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THE SUPREME COURT'S JUDGMENT IN MILLER: IN SEARCH OF CONSTITUTIONAL PRINCIPLE

Published online by Cambridge University Press:  11 May 2017

Mark Elliott
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Abstract

In R. (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the UK (1) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (2) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority's analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment's restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

Keywords

Brexitroyal prerogativeconstitutional lawEuropean Unionparliamentary sovereignty
Type
Articles
Information
The Cambridge Law Journal , Volume 76 , Issue 2 , July 2017 , pp. 257 - 288
Copyright
Copyright © Cambridge Law Journal and Contributors 2017 

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Footnotes

*

Professor of Public Law, University of Cambridge; Fellow, St. Catharine's College, Cambridge. I am grateful to Mikolaj Barczentewicz, John Bell, Timothy Endicott, David Feldman, Tom Fairclough, Aileen McHarg and the anonymous reviewers for their comments on an earlier draft of this article; to colleagues with whom I have discussed relevant issues – in particular, Paul Daly, Hayley Hooper, Jack Williams and Alison Young; and to Mara Malagodi and John Stanton, who hosted a talk at City Law School in which some of the ideas set out in this article were presented. The usual disclaimer applies.

References

1 [2017] UKSC 5; [2017] 2 W.L.R. 583 (hereinafter “Miller”).

2 The majority consisted of Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge. Lord Reed, Lord Carnwath and Lord Hughes dissented.

3 Daily Mail, 4 November 2016, p. 1.

4 [2016] EWHC 2768 (Admin); [2017] 1 All E.R. 158.

5 See Section III below.

6 See Section IV below.

7 See Section V below. In the principal dissenting judgment, Lord Reed concluded that the argument based on convention did not, on his analysis, arise, because, on his view, no legislation to which devolved consent could be given was required: Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [177].

8 See Section VI below.

9 Lead claimant's written case, para. 12.

10 Although the question of revocability might seem to be key, it is at least arguable that it is a red herring. As G. Peretz, “Will the Supreme Court Have to Make a Reference to the Court of Justice of the EU in Miller? Further Thoughts”, Monckton Chambers Brexit Blog, 14 November 2016, argues, even if Parliament could intervene to prevent an Article 50 notification from resulting in Brexit, the fundamental principle remains that “the Royal Prerogative should not be able to remove statutory rights without a positive act by Parliament, namely a specific statutory power or an Act of Parliament”. On this analysis, even if the Article 50 notification were unilaterally revocable by the UK, that would not impact upon the question whether legislation is needed to authorise the initiation of the withdrawal process.

11 Blackburn v Attorney General [1971] 1 W.L.R. 1037, 1040.

12 Ibid., at p. 1040.

13 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [160]. See also Endicott, T., Parliament and the Prerogative: From the Case of Proclamations to Miller (London 2016)Google Scholar.

14 N. Barber, T. Hickman and J. King, “Pulling the Article 50 ‘Trigger’: Parliament's Indispensable Role”, UK Constitutional Law Blog, 27 June 2016.

15 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [48].

16 Ibid., at para. [50].

17 Ibid., at para. [51].

18 Ibid., at para. [77].

19 Finnis, J., Brexit and the Balance of our Constitution (London 2016)Google Scholar.

20 Lord Reed's is the leading dissenting judgment in the sense that it, unlike any other dissenting judgment, commanded the support of all the other dissentients.

21 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [177].

22 Ibid., at para. [187].

23 Ibid., at para. [204].

24 Barber et al., “Pulling the Article 50 ‘Trigger’”.

25 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [187].

26 Ibid., at para. [81].

27 Ibid., at para. [81].

28 Ibid., at para. [81].

29 Ibid., at para. [82].

30 Ibid., at para. [82].

31 Ibid., at para. [82].

32 Ibid., at para. [81].

33 Ibid., at para. [83].

34 It is possible to read the majority judgment, at least in places, even more broadly, i.e. as suggesting that the scale argument does not (simply) bear upon questions about how the ECA should be construed, but operates instead as an independent and direct constraint upon the use of prerogative power.

35 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [82]. The view that “fundamental” constitutional changes can be made only by Parliament has something in common with the position adopted by the Court of Appeal in R. (Jackson) v Attorney General [2005] EWCA Civ 126; [2005] Q.B. 579, in which it was said (at [48]) that certain fundamental changes “could only be enacted or expressly made possible by what is traditionally the sovereign Parliament” rather than under the Parliament Acts 1911–49. However, the House of Lords went on to reject the distinction that the Court of Appeal had sought to draw between fundamental and other constitutional changes: R. (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 A.C. 262.

36 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [90].

37 Human Rights Act 1998, s. 1(1).

38 Ibid., s. 21(1).

39 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [74].

40 For a contrasting analysis, according to which the HRA creates “statutory rights” such that withdrawal from the ECHR would not terminate the HRA's capacity to protect convention rights, see E. Bjorge, “EU Rights as British Rights”, University of Bristol Law School Blog, 14 November 2016. My present purpose is not to assess the merits of these two analyses. Rather, it is to consider whether Miller tells again a reading of the HRA that leaves open the possibility of prerogative-instigated withdrawal from the ECHR.

41 Indeed, the HRA explicitly eschews any such claim: legislation, including Acts of the UK Parliament, that are found to be incompatible with convention rights can be declared to be so under s. 4(2), but such a declaration, according to s. 4(6), “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”.

42 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [81].

