R (Miller) v Secretary of State for Exiting the European Union: A Source of Difficulty

BPTC Lecturer, Anthony Kennedy, reviews the decision of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. The author would like to express his thanks to colleagues, Noemi Byrd and Steve Wells for the helpful conversations he has had with them while writing this piece. All errors remain the author’s own.

Introduction

A week or so ago, the Supreme Court handed down its much anticipated judgment in R (Miller) v Secretary of State for Exiting the European Union[1]. The Supreme Court, by a majority of 8-3, dismissed the Secretary of State’s appeal from the ruling of the Divisional Court[2]. In short, the majority held that: “in light of the terms and effect of the [European Communities Act 1972 (“ECA 1972”)] … the prerogative could not be invoked by ministers to justify giving notice[3]: ministers require the authority of primary legislation before they can take that course”.

At its heart, the judgment of the majority and of the principal dissentient, Lord Reed (with whom Lords Carnwath and Hughes agreed) demonstrate a fundamental difference of view as to the correct approach to take to the interpretation of (constitutional) statutes. The exact effect of that divergence, vis-à-vis the correct interpretation of the ECA 1972, is likely to be of minimal consequence in the future. That is, of course, because the court in Miller had to confront legislation already heading to the scrapheap[4]; the Justices were not required to consider a statute expected to remain in force for years to come.

That said, set in a broader constitutional context, the divergence between the majority and the minority may be of extreme importance. The majority’s judgment recognises explicitly[5] the need for “major change to UK constitutional arrangements” to be effected by Parliamentary legislation. In fact, one might well argue that this is the very edifice upon which the majority judgment is built: it certainly makes its presence felt throughout. By contrast, Lord Reed focuses more adroitly on the specific words which one finds in the ECA 1972 and, in so doing, reaches the conclusion that ministers, acting alone and without further reference to Parliament, may give notice pursuant to Article 50(1) TEU.

The judgments of the majority and Lord Reed display all of the traditional difficulties associated with statutory interpretation; each manifests a different approach to the exercise, approaches which first year undergraduates come to learn about when exploring constitutional law for the first time. Perhaps that was always bound to happen. Yet, for the reasons which are more fully set out below, reading the judgments side by side is a little like trying to follow a discussion or argument between those who have two very different world views: starting from different premises is likely to sow perpetual discord and disagreement[6].

The majority’s judgment, as described in more detail below, appears to be based on two distinct themes. The first, which will be identified below as the “Sources Argument” is that the ECA 1972 constitutes EU law as a direct source of UK law[7]. The second, which will be identified below as the “Fundamental Constitutional Principle Argument”, asserts that it is a fundamental constitutional principle that far-reaching change to UK constitutional arrangements should be brought about by Parliament[8]. Lord Reed’s dissent disagrees with the Sources Argument and does not engage with the conclusions which are drawn from Fundamental Constitutional Argument. Despite their starting points being very different, or perhaps because of that difference, it is respectfully submitted that Lord Reed’s judgment is the more comprehensive[9], at least with respect to the Sources Argument (upon which it engages and contradicts the majority’s reasoning far more so than it is engaged and critiqued in turn[10]). The legitimacy of the Fundamental Constitutional Principle Argument is more difficult, as will be seen below.

 

Structure

The matters at issue in Miller are complex; the judgments are dense. Therefore, in an attempt to facilitate greater transparency when dealing with these difficult issues, the remainder of this piece is structured as follows: Section 1 sets out the legislative background to the case and the essential choice with which the Supreme Court was confronted; Section 2 summarises the reasoning of the majority; Section 3 takes account of the judgment of Lord Reed and interrogates the conclusions reached by the majority; and Section 4 considers the practical effect of the majority’s judgment for the UK constitution going forward.

 

Section 1: the legislative background

This section can be taken quickly: everyone with even a passing interest in these matters should be aware of the relevant provisions of the ECA 1972. By section 2(1) of the ECA, it is provided that:

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties[11], and all such remedies and procedures from time to time provided for or by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly, and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.

This is not, as Lord Reed freely admitted[12], an easy provision to construe. That said, its construction proved to be vital for both the majority and minority judgments in Miller itself.

Secondly, one needs to keep in mind the wording of Article 50 TEU, which allows a Member State of the Union to withdraw from that polity. In full, Article 50 provides:

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

 

  1. 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.

 

  1. 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.”

 

The cases before the Supreme Court turned on the correct interpretation to be given to the words “constitutional requirements” contained in Article 50(1) TEU[13]. The TEU did not, and could not, determine the relevant “constitutional requirements” which had to be completed before the United Kingdom could hand back its membership of the European Union and plough a lone furrow once again. In short, the question whether, as part of those “constitutional requirements”, the United Kingdom Government could simply give notice of withdrawal or whether, first, the Government had to obtain the consent of Parliament to give that notice, had to be determined by English law.

