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R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin)

Article 50 of the Treaty on the European Union provides that, if a member state decides to withdraw from the European Union (EU) it should serve a notice of that intention and that the treaties which govern the EU (EU Treaties) shall cease to apply to that member state within two years thereafter.

Following the June 2016 referendum, the Government proposed to use its prerogative powers to withdraw from the EU by serving an Article 50 notice (Notice). The Claimants, Gina Miller and Deir Tozetti Dos Santos issued proceedings in the High Court for a declaration that the Government could not lawfully give a Notice without prior authorisation by an Act of Parliament. The High Court ruled in favour of the Claimants.

The Government appealed to the Supreme Court. References from Northern Ireland, and interventions by the Lord Advocate for the Scottish Government and the Counsel General for Wales for the Welsh Government, raised the additional issues of whether the terms on which powers had been statutorily devolved required consultation with or the agreement of the devolved legislatures before the Notice was served.

The Claimants argued that, owing to the well-established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government was not entitled to serve a Notice unless first authorised to do so by an Act of Parliament.

The Government argued that the European Communities Act 1972 (ECA) did not exclude the power for ministers to withdraw from the EU Treaties, and that s.2 of the Act actually catered for the exercise of such a power as it gave effect to EU law only so long as the power of withdrawal is not exercised [75]. However, . The Government accepted that the resolution of the House of Commons on 7 December 2016 calling on ministers to give notice under Article 50 by 31 March 2017 was a political act which did not affect the issues arising in the appeals].

The Supreme Court by a majority of 8 to 3 dismissed the Government’s appeal. The Court ruled that the resolution of the dispute depended on the proper interpretation of the European Communities Act 1972 (ECA), which gave domestic effect to the UK’s obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015. The devolution issues required the court to consider whether the terms of the Northern Ireland Act 1998 (NIA), and associated agreements, required primary legislation, and the consent of the Northern Ireland Assembly and/or the people of Northern Ireland, before a Notice could be served. Under each of the devolution settlements in Northern Ireland, Scotland and Wales the devolved legislatures had responsibilities to comply with EU law, and there was a convention (the Sewel Convention) that the UK Parliament would not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislature.

The Supreme Court held that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. On the devolution issues, the court unanimously concluded that neither s.1 nor s.75 of the NIA was of assistance in this case, and that the Sewel Convention did not give rise to a legally enforceable obligation.

The Supreme Court considered that the terms of the ECA, which gave effect to the UK’s membership of the EU, were inconsistent with the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament. S.2 of the ECA authorised a dynamic process by which EU law becomes a source of UK law and takes precedence over all domestic sources of UK law, including statutes [60]. So long as the ECA remains in force its effect is to constitute EU law as an independent and overriding source of domestic law [65]. It operates as a partial transfer of law-making powers, an assignment of legislative competences, by Parliament to EU institutions, unless and until Parliament decides otherwise.

It was common ground that UK domestic law would change as a result of the UK ceasing to be party to the EU treaties and the rights enjoyed by UK residents granted through EU law would be affected [69]. However, there was a vital difference between variations in UK law resulting from changes in EU law, and variations in UK law resulting from withdrawal from the EU Treaties. Withdrawal makes a fundamental change to the UK’s constitutional arrangements, by cutting off the source of EU law, [78-80]. Such a fundamental change would be the inevitable effect of a Notice being served [81]. The UK constitution required such changes to be effected by Parliamentary legislation.

The fact that withdrawal from the EU would remove some existing domestic rights of UK residents also rendered it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority [83]. It would have been open to Parliament when enacting the ECA to authorise ministers to withdraw from the EU Treaties, but clear words would have been required. Not only were there no such clear words, but the provisions of the ECA indicated that ministers do not have such power [87, 88]. Withdrawal is not authorised by s.2, which envisaged ministers taking part in the EU law-making processes: withdrawing from the EU is doing the opposite.

The devolution Acts were passed by Parliament on the assumption that the UK would be a member of the EU, but they did not require the UK to remain a member. Relations with the EU and other foreign affairs matters are reserved to UK Government and parliament, not to the devolved institutions. Withdrawal from the EU would alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law.

[References in square brackets are to paragraphs in the full judgment. Crown copyright: contains public sector information licensed under the Open Government Licence v3.0. Legaleze is solely responsible for the above text which is a summary only and the full report should be read.]

Comment: in our view there has been a great deal of biased and ill-informed comment about this case. The judges were accused by some commentators of being ‘enemies of the people’. Both the Claimants and the judges have been accused of somehow thwarting the will of the people. In reality, the judges were ruling on a pure point of law and emphasised they were not seeking to interfere with the political process. Far from thwarting the will of the people, they ruled that Parliament should authorise the Notice to start the Brexit people rather than the Executive.

The remarkable aspect of this case for us is the fact that private citizens had to take the initiative and spend their own money in order to bring this enormously significant case of constitutional law.

[Page created: 05/08/2017]


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