The long awaited case of R (on the Application of Miller & Dos Santos) vs Secretary of State for Exiting the European Union, as with most significant Supreme Court cases and matters, is in reality not about its subject matter – but rather a different legal matter. This case is not necessarily about Brexit – it is more about the finer niceties of Constitutional Law.
It is less about the pros and cons of Brexit – but rather about the delineation of the power of the Executive and the Government. The Government was relying on ancient Royal Prerogative powers to push through legislation concerning Brexit – such as giving Notice under Article 50.1 – 50.3 of the Treaty on the European Union (1993) – and leaving any relevant EU treaties. However, the counter argument advanced was that leaving the various treaties would be so significant, and remove existing domestic rights under secondary EU and UK legislation from British citizens, that giving Notice effectively lay beyond the scope of the use of any such royal prerogative powers.
It was readily agreed in Court that the Government has the right to make and unmake international treaties, using such powers, without recourse to Parliament. This has been proved categorically and legally previously. Quoting from the verdict:
(34) The Secretary of State’s case is based on the existence of the well-established prerogative powers of the Crown to enter into and to withdraw from treaties. He contends that ministers are entitled to exercise this power in relation to the EU Treaties, and therefore to give Notice without the need for any prior legislation. Following the giving of Notice by the end of March 2017, ministers intend that a “Great Repeal Bill” will be laid before Parliament. This will repeal the 1972 Act [of Accession into the EU] and, wherever practical, it will convert existing EU law into domestic law at least for a transitional period. Under article 50, withdrawal will occur not more than two years after the Notice is given (unless that period is extended by unanimous agreement among the other member states), and it is intended that the Great Repeal Bill will come into force at that point.
(36) [Mrs Miller’s] case in that connection is that when Notice is given, the United Kingdom will have embarked on an irreversible course that will lead to much of EU law ceasing to have effect in the United Kingdom, whether or not Parliament repeals the 1972 Act. As Lord Pannick QC put it for Mrs Miller, when ministers give Notice they will be “pulling … the trigger which causes the bullet to be fired, with the consequence that the bullet will hit the target and the Treaties will cease to apply”. In particular, he said, some of the legal rights which the applicants enjoy under EU law will come to an end. This, he submitted, means that the giving of Notice would pre-empt the decision of Parliament on the Great Repeal Bill. It would be tantamount to altering the law by ministerial action, or executive decision, without prior legislation, and that would not be in accordance with our law.
In the joint verdict of eight of the 11 Justices (Lord Reed, Lord Carnwath and Lord Hughes disagreed, giving a dissenting judgement), Lord Neuberger early on unintentionally sets out the Supreme Court position on this case. Seemingly quite repetitively, he covers similar legal grounds until his conclusion. What the Court emphasises is that Government has the absolute right to make and unmake treaties and similar by use of Royal Prerogative, Government has no right to alter domestic legislation except without reference to Parliament, the law makers. Such ground was established at the High Court hearings, and was seemingly re-usef and re-presented here. Inevitably, Lord Neuberger quotes Lord Oliver’s famous line from the Tin Council case on Royal Prerogative powers; “As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament”
Equally inevitably, Sir Edward Coke’s CJ famous line from the Case of Proclamations (1610) is also referred to:
(44) “the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm”. Although this statement may have been controversial at the time, it had become firmly established by the end of that century. In England and Wales, the Bill of Rights 1688 confirmed that “the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall” and that “the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall”.
Following that, the eventual conclusion was fairly inevitable. It was established that the European Communities Act (1972) was an Act of Parliament, and not necessarily an international treaty – and consequently cannot be repealed without Parliamentary consent. Similarly, the rights – under EU and domestic law- conferred cannot be disposed off without Parliamentary consent.
Although the case was eagerly anticipated, and seen as the key case in modern times concerning lonstitutional law – the reality is that it was not overly significant. No new areas of law or legal policy were set out – merely a confirmation of exisiting legal principles and theories regarding constitutional law and practice. However, once again the courts have seen fit to encroach further upon royal prerogative powers, and to effectively limit the scope of such powers in a subtle but continuing theme over the last several hundred years.
Following the unsurprising and slightly uninspiring verdict, where does this leave Brexit?
Following the verdict, the Government now needs to debate an exit from the EU prior to the intended filing of Notice at the end of March. This will be an absolute Parliamentary nightmare. Both Government and Opposition need to come up with a party line and policy points regarding Brexit. For the sake of stability, and sending a message of cohesiveness to the EU , and foreign allies and potential future trading partners, that line needs to be kept by all MP’s. Being realistic, the Referendum has exposed massive party divides on the very EU matter; indeed, Jeremy Corbyn has still yet to instill either party unity or devise an EU policy. As such, the necessary unity will be very hard to find. The debate will only serve to expose greater divides in both parties, and will probably see more internal squabbling and than cross party debate.
Further, it is only to be expected that the Scottish Nationalist Party (SNP) will fight the matter of Brexit at every possible stage. Under the fiery leadership of Nicola Sturgeon, Scotland will only oppose any moves towards Brexit. Given the vocal nature of the SNP voice in Westminster, that will only foster more delay, and more division. At this time, delay is counter productive to any Brexit negotitations; delay will only serve to give the whole matter greater political and economic uncertainty.
In any event, the Article 50 case is now settled legally. In the end, the case was down to a few existing and proven points of constitutional law. Article 50 is now a political matter. As the upcoming Parliamentary debate will indirectly start the withdrawal from the EU Treaties, that debate will ultimately be of much more constitutional and democratic significance than this case was.
The last word goes to Lord David Neuberger, who in his preamble to delivering today’s verdict said that the “referendum is of great political significance, but the Act of Parliament which established it did not say what should happen as a result.”