It was against that background that the Supreme Court turned its attention to the interaction of the twin principles (of English law) which lay at the heart of the matter. One cannot really improve upon the formulation of Lord Hughes in this regard. His Lordship[14] stated as follows:

“At the risk of over-simplifying[15], the main question centres on two very well understood constitutional rules, which in this case apparently point in opposite directions. They are these:

Rule 1

The executive (government) cannot change law made by Act of Parliament, nor the common law;

And

Rule 2

The making and unmaking of treaties is a matter of foreign relations within the competence of the government”.

In the end, the majority determined that Rule 1 (so identified) applied at the expense of Rule 2 (which Rule remained true), such that there had (and has) to be another Act of Parliament to authorise service of notice to leave the EU. In his dissent, Lord Reed gave effect to the view that Rule 2 applied at the expense of Rule 1 (which Rule remained true), such that the ECA 1972, couched in terms which give legal effect to the obligations and rules which arise under the Treaties, was not changed but only ceased to operate, such that an Act of Parliament was not first required to authorise service of the notice leading to the United Kingdom’s cessation from the EU.

 

Section 2: the reasoning of the majority

While not expressed as such, the foundation stone of the majority’s judgment was the Fundamental Constitutional Principle Argument. In the majority’s own words, this meant that: “major change to UK constitutional arrangements can[not] be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation”[16]. However, in order to understand properly how that proposition underpinned the majority view, and how it interacted with the Sources Argument, one needs to set out the majority’s reasoning in stages.

Having summarised the arguments of the parties[17], the majority began by explaining[18] the relevant constitutional principles which applied in the case. They began with the uncontroversial proposition that “it is a fundamental principle of the UK constitution that, unless primary legislation permits it, the Royal prerogative does not enable ministers to change statute law or common law … Exercise of ministers’ prerogative powers must therefore be consistent both with the common law as laid down by the courts and with statutes enacted by Parliament”[19]. They then determined[20] that the most significant area in which ministers exercise the Royal prerogative is in the conduct of the United Kingdom’s foreign affairs, including the making of treaties. While acknowledging the lack of reported authority on the power to terminate or withdraw from treaties, the majority accepted that as a matter of both logic and practical necessity, the Government could “negotiate … breach, repudiate or terminate a treaty”[21].

From there, the majority turned their attention to the “status and character of the ECA 1972”. Setting out the Sources Argument, which was itself dependent on choosing to take a “fundamental” and “more realistic” approach[22] to the statute, the majority held that the ECA 1972 “authorises a dynamic process by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law but actually takes precedence over all domestic sources of UK law, including statutes”[23]. Accordingly, “so long as the [ECA 1972] remains in force, the EU Treaties, EU legislation and the interpretations placed on these instruments by the Court of Justice are direct sources of UK law”[24].

Having so established that EU law became a direct source of UK law upon the enactment of the ECA 1972, the majority then went on to repeat the Divisional Court’s classification of the rights enjoyed by UK residents through EU law, which rights would be affected upon the United Kingdom’s withdrawal from the EU. It is worth remembering, at this juncture, that it was common ground between the parties that notice could not be given in qualified or conditional terms and that, once given, it could not be withdrawn[25]. As such, the claimant submitted that, when ministers give notice, they will be “pulling… the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”[26]. It is implicit in the judgment of the majority that this contention must have been accepted by them, thereby eliding together the point in time at which notice is given and the rights are lost (the latter being the inevitable consequence of the former)[27].

From this point onwards, the nub of the majority’s reasoning[28] (read in light of the foregoing) may be summarised as a series of propositions, set out as follows:

  1. The ambit of rights and remedies incorporated into domestic law through section 2 of the ECA 1972 varies with the United Kingdom’s obligations from time to time under the EU Treaties[29];

 

  1. Parliament cannot have intended section 2 should continue to import the variable content of EU law into domestic law after the United Kingdom had ceased to be bound by the EU Treaties[30];

 

  1. However, neither proposition 1 nor 2 above means that the ECA 1972 either contemplates or accommodates the abrogation of EU law upon the United Kingdom’s withdrawal from the EU Treaties by prerogative act without prior Parliamentary authorisation[31];

 

  1. By contrast, by the ECA 1972, Parliament endorsed and gave effect to the United Kingdom’s membership of the European Union under the EU Treaties in a way which is inconsistent with the future exercise by ministers of any prerogative power to withdraw from such Treaties[32];

 

  1. There is a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through section 2 of the ECA 1972. The latter involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom[33];

 

  1. That fundamental change would manifest itself in the removal of a source of law (ie the loss of EU law as a source of law in the United Kingdom)[34]; which then allowed the Supreme Court to make the

 

  1. Fundamental Constitutional Principle Argument[35].

 

The majority then went on to analyse the legislation and events after 1972[36] but found nothing to call into question the view to which they had come (and which has been set out above).

 

 

 

Section 3: reflections on the majority’s judgment

Given the length of the judgment and the myriad points which the majority cover, it is impossible to offer reflections on all of the material contained within it. The following have been chosen because of their importance to the case overall.

