, for what it took away from us, rather than what it bestowed upon us. That said, there is no denying that it has given us one particularly useful gift – the cliché: “Brexit means Brexit”. While arguments still rage about the true meaning of that particular tautology, the Divisional Court, in deciding R (Miller) v Secretary of State for Exiting the EU  EWHC 2768 (Admin) has, at least, told us that Parliament will need to trigger Article 50 of the Treaty on European Union (“TEU”) and so commence the Brexit process: the Crown cannot do it by the exercise of its own prerogative powers. Whether this ruling turns out either to be a speedbump over which the Government’s Brexit car can pass with mild discomfort or a roadblock around which it cannot move remains to be seen.
The Crucial Question
As set out below, the judgment can be interpreted in various ways; it already has been by those on either side of the (political and/or legal) debate. The objective of this post is to summarise the legal basis for the ruling and outline some of the potential legal/political consequences which may follow from it. Given that objective, both hyperbole and handwringing are out of the question.
Concentrating on the legal question which the Divisional Court was asked to answer should keep us on the right track. That question was phrased as follows: “whether, as a matter of the constitutional law of the United Kingdom, the Crown- acting through the executive government of the day – is entitled to use its prerogative powers to give notice under Article 50 [TEU] for the United Kingdom to cease to be a member of the European Union”. Crucially, the Divisional Court went on to explain that, quite properly, nothing it said “has any bearing on the question of the merits or demerits of a withdrawal by the United Kingdom from the European Union”.
The final sentence of the previous paragraph is very important indeed. Doubtless implications can be and will be drawn from the Divisional Court’s ruling; column inches will be lost to those wondering about the Government’s likely and/or best course of action from this point forward. Be that as it may, we must remember that those implications and consequences flow not from the Divisional Court’s ruling on the merits of Brexit itself or of the propriety of the Government’s avowed intention to “honour” the result of the referendum held earlier this year. Instead, such implications and consequences flow from the legal ruling delivered by the court: the above-mentioned legal question was the only one upon which the Divisional Court was asked to, and did, rule.
The Divisional Court’s Answer
As should be apparent by now, the Divisional Court ruled that the Secretary of State does not have power, pursuant to the Crown’s prerogative, to give the necessary notice by which the procedure set out in Article 50 TEU may be triggered. Thus, if the UK is to withdraw from the European Union, Parliament must take the lead.
The Divisional Court’s Reasoning
While the Divisional Court was not required to provide a definition of “Brexit”, let alone describe how such a concept might look in its finished form, it did, helpfully, confirm (at paragraphs  and ) that, once started, the process of Brexit could not be arrested thereafter. In this sense, then, Brexit really will mean Brexit when (or if?) the time comes. Having established this point, the Divisional Court then turned its attention to the target of the claimants’ challenge: the giving of notice under Article 50(2) TEU.
It is easy to guess the Divisional Court’s answer long before one reaches the end of the judgment. Doubtless, the Secretary of State knew that the game was up as soon as the Divisional Court (at  and ) relied on Laws LJ’s characterization of the European Communities Act 1972 (“ECA 1972”) as a “constitutional statute” (as to which, see: Thoburn  QB 151). Described thus, the ECA 1972 is not subject to the doctrine of implied repeal; any repeal or amendment to its provisions could only be accomplished by the use of “express language in a subsequent statute or by necessary implication from the provisions of such statute”. In other words: even if Parliament itself does not use sufficiently clear language, the ECA 1972 remains, and will continue to remain, insulated from such change. Viewed thus, the argument that the exercise of the Crown’s prerogative powers could effect such change appears all the weaker.
Cutting to the quick, the Divisional Court (at ) held that, in enacting the ECA 1972, Parliament “intended EU rights to have effect in domestic law,” which effect should not be capable of being “undone or overridden by the Crown in the exercise of its prerogative powers”. Previously (at  – 61]) the Divisional Court had identified three categories into which such rights fell: those capable of replication in the law of the UK; those enjoyed in other Member States and those which could not be replicated in UK law. Given the existence of these rights, and the existence of Parliament’s intention that they could not be dispensed with via the Crown’s use of prerogative powers, the Divisional Court held that the ECA 1972 does not reserve power to the Crown to take action on the international plane to undo such rights (and, for the avoidance of doubt, neither does the Referendum Act 2015).
The Significance of the Divisional Court’s Judgment
The Divisional Court’s judgment has much of interest to say to those who are willing to listen. For the scholar of constitutional law, the court engages with jurisprudence concerning, inter alia, the principles of parliamentary sovereignty and representative democracy. Yet, the judgment does not speak only to those learned in the law: it is of broader significance for all citizens of the United Kingdom and other EU Member States.
Perhaps what people will derive from the judgment depends very much on the perspective from which they look at it. For instance, those adopting the “purely legal perspective” might see a clear victory for the principle of parliamentary sovereignty: the Divisional Court has rejected a free-roaming application of the Crown’s prerogative powers. This was certainly the perspective which the claimants’ lawyers were adopting after the result had been revealed. Viewed in these terms, the judgment is of acute constitutional significance (it might, indeed, make us wonder about the necessity for, or correctness of, maintaining prerogative powers in 21st century Britain).
Of course, the judgment is of wider public import than that. If it were not, the Government may have taken longer than the five seconds it did to state its intention to appeal. In context, that the Government mentioned the word “appeal” almost before the Divisional Court had finished speaking indicates that this case has the potential to derail the Government’s Brexit bid (still potential, of course, because the Supreme Court’s answer may be different to that of given by the Divisional Court). Taking account of the politics of the situation produces even more chaos than the above-mentioned cliché already. Legally speaking, the Divisional Court’s judgment is a speedbump: it is the practical politicking which now will ensue that has the potential to transform it into a (parliamentary) roadblock.
Turning to such politics, Theresa May’s inclusion in her cabinet of a healthy number of remain and leave voters appeared to be sensible when she made her choice. Now, however, that mixed hue might present an unhelpful kaleidoscope, rather than a happy rainbow. This ruling, and any subsequent parliamentary vote on whether to trigger Art. 50(2) TEU, is bound to inflame again the barely cooled-passions between unhappy allies (in so doing, increasing the chances of any vote on Article 50(2) TEU being a free one). Perversely, of course, Jeremy Corbyn could come to Theresa May’s rescue: he has already declared that his party will respect the will of the electorate, as expressed in the referendum. His stock, and his command, are of spectacularly low value amongst his own MPs though, many of whom would surely prefer to give effect to the will of the electorate as expressed in a general election, rather than in a referendum.
All of this, of course, is pure speculation, which it must be given that there is no real indication of whether Brexit will be “hard” or “soft”, whatever those terms might mean. In fact, the Divisional Court’s greatest achievement, in delivering the judgment which it has, may be to encourage/force the Government to outline more comprehensively its plans for the shape and scope of Brexit. If a parliamentary vote to trigger Art. 50(2) TEU is required, it cannot be taken amid shadow and innuendo: the Government will have to set out, in the light, its Brexit plans. The Divisional Court actually may have taken away 2016’s greatest gift: soon we might know what Brexit means or, at least, how it will look.
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.