In January the Supreme Court gave judgment in R(Miller and another) v Secretary of State for Exiting the European Union. The fact that this important case came about is due to four particular features of the process adopted to exit the European Union. Taken together these four features took us along the road that led to Miller.
The first feature relates to the European Union Referendum Act 2015. This is the Act passed to authorise a referendum on European Union membership. The Act did not stipulate what should happen in response to the referendum result. This contrasts with the Parliamentary Voting System and Constituencies Act 2011, which authorised a referendum on the voting system for general elections. The 2011 Act had a provision requiring the alternative vote system to be adopted in Parliamentary elections, but by section 8 stated that the relevant minister should bring this provision into force if it was approved in a referendum, but, if it was not, he should repeal it. The House of Commons Library Briefing Paper on the European Referendum Bill stated that “it does not contain any requirement for the UK Government to implement the results of the referendum, nor set a time limit by which a vote to leave the EU should be implemented.” There is no convention, of the UK constitution, that obliges Parliament to take steps to implement the result of a referendum. When the ‘Leave’ side won the referendum, held on 23rd of June 2016, it meant that a majority of those who voted were of the opposite view to a substantial majority of parliamentarians, who had supported ‘Remain.’ This gave rise to what Nat le Roux calls “the problem of competing legitimacies.”
The second feature relates to the position adopted by the Government following the referendum. A new UK Government took office in July 2016 and shortly afterwards the new Prime Minister travelled to Edinburgh for a meeting with the First Minister of Scotland. At the conclusion of this meeting, the Prime Minister said “I won’t be triggering Article 50 until I think that we have a UK approach and objectives for negotiations – I think it is important that we establish that before we trigger Article 50”. The key word is ‘I’, it captures the Government’s mindset that the Prime Minister, as head of government, possessed the power to trigger Article 50. The story would have unfolded differently had the Government made a decision in summer 2016 to put a European Union (Notification of Withdrawal) Bill before Parliament at that point. The Government took the view that it could trigger Article 50 without authorisation to do so in the form of legislation passed by the legislature (the two Houses of Parliament).
The third feature relates to the Government’s response to Ms Miller’s claim that UK constitutional law stood in the way of the Government triggering Article 50. In September 2016, the Government announced that it was not accepting Miller’s view and would defend her challenge in the High Court. Detailed grounds filed with the court by the Secretary of State made the following assertion: “The Government intends to give effect to the outcome of the referendum by bringing about the exit of the UK from the EU. That is a proper constitutional and lawful step to take in light of the referendum result.” The Attorney General, in reference to Miller’s claim, made this comment “we do not believe this case has legal merit.” He was wrong.
The fourth feature relates to the Government’s response, in November 2016, to the decision of the Divisional court in Miller. It had lost the case, that court rejecting the arguments advanced by lawyers for the Secretary of State for Exiting the European Union. On 7th of November the Secretary of State told Parliament “The Government disagree with the Court’s judgment. The country voted to leave the European Union in a referendum approved by an Act of Parliament. Our position remains that the only means of leaving is through the procedure set out in article 50, and that triggering article 50 is properly a matter for the Government using their prerogative powers. As a result, we will appeal the High Court’s judgment at the Supreme Court.” The Government could have decided to accept the judgment of the Divisional Court and not appeal to the Supreme Court. The Prime Minister attended a meeting of the European Council in Brussels in December. The Irish Prime Minister told reporters that Mrs. May informed the other Member State leaders that the Government had “good grounds” to appeal in the Supreme Court. They may have been ‘good’ but they were certainly not very good.