 

The proper starting point

In a previous post[37], the author has stated that the Supreme Court would have to consider whether to make a reference to the Court of Justice of the European Union (CJEU) as to the proper effect of giving notice pursuant to Article 50(1) TEU. It should be clear from the above that, predictably, if disappointingly, both parties before the Supreme Court maintained their joint position that no such reference was required. The Supreme Court did not see fit to kick open this particular hornets’ nest; the feeling remains that it ought to have done.

One of the problems with adopting the approach which the majority did is that any question asked of the court must be answered while the court is partially blind as to the realities of giving notice. It might be said that the need for guesswork in this situation provides a justification for the broader interpretive approach which the majority adopted in this case[38]. However, it might equally be said that there is no need for guesswork at this stage, at least not when the Supreme Court had the means of finding out the answer within its grasp. The failure to make a reference to the CJEU must go down as a missed opportunity, though one which is perhaps understandable in the circumstances.

The answer to the question whether, say, notice, once given under Article 50(1) TEU, can then be revoked subsequently is not, however, simply an interesting academic question in its own right. It is submitted that the answer to the question helps to cast some light on the validity (or otherwise) of submissions (accepted by the majority) made by the applicants in this case.

It will be remembered that the applicants contended that the giving of notice was like “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the treaties will cease to apply”, such that the giving of notice would pre-empt the decision of Parliament on the Great Repeal Bill. The giving of notice would also (by parity of reasoning) lead to the forfeiture of domestic rights (which topic is discussed further below).

Lord Reed was plainly not convinced by this reasoning. He called it “questionable”[39]. Indeed, he went on to say that:

“The giving of notification does not in itself alter EU rights or the effect given to them in domestic law. Nor does it impinge on Parliament’s competence to enact legislation during the intervening period before the treaties cease to have effect. Parliament can enact whatever provisions it sees fit in order to address the consequences of withdrawal from the EU, including provisions designed to protect rights which are currently derived from EU law … The fact that the notification alters no law, and that Parliament retains full competence to legislate so as to protect rights before withdrawal occurs, illustrates how different this situation is from those addressed in the cases relied upon [by the applicants]”[40].

It is submitted that this is one of the instances where the judgments of the majority and the minority simply talk past each other or, which comes to the same point, start from different premises. It was easy (legally if not politically) to ensure that all the judgments, in this respect, started from the same premise. Such an outcome could have been secured by making a reference to the CJEU. Instead, the majority adopted a pragmatic approach, following the lead of the Divisional Court in this respect; Lord Reed, following the lead of the Northern Ireland High Court, concentrated on the effect of the notification per se. Both approaches can be defended. Looking literally at the effect of notification, its being given on day 1 does not, in and of itself (with all other factors being equal) mean that, on day 2, rights will have been altered/the bullet will have reached its target. That said, if it is true that, as a matter of law, the triggering of notice will have the effect that rights are removed or altered, collapsing the distinction between the time at which notice is given and the time at which those rights are taken away is, as a matter of analysis, legitimate.

The fact that both approaches can be defended does not, self-evidently, make it appropriate to proceed in the way in which the Supreme Court did in this case[41]. Knowing for certain what the effects of giving notice were would have avoided disagreement on this issue. As it was, legal purity gave way to political expediency throughout the Miller litigation: the basis on which the Supreme Court proceeded was entirely in keeping with that practice.

 

The fundamental constitutional principle

It has been argued above that the majority’s judgment rested, at least in part, on the Fundamental Constitutional Principle Argument[42]. Viewed normatively, the good sense of the conclusion that fundamental constitutional change should be made as a result of Parliamentary action, rather than the action of the Executive, seems obvious. However, there are two questions which emerge from the proposition which the Supreme Court actually laid down: a) whether there is, in fact, a “long-standing and fundamental principle” of that nature in English law and b) if there is not, whether the proposition’s merely being a proposition of “good sense” is sufficient for the court to have regard to it when construing (constitutional) statutes.

In answering the first question, it is helpful to have regard to the work of Blick and Gordon[43]. They identify a “particular long-term historical trend that has seen a recent intensification, from which a new constitutional norm[44] may be emerging” and go on to identify that norm in the following terms: “in general, statutory authority is preferable to, and constitutionally more appropriate than, prerogative authority as a basis on which to carry out actions of major importance, including those that entail significant constitutional change”.

It is true to argue, as the authors do, that Parliament has been given a greater degree of oversight over the use of the prerogative to negotiate and ratify treaties[45]. Indeed, section 20 of the Constitutional Reform and Governance Act 2010 does require, in certain situations, a minister of the Crown to lay before Parliament a treaty before it can be ratified. However, the words “in certain situations” are worthy of emphasis here. The Constitutional Reform and Governance Act 2010 contains a series of carve outs, which allow a minister, acting on behalf of the Crown, to bypass the Parliamentary ratification process[46].

