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Miller/Santos in the Supreme Court

23 February 2017

R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5

Anyone who has not been residing under a rock for the last month knows that, as predicted, the government lost in the Miller/Santos case in the Supreme Court, and that the government has already got its single page European Union (Notification of Withdrawal) Bill 2016-17 through the House of Commons without amendment. But what does the 97 page judgment say about why the government could not serve notice under article 50 of the Treaty on European Union without the consent of Parliament, are there any wider ramifications for public lawyers arising from the judgment, and what next for the progress of Brexit?

What it’s not

Firstly, it is worth making it clear that the case does not, in any way, deal with the question of whether or not the UK should leave the EU. It deals only with the question of whether the UK can give notice under article 50 of the EU Treaty without a vote being required in Parliament. As the court put it:

“It is also worth emphasising that this case has nothing to do with issues such as the wisdom of the decision to withdraw from the European Union, the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of any future relationship with the European Union. Those are all political issues which are matters for ministers and Parliament to resolve. They are not issues which are appropriate for resolution by judges, whose duty is to decide issues of law which are brought before them by individuals and entities exercising their rights of access to the courts in a democratic society.”

The general importance of the issues to be determined

The court distilled the arguments before it to two broad questions: firstly, could ministers use prerogative powers to serve notice under Article 50 of the Treaty on European Union without the consent of parliament; and secondly, were ministers required to obtain the agreement of the devolved administrations before serving such notice.

The court neatly summarised the general importance of the issues as follows:

“Some of the most important issues of law which judges have to decide concern questions relating to the constitutional arrangements of the United Kingdom. These proceedings raise such issues. As already indicated, this is not because they concern the United Kingdom’s membership of the European Union; it is because they concern (i) the extent of ministers’ power to effect changes in domestic law through exercise of the prerogative powers at the international level, and (ii) the relationship between UK government and Parliament on the one hand and the devolved legislatures and administrations of Scotland, Wales and Northern Ireland on the other.”

The High Court proceedings

An analysis of the High Court proceedings can be found here.

In summary, the majority of the Supreme Court (8/11) agreed with the analysis of the High Court, which turns, in truth, on the interpretation of the European Communities Act 1972 (the ECA).

In addition to the matters dealt with in the High Court, the Supreme Court also considered a decision of the Northern Ireland High Court which had found that there was no obligation on the government to obtain the consent of the Northern Ireland Assembly to invoke article 50.

The need for consent to trigger article 50

It was in respect of the first of the two substantive questions before the court that the court was split. (All of the sitting judges agreed on the devolution question – see below).

The majority view

Of the 11 sitting Supreme Court judges, eight (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge) issued a joint majority judgment in relation to the question of whether or not the government could issue a notice under article 50 without the consent of Parliament.

The majority outlined the scope of prerogative powers relying on Professor HWR Wade’s description from Wade on administrative law:

“The residual prerogative is now confined to such matters as summoning and dissolving Parliament, declaring war and peace, regulating the armed forces in some respects, governing certain colonial territories, making treaties (though as such they cannot affect the rights of subjects), and conferring honours. The one drastic internal power of an administrative kind is the power to intern enemy aliens in times of war.”

The majority went onto say that “a prerogative power however well-established may be curtailed or abrogated by statute… The statutory curtailment or abrogation can be by express words or, as has been more common, by necessary implication.”

Thus the main question for determination was whether the ECA limited what would otherwise be the prerogative power to withdraw from an international treaty.

The Secretary of State argued that the ECA did not only ‘copy out’ the provisions of EU law as they stood in 1972, it gave effect to “whatever may from time to time be the international obligations of the United Kingdom under or pursuant to EU Treaties.” He argued that this therefore allowed for the possibility that the UK may leave the EU, in which case there would be no such obligations on the UK.

The majority however found that “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.” It felt that the latter “involves a unilateral action by the relevant constitutional bodies which affects a fundamental change in the constitutional arrangements of the United Kingdom.” It went on to say that if the Secretary of State’s argument was correct this fundamental change would happen “irrespective of whether Parliament repeals the 1972 Act” which “would be inconsistent with the long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone. All the more so when the source in question was brought into existence by Parliament through primary legislation which gave that source an overriding supremacy in the hierarchy of domestic law sources.”

The majority also rejected the Secretary of State’s argument that because the prerogative power to make and unmake treaties can only be limited by express statutory provisions, the ECA, which does not contain an express statement to that effect, cannot limit the prerogative power in that way. The majority instead found that because the ECA is an important source of domestic law (through the European law it implements), it would take express words in the ECA indicating that the government could withdraw from the treaties, and thus remove the source of domestic law and domestic rights, which is not ordinarily possible using prerogative powers. The ECA contains no such express language.

The majority indicated that the lack of force in the Secretary of State’s arguments was demonstrated by taking the consequences of his arguments through to their natural conclusion. If the Secretary of State was correct, the government could have withdrawn from the EU Treaty at any time after the implementation of the ECA without any kind of referendum, or any other vote of Parliament of the matter. This, the majority states, would clearly not have been lawful. The Secretary of State further argued that subsequent legislation pertaining to Europe demonstrated that there was no intention to limit the government’s prerogative powers in respect of withdrawal from the EU. He pointed to the fact that subsequent legislation specifically required votes of Parliament on other aspects and that accordingly, the lack of such a requirement in relation to service of notice under article 50 was deliberate. The majority fell back on the general principles relating to prerogative powers: if there was domestic legislation on a matter prerogative powers were removed. They found that it was not possible to reverse this presumption in reliance on a lack of provisions in other legislation.