Why are these fortunate features of the process? They are fortunate features because had any one of them been absent we would never have had Miller as a judgment of the Supreme Court. That the matter did end up in the Supreme Court means that the process of exiting the EU has bequeathed to UK constitutional law a very important judgment. By a majority, eight to three, the court held that “ministers cannot give Notice [under Article 50] by the exercise of prerogative powers, only legislation which is embodied in a statute will do.” (para. 123) The judgment prevented the executive (the Government), one of the three principal organs of the state, embarking on a course of action which it believed it could lawfully adopt but which was actually unlawful. It was unlawful under UK constitutional law based on ‘separation of powers’, one of the most fundamental concepts in the constitution. This concept embodies a separation of powers between the executive, the legislature and the judiciary (the judges). The majority judgment stated “Parliamentary sovereignty is a fundamental principle of the UK constitution …… The legislative power of the Crown is today exercisable only through Parliament. This power is initiated by the laying of a Bill containing a proposed law before Parliament, and the Bill can only become a statute if it is passed (often with amendments) by Parliament (which normally but not always means both Houses of Parliament) and is then formally assented to by HM The Queen. Thus, Parliament, or more precisely the Crown in Parliament, lays down the law through statutes – or primary legislation as it is also known – and not in any other way.” (para. 43) Parliament has since passed an Act, the European Union (Notification of Withdrawal) Act 2017, which received Royal Assent on 16th of March. Following the Supreme Court judgment, the Department for Exiting the European Union issued a Statement on the process for triggering Article 50. This Statement referred to the Supreme Court decision “that prerogative power alone is insufficient to give notice under Article 50.” This is a peculiar way of putting it. The power was not ‘insufficient’, rather, in the particular circumstances of the relevant treaties together with the European Communities Act 1972, the prerogative power did not exist.
The Supreme Court said of the referendum that “unless and until acted on by Parliament, its force is political rather than legal.” (para. 124) It is because of this political force that we now have the 2017 Act. The notion of moral force may also have been in play. The Government (the executive) was under no legal obligation to put a Bill, implementing the result of the referendum, before Parliament (the legislature). Parliament, having had a Bill put before it by the Government, was under no legal obligation to pass a ‘withdrawal’ Act. As Edmund Burke, speaking on the role of an MP, put it in 1774 “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” One MP who refused to sacrifice his judgment to the opinion, on EU membership, of his constituents said “I am not disrespecting the opinion of the majority; I just think, on this occasion, that it is wrong.”
The Bill passed Third Reading by 494 to 122. The figures reflect the fact that the Conservative Party manifesto for the 2015 General Election stated “we will honour the result of the referendum, whatever the outcome.” On the day of the referendum The Guardian published an article which captured the essence of the ‘political force’ that the Supreme Court would identify just over six months later: “The wrangling reflects the fact that there is no binding legal process to force Cameron to invoke article 50. In theory, he could ignore the public and disregard a Brexit vote. In practice he has repeatedly promised that the result will stick – and there may be no going back on that line now.” From July 2016 onwards, the language employed by Cabinet members in the new Government fitted very well with the content of the 2015 manifesto, a ‘political’ document. Speaking in September, the Secretary of State for Exiting the European Union said “Our instructions from the British people are clear. Britain is leaving the European Union. The mandate for that course is overwhelming: the referendum of June 23 delivered a bigger popular vote for Brexit than that won by any UK government in history.” The comparison with voting figures for parties winning UK general elections is interesting. The description of the mandate as “overwhelming” is startling. It may have been ‘clear’ but 51.9% to 48.1%, on a turnout of 72.2%, is hardly “overwhelming”, particularly in circumstances where only two of the four parts of the UK voted in favour of withdrawal. Last June many sixteen and seventeen year olds across the UK may have preferred the term “underwhelming.” A final point on the ‘political’ force of the referendum result is that it has been fascinating to witness the seamless way in which many MPs, from various parties, who supported ‘Remain’ have subsequently managed to promptly come full circle to a ‘Leave’ standpoint. A particularly potent example is Robin Walker MP. On the afternoon of referendum day, Mr Walker was on High Street in Worcester city centre, wearing a ‘Remain’ t-shirt, and energetically distributing flyers for that cause. On 17th of July he accepted the job of Parliamentary Under Secretary of State in the Department for Exiting the European Union.
It seems likely that the political force discussed above will ensure that the UK’s withdrawal from the EU will become a reality. The act of exiting the EU will do severe self-inflicted damage to the national interest. One crumb of consolation is the enhancement of our constitutional law landscape in the form of the Miller Supreme Court judgment. The majority in our highest court stood by the proper operation of the separation of powers. “We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognizes, namely by Parliamentary legislation. This conclusion appears to us to follow from the ordinary application of basic concepts of constitutional law to the present issue.” (para. 82) Basic concepts they may be but their proper application is always of huge importance. We should all be grateful for these four fortunate features of the exiting the EU story. Together they made Miller.