Blick and Gordon also make reference to an official paper[47] written and distributed by Gordon Brown’s Government in 2007, which determined that the prerogative, as a concept, was not fit for the 21st century[48]. Of course, one might argue that the intended effects of the official paper were never realised and that prerogative powers have not been rationalised and put onto a statutory basis, such that, absent the specific situations in which the Constitutional Reform and Governance Act 2010 (which was the ultimate product of the official paper) envisages that the prerogative be curtailed, evidence for the “fundamental constitutional principle”, or at least recent evidence of its apparent growth, is a little thin on the ground. Given that the majority cite no authority to support the Fundamental Constitutional Principle Argument, their judgment might well appear, in this respect at least, to be a house built on sand[49].

At this point, it is important to consider the concept of “constitutional statutes”[50] or “constitutional instruments”[51], which concept was adverted to in the majority’s judgment itself[52]. A constitutional statute is one which either (a) conditions the legal relationship between citizen and state in some general, overarching manner or (b) enlarges or diminishes the scope of what we would now regard as fundamental rights[53]. Constitutional statutes are, by force of common law, exempt from the doctrine of implied repeal, such that only the legislature may, by express words or by words so specific that the inference of an actual determination to repeal the constitutional statute is irresistible, so repeal the specific constitutional statute in issue[54].

One might legitimately conclude, therefore, that, if a statute is designated “constitutional”, such that it is exempt from the doctrine of implied repeal, it is also, a fortiori, the case that it can be neither repealed (or, logically, have its content or purpose frustrated) as a result of the executive government acting alone. This further step in the analysis seems to vouch the existence of the norm contended for by Blick and Gordon, which norm itself is present in the Fundamental Constitutional Principle Argument deployed by the majority.

Of course, the analysis offered by Laws LJ, seemingly confirmed by Lord Neuberger and Mance[55] (who referred to it as “penetrating”) and by the majority in Miller is controversial. Proceeding on the premise that is correct, one still runs into the argument made by Elliott and Hooper[56] that the concept of “constitutional statutes” exists at common law only and that “the common law’s designation of a statute as ‘constitutional’ does not tell us anything whatever about legislative intention, because that designation is in the first place a matter of common law”.

Until the courts test the intellectual underpinning and legality of constitutional statutes (and now, given the weight of authority which seems to support their existence, that underpinning and legality may never be properly tested) it is difficult to be sure whether Elliott and Hooper are right. One might legitimately respond to the point raised by Elliott and Hooper by suggesting that the common law does not seek to designate a statute as a “constitutional statute” in the abstract: the label is not affixed to a particular statute without rhyme or reason. Rather, the designation – the labelling of a statute as “constitutional” – must be carried out according to some criterion/criteria. Laws LJ in Thoburn provided the necessary criteria (set out above). Hence, presumably, when designating a statute as “constitutional”, Laws LJ did what any future judge must also do: he looked at the relevant statute so as to determine whether the legislature, in enacting that statute, intended to regulate the relationship between citizen and state/enlarge or diminish fundamental constitutional rights in the manner set out. If this argument holds, the common law does have something useful to say about the intention of the legislature vis a vis the (designated to be) constitutional statute. Putting that last point another way, in order to designate a statute as “constitutional”, the courts must have looked for the legislature’s intention (as expressed in the wording of that statute) and must have found the legislature had the intention to effect fundamental constitutional change[57].

It is submitted that the identification of a class of “constitutional statutes”, i.e. statutes which have both the characteristics and the effects identified by Laws LJ in Thoburn, supports the existence of the “norm” identified by Blick and Gordon. Given that the norm appears to exist, the Fundamental Constitutional Principle Argument adopted by the majority in Miller in support of their broader, more realistic construction of the ECA 1972 lends that approach greater weight.

Moreover, it is arguable that Lord Reed does not pay sufficient heed to the “fundamental constitutional principle” identified by the majority. The answer to that question is, however, determined by whether one believes that judges should have recourse to principles as part of the interpretive framework used to construe statutory words is determined[58]. Instead of an appeal to principle, Lord Reed explicitly focuses on the statutory language. That he takes an approach so different to that of the majority once more might be prayed in aid to support the proposition that the two judgments may be seen to speak past each other. With that warning, the time has now come to analyse Lord Reed’s textual approach.

 

Lord Reed’s dissent

Lord Reed wasted little time in dealing with the “issue which lies at the heart of these cases”[59], namely the effect of the ECA 1972, as amended. In his view, “section 2(1) [of the ECA 1972] enables EU law to be given direct effect in our domestic law, but within a framework established by Parliament, in which Parliamentary sovereignty remains the fundamental principle”[60].

As a tool to help develop his reasoning, Lord Reed expressed the “essential structure”[61] of section 2(1) of the ECA 1972 in the following way:

“All such [members of a specified category[62]] as [satisfy a specified condition] shall be [dealt with in accordance with a specified requirement]”.

His Lordship then noted two features of that rule: (i) it is conditional in nature but (ii) it does not convey any intention that the condition will (or indeed must) be satisfied. The second point appeared to be crucial to his analysis. Focusing explicitly on the wording of section 2(1) ECA 1972 (as set out above), Lord Reed held[63] that the language of the statutory section: “demonstrates that Parliament has recognised that rights given effect under [the ECA 1872] may be added to, altered or revoked without the necessity of a further Act of Parliament”.

