Professor Steve Peers
Yesterday the UK’s Supreme Court
gave its long-awaited judgment
in the case of Miller (and a parallel
Northern Ireland case), concerning the process of the UK leaving the EU. There’s
already a detailed analysis of the constitutional law aspects by Professor Mark
Elliott here.
So my post will summarise the key elements of the judgment, and put it into the
broader context of the Brexit process and the role of Parliament.
There are two main issues in the
case: the role of Parliament in triggering the Article 50 process, and the role
of devolved legislatures. Like the Supreme Court, I’ll take these two points in
turn.
Role of Parliament
The Supreme Court, like the High
Court ruling
in Miller, began by pointing out that
it was not ruling on the merits of Brexit, or on any the substantive details of
how it would take place. It was only ruling on which political bodies in the UK
have the power to send the Article 50 notice to the European Union, thereby starting
the clock ticking on the timetable for Brexit. The central question in the case
was whether the government could start the process, by means of the ancient ‘Royal
prerogative’, or whether some action by Parliament was also necessary.
While the Royal prerogative
traditionally gives the British executive power to decide (among other things)
on the negotiation and ratification of treaties, and the withdrawal from such
treaties, international treaties have no effect in domestic law without an Act
of Parliament to give them effect. In
general, the royal prerogative cannot be used to confer rights or remove rights
of individuals. Given that the UK’s EU
membership is largely regulated by an Act of Parliament – namely the European
Communities Act – does it therefore follow that an Act of
Parliament (or some other form of consent by Parliament) is necessary to
authorise the government to begin the process of removing those rights?
The Supreme Court ruled by a
majority (8-3) that Parliamentary consent was indeed necessary. It did so by
pointing to the particular nature of EU law – a ‘dynamic’ process of new law-making
by EU institutions, which takes effect as part of the domestic law of the UK by
means of (primarily) the European
Communities Act.
In reaching this conclusion, the
Supreme Court touched on a number of important points. Most significantly, it expressly
stated that the judges were not deciding the question of whether an Article 50
notice could be revoked after it was sent, or whether any conditions could be attached
to it (para 26). This compares to the High Court, which had accepted the
agreement between the parties that the notice to withdraw from the EU could not be revoked.
This is significant because some
would like Parliament or the public to consider whether to withdraw the Article
50 notice, with the result that the UK remains in the EU, when the terms of the
final agreement to leave are known. That objective is obviously not feasible in
principle unless Article 50 is indeed revocable – although there might be
another route to the same end: an indefinite
suspension of the two-year time limit for leaving the EU.
A case will soon
be brought before the Irish courts on this point, seeking to obtain a
reference to the ECJ to clarify the issue. The Irish courts – or the courts of
any other Member State – now need not be concerned by any possible awkwardness stemming
from taking a different view from the UK courts on this issue. Furthermore, if
the revocability issue is somehow brought before a UK court, any lower court can
see that the Supreme Court has deliberately left the issue open, and so can
consider the issue afresh.
Next, the Supreme Court provided
a neat – if belated – answer to the argument that EU law membership has
rescinded parliamentary sovereignty. It observes (paras 60 and 66) that EU law
only applies in the UK as a matter of domestic law because Parliament had agreed
to this in the European Communities Act.
It followed that Parliament could always curtail or abolish this domestic
effect of EU law, if it chose.
The Supreme Court also ruled that
Parliamentary involvement in converting EU law into British law, by replacing
the European Communities Act with a
planned ‘Great
Repeal Act’, was not sufficient to substitute for the role it should
have in triggering the Article 50 process (para 94). Its discussion of the European Union Act
2011 (para 111) does not address head on the argument
some have made that this act requires a further referendum before leaving the
EU. For a number of reasons, the judges confirm that the referendum result is
not legally binding – although they also acknowledge its political significance (leading up to para 125). Finally, it makes
clear that legislation (ie an Act of Parliament) is required to trigger Article
50 (para 123). A parliamentary motion won’t do – meaning that parliament will
have more chance to influence the result.
Devolved
legislatures
What about the position of the UK’s
devolved legislatures, in Scotland, Northern Ireland and Wales? First, the
Supreme Court ruled that those provisions of the Westminster legislation
setting up these bodies which require them to act in accordance with EU law do not
require those legislatures’ consent to the UK withdrawing from the EU. Secondly,
it ruled that the ‘Sewel Convention’ – the informal constitutional rule that
Westminster will not normally legislate in areas of devolved powers without devolved
legislatures’ approval – was not a legally binding rule. Finally, it also ruled
that the Good Friday Agreement did not address the Brexit issue.
Comments
What does the judgment mean for
the Brexit process, and for parliamentary democracy more generally? On Brexit,
it means that the government needs Parliament to adopt an Act to trigger
Article 50, and it intends to propose a bill to this end
very soon. Before becoming an Act of Parliament, a bill needs majority
support from both Houses of Parliament. While, in light of the referendum result,
there is no prospect that a majority of MPs will reject triggering Article 50, the
bill is potentially subject to amendments – although the government may try to argue
that amendments to its short, highly focussed bill are inadmissible.