43 Ibid., at para. [82].

44 Ibid., at para. [61].

45 Ibid., at para. [61].

46 Ibid., at paras. [65], [80].

47 Ibid., at para. [61].

48 R. v Secretary of State for Transport, ex parte Factortame Ltd. (No 2) [1991] 1 A.C. 603.

49 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [81].

50 R. (HS2 Action Alliance Ltd.) v Secretary of State for Transport [2014] UKSC 3; [2014] 1 W.L.R. 324. See in particular the judgment of Lord Reed (with which Baroness Hale and Lords Neuberger, Mance, Kerr, Sumption and Carnwath agreed) (at [79]) and the joint judgment of Lords Mance and Neuberger (at [207]) (with which Baroness Hale and Lords Kerr, Sumption, Reed and Carnwath agreed). On the HS2 case, see further Elliott, M., “Constitutional Legislation, European Union Law and the Nature of the United Kingdom's Contemporary Constitution” (2014) 10 Eu.Const. 379 Google Scholar.

51 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [86].

52 I am not concerned here with EU law that secures legal effect in the UK through the enactment of domestic legislation (e.g. secondary legislation made under the ECA, s. 2(2)). When such domestic legislation is enacted, it is that legislation and not the EU instrument that prefigured its enactment, that has domestic legal effect. In such circumstances, there is no question of EU law constituting domestic law; rather, EU law is the proximate cause of the enactment of law that is, uncontroversially and in the full sense, domestic law.

53 Wade, H.W.R., “Sovereignty – Revolution or Evolution?” (1996) 112 L.Q.R. 568 Google Scholar.

54 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [60].

55 Ibid., at para. [60].

56 Ibid., at para. [224].

57 Ibid., at para. [224].

58 Ibid., at para. [227].

59 Ibid., at paras. [224]–[225], [228].

60 Pham v Secretary of State for the Home Department [2015] UKSC 19; [2015] 1 W.L.R. 1591.

61 HS2 Action Alliance Ltd. [2014] UKSC 3; [2014] 1 W.L.R. 324.

62 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [216].

63 Ibid., at para. [228].

64 Ibid., at para. [60].

65 Ibid., at para. [61].

66 Ibid., at para. [61].

67 Ibid., at paras. [65], [80].

68 Re McCord, Judicial Review [2016] NIQB 85.

69 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [131].

70 Ibid., at para. [132].

71 Ibid., at para. [132].

72 Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee (2013), p. 8.

73 Cabinet Manual ( 2010), p. 64.

74 See Department for Constitutional Affairs, Devolution Guidance Note 10: Post-Devolution Primary Legislation affecting Scotland; Wales Office, Devolution Guidance Note 17: Modifying the Legislative Competence of the National Assembly for Wales. No equivalent provision is made in respect of Northern Ireland: Devolution Guidance Note 8: Post-Devolution Legislation Affecting Northern Ireland.

75 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [130].

76 Ibid., at para. [130].

77 Ibid., at para. [146].

78 Ibid., at para. [141] citing Re Resolution to Amend the Constitution [1981] 1 SCR 753, 774–75, per Laskin C.J. and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer J.J.

79 For contrasting views on enforceability, see J. Jaconelli, “Do Constitutional Conventions Bind?” [2005] C.L.J. 149; and Allan, T.R.S., The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford 2013), ch. 2CrossRefGoogle Scholar.

80 Evans v Information Commissioner [2012] UKUT 313 (AAC).

81 Ibid., at para. [64].

82 Ibid., at para. [68].

83 Ibid., at para. [68].

84 Attorney-General v Jonathan Cape Ltd. [1976] Q.B. 752.

85 Ibid., at p. 770.

86 Ibid., at p. 770.

87 TEU, Article 50(1).

88 Written case of Lord Advocate, para. 85.

89 Miller [2017] UKSC 5; [2017] 2 W.L.R. 583, at [146].

90 Ibid., at para. [148].

91 Ibid., at para. [148].

92 Ibid., at para. [149].

93 Ibid., at para. [148].

94 Appellant's Written Case on the Devolution Issues, para. 24.

95 Ibid., at para. 31.

96 Ibid., at para. 33.

97 At least when judged in terms of published debate. That debate played out in a wide variety of forums, but nowhere more notably than in the pages of the UK Constitutional Law Association Blog <https://ukconstitutionallaw.org/blog/> (accessed 22 April 2017).

98 [2016] EWHC 2768 (Admin); [2017] 1 All E.R. 158, at [22].

99 See e.g. P. Daly, “Brexit: Legal and Political Faultlines”, Administrative Law Matters, December 2016, available at <http://www.administrativelawmatters.com/blog/2016/12/06/brexit-legal-and-political-faultlines/> (accessed 22 April 2017); A. Young, “R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality?”, UK Constitutional Law Association Blog, November 2016, available at <https://ukconstitutionallaw.org/2016/11/09/alison-young-r-miller-v-the-secretary-of-state-for-exiting-the-european-union-2016-ewhc-2768-admin-constitutional-adjudication-reality-over-legality/> (accessed 22 April 2017).

100 R. (Evans) v Attorney General [2015] UKSC 21; [2015] A.C. 1787.

101 Freedom of Information Act 2000, s. 53(2).

102 A separate majority judgment, adopting different reasoning, was given by Lady Hale and Lord Mance.

103 R. (Evans) [2015] UKSC 21; [2015] A.C. 1787, at [168].

104 For more detailed analysis of Evans, see M. Elliott, “A Tangled Constitutional Web: The Black-Spider Memos and the British Constitution's Relational Architecture” [2015] P.L. 539.

105 The Upper Tribunal is designated a superior court of record by the Tribunals, Courts and Enforcement Act 2007, s. 3(5).