One notes in passing, at this point, that the word “revoked” does not appear in section 2(1) of the ECA 1972. Upon inspection, all that one finds there is what might be described as “positive language”: rights etc. shall be “recognised and available in law, and be enforced, allowed and followed accordingly”. That said, the words “from time to time” can be made to do the necessary work here[64]: rights etc. alter from time to time as a result of changes[65] to the Treaties or to the laws made under the procedures laid down in the Treaties.

Lord Reed then noted the majority’s escape route from this conclusion: the drawing of the distinction between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation and changes resulting from the withdrawal by the UK from the European Union. Looking at the statutory language, Lord Reed determined that this was a distinction without foundation. The ultimate effect of the ECA 1972 is that “alterations in the UK’s obligations under the Treaties are automatically reflected in the UK’s obligations under the Treaties result from the Treaties’ ceasing to apply to the UK or from changes to Treaties or to legislation made under the Treaties … The [ECA 1972] simply creates a scheme under which the effect given to EU law in domestic law reflects the UK’s international obligations under the Treaties, whatever they may be. There is nothing in the [ECA 1972] to suggest that Parliament’s intention to ensure an exact match depends on the reason why they might not match”[66].

Adapting the analogy of the “conduit pipe” deployed by Professor Finnis[67], Lord Reed took the view that it matters not whether water company changes the chemical composition of the water flowing through the pipe, the water company begins pumping orange juice (rather than water) through the pipe or the homeowner dismantles the pipe and refuses to be a customer of the water company ever again. Each eventuality could be dealt with in the same way, even the last: the executive (playing the role of the homeowner in this particular example) could walk away with the water pipe “without further enactment”- there is, in Lord Reed’s view, no need to obtain Parliamentary approval before doing so. By contrast, the majority accepted the proposition that changing the chemical composition of the water/pumping orange juice through the pipe may be done without more but, given the fundamental importance of picking up the water pipe and walking away, that latter act does require Parliamentary approval.

It is trite, but it is no less true for saying it expressly: the reading given by the majority and the minority to the terms of the ECA 1972 is of vital importance. Viewing the two approaches side by side, one can see that:

  1. The majority determined that the ECA 1972 constituted EU law a “direct” and “independent”[68] source of UK law (the Sources Argument, as explained above) and found that, upon withdrawal, domestic law, and the rights granted through EU law to UK residents, will change. It is on that basis that one needs to find explicit Parliamentary authority for the proposition that such rights could be taken away solely by executive action. The majority were unable to find any such authority in the ECA 1972[69]; however,

 

  1. The minority (through Lord Reed’s judgment and/or their agreement therewith) determined that the ECA 1972 did not create statutory rights, at least in the same sense as other statutes. Instead, it gave legal effect in the UK to EU law[70] for as long as the UK remains party to the Treaties. Satisfaction of that condition depended and depends on the Crown’s exercise of the prerogative powers and there was and is nothing either express or implicit in the statutory language to demonstrate that Parliament has taken away or circumscribed the Crown’s prerogative power to withdraw from the Treaties (which action will ensure that the condition which must be satisfied for EU law to operate in the United Kingdom will be brought to an end).

 

Whether the Sources Argument deployed by the majority is legitimate or not is a vexed question[71].  Based purely on the wording of the ECA 1972, Lord Reed’s textual analysis appears to be the sounder one. His explanation of how the legislation works is more cogent; it is “rather beautiful”[72]. It is, however, cogent and beautiful for as long as one looks purely at legal form and excludes the harsher reality against which the ECA 1972 falls to be construed. In a sense, then, the Sources Argument is a subsidiary argument – that is to say, an argument of marginally less importance – than the Fundamental Constitutional Principle Argument identified by the majority. If the latter holds, it provides greater justification for the conclusion to which the former tends.

It is a pity, then, that the majority do not do more to establish the Fundamental Constitutional Principle Argument or establish as a matter of law, rather than a matter of good sense, why fundamental constitutional change should be in the hands of the legislature, not (solely) the hands of the executive or whomever else. Moderating what Lord Carnwath[73] said, there is an argument that viewing the Miller litigation exclusively as a pitched battle between the executive and the legislature is a mistake; there are other constitutional principles of a “fundamental” nature, like that of the executive being accountable to Parliament for its exercise of the prerogative, which have a role to play in this particular domain. If that could have been (or indeed can be) rebutted by the point that the principle of accountability does not allow Parliament, ex post, to undo the effects of what the executive has done in the exercise of its prerogative power on the international plane[74], then surely it would have been better to express that point in the clearest possible terms. There are those who criticise constitutional adjudication for its continued appeal to amorphous and “woolly” concepts; appealing to, and concretising, pragmatic concerns about the legality of executive action would have better deflected the charges which might well now be brought against the majority judgment[75].