But certainly the opposition parties
will try. The Labour party has announced plans to table a number of
amendments; the Scottish National Party says it will table 50
amendments; and the Liberal Democrats will propose
holding a referendum on the final agreement reached by the UK and EU. In the
House of Commons, the combined opposition would need around ten Conservatives to
join them to pass any amendment. The House of Lords has to pass the bill too.
For a good overview of possible
amendments, see this post
by Professor Jeff King. In my view, one particular key amendment is essential: ensuring
that an Act of Parliament must be passed to approve the UK/EU Brexit deal. That
will give Parliament, in 2019, the full power to decide what to do then, from the
range of possibilities available.
Anticipating one popular amendment,
the government conceded
already today that it will publish a White Paper on Brexit. However, rather
cynically it seems that the White Paper will only be published after much
of the parliamentary scrutiny has taken place. And it has been rightly
suggested that an impact
assessment would be much more useful.
While the Miller judgment means that arguments over Brexit primarily shift from the courts to
parliament, it is not quite the end of legal proceedings. As noted already, the
Irish case about the possible revocability of Article 50 will soon be launched,
and the Miller ruling is expressly
neutral on this point.
Furthermore, the ruling arguably
strengthens the contention in a planned case (Wilding and others) that Parliament must also vote on whether the UK should leave the European Economic Area
(EEA), a separate treaty that extends the EU single market to some non-EU
countries. I’ve previously blogged on
that planned case here,
and I can update the status of the case, thanks to Chelvan of No5 chambers, who is acting for one of the claimants
(led by Ramby de Mello, for the second Claimants). The permission hearing in the case is due 3 February,
and these claimants are arguing that (1) as with the European Communities Act, the royal prerogative does not give the
executive power to issue an notice under Article 127 of the EEA; and (2) following
the Miller judgment, the exercise of
the prerogative without authority of an Act of Parliament will lead to a
destruction of fundamental rights and freedoms conferred to UK and EEA
nationals living and residing in the UK. As Miller
confirmed, the referendum result is advisory; and in any event, it was an expression
of political will with respect to leaving the EU and not the EEA.
What about the broader impact of
the judgment? It is striking that in every respect, the judgment places the
Westminster Parliament at the centre of the Brexit debate. By rejecting use of
the royal prerogative to trigger Article 50, the ruling gives Parliament the
power to set conditions upon the executive’s conduct of Brexit talks, and ensures
that a broader public debate takes place. By affirming that the referendum result
was not legally binding, it guarantees that legal authority remains with
elected Members of Parliament – buttressed with unelected Lords – rather than
the general public. And by asserting
that devolved assemblies do not have a veto over Brexit, it entrenches
Westminster’s decisive role in the national political debate. Miller raised deep questions about a
number of developing tensions in the fabric of British constitutional law: between
direct and representative democracy; between Parliament and executive; and
between devolved powers and UK-wide government. To every question, the answer
was, in effect: the Westminster Parliament.
Of course, there are practical limits to Westminster’s legal
authority; and the judgment expressly recognises them. The outcome of the
referendum vote is an unavoidable political reality. And so is the convention of
seeking seeking the views of devolved assemblies – even though the government
has already rejected their views, and intends to proceed against the opposition
of the majority of voters in Scotland and Northern Ireland, and (as regards ‘hard
Brexit’ at least) against the opposition of the government of Wales and the Plaid
Cymru party (see their recent position
paper). Furthermore, the executive has many ways to influence the conduct
of Parliament’s business.
But for all these caveats, the
judgment has certainly returned a degree of power over Brexit to the mother of
Parliaments. The outcome of the debate over the Article 50 bill, in conjunction
with the battle to come over the ‘Great Repeal Bill’, will determine how
important Parliament remains as Brexit unfolds.
Despite many constitutional
lawyers’ criticism of the technicalities of the judgment, in my view it at
least fully expresses the traditional spirit of the UK constitution – and Parliament’s
historic role in British political life. I’m an infrequent visitor to the
Houses of Parliament, but I’ve experienced Ian Paisley push rudely in front of
me in a queue, Dennis Skinner swear randomly at me in a lift, and Liam Fox
glare angrily at me in a corridor. (Reader, I glared back at him). It’s the
birthplace of boundless political dreams – yet also the graveyard of countless
political careers.
Westminster's position may not last. Many
have legitimate concerns about Parliament: the Hogarth cartoons displayed on
its walls remind us that concerns about its scandals stretch back through the
centuries. There are valid arguments for
further decentralisation of power to the regions, cities and devolved assemblies;
for direct democracy; and for the efficiency of executive power. But for now,
its pivotal role in the deciding the key aspects of Brexit can only be
welcomed.
Barnard and Peers: chapter 27
Photo credit: the Telegraph