Finally, the Secretary of State argued that the traditional limits on prerogative powers should not apply to a ministerial decision authorised by a majority of members of the electorate who vote on a referendum. The majority decisively rejected this contention, pointing out that the European Union Referendum Act 2015 did not include provisions which provided that the outcome of the referendum must be acted upon (this was in contrast to the Acts which dealt with devolution in Scotland and Wales). Accordingly, the result of the referendum, whilst significant politically, had no legal consequence unless and until Parliament decided that it should have.

The minority view

Three judges of the Supreme Court (Lord Reed, Lord Carnwath and Lord Hughes) dissented on the issue of whether notice under article 50 of the EU Treaty could be given by ministers in reliance on prerogative powers. The three judges did not provide a single dissenting judgment. Accordingly, their reasoning is slightly different in each case.

Lord Reed (with whom Lord Hughes agreed) stated that he absolutely accepted the importance of Parliamentary supremacy over domestic law. However, he did not think that the principle was applicable in this case. In his view, the effect which Parliament had given to EU law in domestic law under the ECA was “inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU”. Accordingly, in his view, the ECA did not impact on the prerogative power to exit from the EU Treaty.

Lord Carnwath agreed with Lord Reed, but added that alongside the principles of parliamentary sovereignty, and the exercise by the executive of prerogative powers, sat the principle of parliamentary accountability. He pointed out that Parliament could hold the executive to account in a variety of ways including politically. He referred to the government’s intention to publish a Great Repeal Bill, and indicated that as long as the Bill was passed before the article 50 process was concluded then there would be no breach of the various constitutional principles. In the interim, parliament could and would keep the executive to account in ways other than through legislation.

The devolution issue

All of the sitting Supreme Court judges agreed on the question of whether or not the government had to obtain the consent/enter into discussions with the devolved administrations before notice under article 50 could be served. The court held that although the devolutions acts had been entered into on the assumption that the United Kingdom would remain a member of the EU, because foreign affairs are not devolved matters in any of the devolved administrations, there was no requirement on the UK government to engage on these issues with the devolved administrations.

The court had also heard arguments on the application of the Sewel Convention – the understanding between UK government and the devolved administrations that the UK government would not normally legislate with regard to devolved matters without the consent of the devolved administrations. The devolved administrations argued that the existence of the convention meant that the UK government could not remove rights derived from European law and enshrined in devolved legislation without the consent of the devolved administrations. The court relied on well-established doctrine that courts cannot adjudicate on political conventions. Although both the Scotland Act 1998, and the then Wales Bill 2016-17 included a phrase which essentially enshrined the Sewell Convention into legislation, the phraseology of the provisions made it clear that there was no intention to make the agreement justiciable (the phrase used in the Scotland Act 1998 being “…it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament…”)

Wider ramifications

From a constitutional perspective this case is hugely significant but for most public and administrative lawyers it will not be a case which they reference day to day. The case restated broad constitutional principles and applied them to a specific set of facts. However, there is one area which is more relevant.

The comments of the majority on the status of referendums, whilst in some respects obvious, are a helpful reminder of the role of Parliament, elected representatives and the electorate. Simply because a referendum occurs and a majority of people vote in favour of a proposition does not mean that government or Parliament are bound by that outcome, at least legally speaking (unless the Act providing for the referendum provides otherwise). This is likely to be relevant in the future as more referendums look likely in relation to devolution and/or independence of the devolved administrations.

What next for Brexit?

The government had a ready-prepared one page Bill authorising government to issue notice under article 50 of the EU Treaty. The Bill is available here. It had its first reading in the House of Commons 15 days after the judgment in the Miller/Santos case was handed down.

The Bill has already proceeded through the House of Commons without amendment and has already had its first reading in the House of Lords. The second reading took place on 20 February 2017. There is speculation about whether the House of Lords will seek to amend or block the Bill. Already people are stating that if the House of Lords does try to block or amend the Bill it will be a clear indication that the unelected second chamber is out of touch and should be reformed. Some of the Lords have indicated that they do not care that this is the accusation which will be levelled and will nevertheless seek to amend the Bill substantially. However, most commentators expect the Lords to reluctantly pass the Bill.

That being the case, the Bill will be passed freeing up the government to serve notice under article 50 of the EU Treaty. From there it will be a matter of seeing what deal the UK can secure with Europe.

Remainers will undoubtedly think that the Miller/Santos case has not fulfilled its potential. Even informed Remainers, who recognised that the case would not stop Brexit, hoped that the requirement to pass legislation would allow Parliament to try to dictate terms for exit, leading to a softer exit. It is undoubtedly a political triumph for the government that it now looks likely that Parliament will give the government a ‘blank cheque’ authorisation to serve notice under article 50 of the EU Treaty. This case is a stark reminder that the courts can only adjudicate on the law in administrative law cases – it is for Parliament to legislate and hold government to account. In this case, for political reasons, Parliament has seen fit to give government the freedom it argued for in court, and which so many of our elected representatives had publically said it was inappropriate for the government to have. If nothing else, the Miller/Santos judgment has shown us the strength of the whip system in UK politics.

No doubt there will be further twists and turns before the UK departs the EU, but there can be now be no doubt about the route to service of a notice under article 50, taking us one step closer to departure.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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