 

Section 4: where now?[76]

As has been stated above, the relevance of Miller, qua a decision on its own set of facts, is highly limited. To be sure, it does provide the opportunity for Parliamentarians to refuse to sanction the United Kingdom’s withdrawal[77] from the EU. In turn, that prospect raises nice political questions for individual MPs: should they, for example, vote along constituency, rather than whipped party, lines while considering the matter in Parliament. Those questions will doubtless be answered on the basis of pragmatic concerns as to how badly they wish either a) to defy their leader and/or b) to hang on to their constituency seat at the next general election. Niceties aside, it is in the highest degree unlikely that Parliament, as a whole, will withhold its permission.

As such, the question arises: what role, if any, will the judgment of the Supreme Court in Miller play in the future? There are two points which might be made here.

Fundamental constitutional change must be made by Parliament

Even in the absence of prior authority for Fundamental Constitutional Principle Argument, the Supreme Court has now seemingly determined that fundamental constitutional change must be made by Parliament, rather than anyone else. In consequence, one wonders if the Supreme Court, perhaps inadvertently, have created a rod for its own back, particularly when adjudicating on matters raised by the Human Rights Act 1998. One might well wonder how Lady Hale[78] and Lord Kerr[79], both of whom concurred in the majority judgment, could, henceforth (and if required to do so) reconcile the position that the courts should be willing to give a particular reading to, say, Article 8 of the European Convention on Human Rights and with the principle that fundamental constitutional change (which change, logically, may, as a matter of practical reality, be arrived at through the process of interpreting of “constitutional statutes”) requires Parliament to make it.

Such an argument may be shown, in time, to be vacuous: reconciliation of the position may not be necessary. Then again, the argument may be shown to have merit. Either way, taken to its logical conclusion, the judgment of the majority does afford those with the inclination to make this argument the chance to do so, cloaking that argument with the authority of the Supreme Court itself. Of course, the Supreme Court is not averse to leaving matters to Parliament but, crucially, in cases where judges may wish to be more active, the Supreme Court may have just made it harder for them to be[80].

 

The role of the prerogative

Constitutional reform in order to make the constitution better (as opposed merely to being attached to some wider political goal, e.g. leaving the European Union) is seldom a vote winner. It is therefore seldom prioritised by the executive itself. Miller may have changed that, at least as far as the prerogative is concerned. While none of the Justices of the Supreme Court in Miller appear openly hostile to the use of the prerogative (it is, after all, still a useful concept when the executive seeks to act on the international plane), there is a clear hint in the judgment that its future use will be (heavily) circumscribed: one need only look at the result in Miller to see the point.

Against this backdrop, the executive, whoever that may be, might well be minded to put onto a statutory footing the prerogative powers which are left to it, so as to avoid any dispute like this ever coming before the courts again. When one contemplates the amount of public money which has been expended on the entirety of proceedings in the Miller case, the two days of Parliamentary debate which would be required to rationalise the position with respect to the use of the prerogative looks like fairly small fry. The Constitutional Reform and Governance Act 2010 made a start in this respect; Parliament should return to the issue in order to finish the job for, as Miller proves, the executive, acting alone, cannot.

 

 

 

 

 

 

[1]               [2017] UKSC 5. The author’s previous contributions on the judgment of the Divisional Court and the issues which the Supreme Court had to determine may be found at: http://blog.bpp.com/law/r-miller-speedbump-or-roadblock/ and http://blog.bpp.com/law/20339/ respectively.

[2]               [2016] EWHC 2768 (Admin).

[3]               Pursuant to Article 50(1) of the Treaty on European Union (TEU).

[4]               See, in this regard, the resolution of the House of Commons on 7 December 2016, calling on ministers to give notice pursuant to Article 50(1) TEU by 31 March 2017 and the Government’s drafts of the Great Repeal Bill which, it is expected, will be used to repeal the ECA 1972.

[5]               At paragraph [82].

[6]               In this respect, it is worth noting the comment of Lord Hughes, at paragraph [281], that which of the parties’ arguments was correct depended “in the end on the true reading of the ECA 1972. Clearly, either reading is possible”. The fact that the majority adopted one reading as “true” and Lord Reed and his fellow dissentients adopted the other reading as “true” meant that there was little common ground on the issues of paramount importance in the case.

[7]               Paragraph [66].

[8]               Paragraph [81].

[9]               The majority judgment, at paragraph [77], labels Lord Reed’s analysis as “powerful”.

[10]             That, of course, does not make it right but it does make it more transparent and, in an area which is complex, transparency and openness is always welcome. It is for this reason that the judgment of the Divisional Court was, with respect, so welcome: it engaged fully with both the statutory wording and the relevant intention on the part of the legislator which could be derived from that wording, viewed in light of the wider constitutional principles. Of course, by and large, the majority of the Supreme Court endorsed, on occasion implicitly, the reasoning of the Divisional Court. The most important exceptions to that last statement may be found at 2017 [UKSC] 5, paragraphs [73], where the majority thought it unnecessary to consider the effect of the loss of UK citizens’ rights derived from EU law in other member states and UK residents’ rights of participation in EU institutions that could not be replicated in UK law and [89], where the majority determined that Lloyd LJ’s conclusion in R v Secretary of State for Foreign and Commonwealth Affairs, Ex p Rees Mogg [1994] QB 552, in so far as he held that ministers could exercise prerogative powers to withdraw from the EU Treaties, was wrong.

[11]             Which expression is defined in section 1(2) as, subject to any Order in Council made by Her Majesty, the “pre-accession treaties” which are then set out in that sub-section.

[12]             At paragraph [184], where His Lordship stated that section 2(1) is a “long and densely-packed provision, whose syntax is complex, and whose meaning is not immediately clear. It requires to be read with care”.

[13]             At paragraph [154], per Lord Reed.

[14]             At paragraph [277].

[15]             And it may be over-simplifying, at least if one takes account of the political factors which Lord Carnwath identified in his judgment. However, as an attempt to state the pure legal position in the case, it is submitted that Lord Hughes offers a workable and satisfactory synopsis of the applicable principles.

[16]             At paragraph [82].

[17]             At paragraphs [34] – [39].

[18]             At paragraphs [40] – [59].

[19]             Paragraph [50].

[20]             Paragraph [55].

[21]             ibid, citing JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476, per Lord Templeman. As the Supreme Court explained at paragraph [55] of the judgment, the “general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the court”. For this proposition, the court cited Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 397-398, per Lord Fraser. As the Supreme Court further explained: “This principle rests on the so-called dualist theory, which is based on the proposition that international law and domestic law operate in independent spheres. The prerogative power to make treaties depends on two related propositions. The first is that treaties between sovereign states have effect in international law and are not governed by the domestic law of any state … The second proposition is that, although they are binding on the United Kingdom in international law, treaties are not part of UK law and give rise to no legal rights or obligations in domestic law”.

[22]             Paragraph [61].

[23]             Paragraph [60].

[24]             ibid.

[25]             Such common ground being recorded in the judgment of the majority, at paragraph [26].

[26]             This submission is recorded at paragraph [36].

[27]             The same must be true of the judgment of the Divisional Court – see [3026] EWHC 2768 (Admin) at paragraph [104(3)]. That proposition, however, is not clear cut. See further below.

[28]             Found in paragraphs [74] – [93].

[29]             Paragraph [76].

[30]             Paragraph [77].

[31]             ibid.

[32]             Ibid.

[33]             Paragraph [78].

[34]             At paragraph [83] of the judgment, the majority also accepted that the conclusion could be reached by focussing on the different but related ground that changes in domestic rights acquired through (the source of) EU law would also occur. This different but related ground had been identified by the Divisional Court: see [2016] EWHC 2768 (Admin), at paragraphs [58] – [66].

[35]             Paragraph [82].

[36]             See, in this respect, paragraphs [103] – [115], which deal with events from 1973 to 2014, and paragraphs [116] – [125], which deal with European Union Referendum Act 2015 and the referendum of June 2016.

[37]             http://blog.bpp.com/law/20339/.

[38]             See Professor Alison Young’s article, “R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality?” U.K. Const. L. Blog (9 November 2016) (available at https://ukconstitutionallaw.org). There, commenting on the conclusion reached by the Divisional Court, Professor Young argued that: “If, as the parties agreed, Article 50 cannot be revoked once triggered (which is contestable and could have been contested), then there may be no other possibility of the courts being able to examine the legality of its triggering once the process has been set in place. In these circumstances, it may be better for the courts to err on the side of caution; evaluating “what if…” without balancing this against “but what if it doesn’t…” It is submitted that Professor Young’s conclusion can be adapted to justify the approach of the Supreme Court in Miller as well. How far the analysis remains valid in the light of Lord Carnwath’s judgment is discussed further below.

[39]             At paragraph [218].

[40]             In this respect, Lord Reed was adopting the approach of Maguire J in the Northern Ireland High Court (see McCord’s (Raymond) Application [2016] NIQB 85 at paragraphs [105] and [107]). Lord Carnwath also thought the analogy to bullets and guns misplaced here but for slightly different reasons: see paragraph [262].

[41]             Indeed, as anyone familiar with the jurisprudence of the CJEU knows, the fact that both approaches can be defended does not mean that the CJEU would have been bound to find that either of them were correct. The CJEU might have rejected both approaches in favour of a third, known only to itself.

[42]             Viz: “the long-standing and fundamental principle [that] far-reaching change to the UK constitutional arrangements [must not] be brought about by ministerial decision or ministerial action alone”: paragraphs [81] and [82] of the majority’s judgment.

[43]             “Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty on European Union”, The Constitutional Society Paper (2016), available at http://www.consoc.org.

[44]             For Blick and Gordon, a “norm represents an underlying constitutional value. This is to be contrasted with a convention which is referred to as an operational rule and is but one (non-statutory) means of giving expression to an underlying constitutional value”.

[45]             The evidence for which proposition can be found in sections 20 – 25 of the Constitutional Reform and Governance Act 2010.

[46]             See sections 22 and 23.

[47]             Entitled: The Governance of Britain (London, Ministry of Justice, 2007) CM 7170. Perhaps this is the appropriate point to reflect upon the rule in Pepper v Hart (so called after the eponymous case, reported at: [1993] AC 593). Given the voluminous citation of extra-statutory material in the judgments in Miller, the state and continued application of the rule is, at best, uncertain.

[48]             ibid, p.15 paragraph 14.

[49]             The reader is directed to Professor Endicott’s blog post, entitled: “A Treaty of Paramount Importance”, U.K. Const. L. Blog (26 January 2017) (available at https://ukconstitutionallaw.org/), where this view is set out.

[50]             A term coined in Thoburn v Sunderland City Council [2003] QB 151, per Laws LJ, at paragraph [62].

[51]             As it was put by Lord Neuberger and Lord Mance in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] 1 WLR 324, at paragraph [207]. In their Lordships’ view, the following may be included within the category of “constitutional instruments”: “Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list”.

[52]             See paragraph [67].

[53]             Thoburn v Sunderland City Council, paragraph [62].

[54]             ibid, paragraph [63].

[55]             Indeed, all the other members of the Supreme Court in the Buckinghamshire County Council case, including Lord Reed, agreed with the judgment of Lord Neuberger and Lord Mance.

[56]             “Critical Reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union” U.K. Const. L. Blog (7 November 2016) (available at https://ukconstitutionallaw.org/). Elliott and Hooper made the argument in the context of their critique of the Divisional Court’s judgment. If the critique suggests that the Divisional Court relied solely on the designation of the ECA 1972 as a “constitutional statute” to derive the legislature’s intention, it cannot be accepted.  The Divisional Court took great pains to derive the intention of Parliament with respect to the ECA 1972 from the specific provisions of the ECA itself. See, in this respect: [2016] EWHC 2768 (Admin) at paragraph [93].

[57]             At paragraph [60], the majority vouched the proposition that the ECA 1972 deserved to be labelled as a “constitutional statute” in the following way: “in constitutional terms, the effect of the [ECA 1972] was unprecedented”. The majority went on to make reference to the decision of the House of Lords in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603.

[58]             Those with an interest in jurisprudence may wish to consider, inter alia, “Law’s Empire”, by Ronald Dworkin and “The Concept of Law”, by HLA Hart. A legal realist might simply say that the answer depends on the approach which one believes the judge should take, the choice being between purposive and literal. On statutory interpretation more generally, see: “Bennion on Statutory Interpretation”, 6th edition, LexisNexis UK, 2013.

[59]             Paragraph [179].

[60]             Paragraph [183]. He therefore must have rejected the majority’s Sources Argument.

[61]             Paragraph [184].

[62]             Which His Lordship went on to identify, at paragraph [186] in the following terms: “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and… remedies and procedures from time to time provided for by or under the Treaties”.

[63]             At paragraph [187].

[64]             As to which, see paragraph [186].

[65]             Changes which could, in Lord Reed’s view, be made by ministers of the Crown pursuant to the Royal prerogative.

[66]             Paragraph [187]. Lord Reed, talking in terms of “reflection”, must have rejected the majority’s conclusion that the ECA 1972 institutes EU law as a source of UK law.

[67]             “Terminating Treaty-based UK Rights”, available at https://ukconstitutionallaw.org. Professor Finnis has 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. 

[68]             Though as Dindjer (“Sources of Law and Fundamental Constitutional Change”, U.K. Const. L. Blog (27 Jan 2017) (available at: https://ukconstitutionallaw.org/) argues, this is an “infelicitious description, since they also acknowledge [that] EU law’s effect in UK law is dependent on the ECA [1972]”.

[69]             The point is expressed clearly in paragraph [86] of the judgment: “the EU Treaties not only concern the international relations of the United Kingdom, they are a source of domestic law, and they are a source of domestic legal rights many of which are inextricably linked with domestic law from other sources. Accordingly, the Royal prerogative to make and unmake treaties, which operates wholly on the international plane, cannot be exercised in relation to the EU Treaties, at least in the absence of domestic sanction in appropriate statutory form. The proper analysis is that, unless the Act positively created such a power [to withdraw from the Treaties] in relation to those Treaties, it does not exist.”

[70]             Paragraph [216].

[71]             Dindjer, (op. cit.).  

[72]             Professor Endicott (op. cit.).

[73]             At paragraphs [248] and [249].

[74]             See the analysis of Professor Young (op. cit).

[75]             As to which, see Endicott (op. cit.)

[76]             One might begin this section with the words “out of the European Union”.

[77]             Which is not to make the point that “Parliament has created a right to remain in the EU” (see the judgment of Lord Reed at paragraph [221]); rather, it is inherent in the proposition that only Parliament can give permission to leave.

[78]             R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38, at paragraph [321].

[79]             ibid, paragraph [326].

[80]             And it is in those instances that the logical conclusion of the Miller judgment will really matter.

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