'Service of an article 50(2) [Treaty of European Union] notice will not, and does not purport to, change any laws or affect any rights. It is merely the start of an essentially political process of negotiation and decision-making within the framework of that article.'
Lord Carnwath (dissenting) in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [259].
In light of this quote, critically discuss whether the majority judgment in Miller is based on sound constitutional principle.
The case of R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union is a legal case with great constitutional significance. The majority decision resolved the argument of: whether the notification of the Notice of withdrawal of the European Union was within the executive government’s prerogative powers, and the authority of the exercise of prerogative powers without the enactment of the Parliament through statute. This case was mainly based on interpretations of the ECA 1972 and article 50(2) of the Treaty of Lisbon. This essay will prove that sound constitutional principles were demonstrated in the decision-making of the case. These include the significance of the European Communities Act 1972 in incorporating European Union (EU) law within UK’s domestic law resulting in a source of law that cannot be withdrawn with the use of prerogative powers. Furthermore, the undermining of domestic statutory rights will be proven to be beyond the extent of prerogative powers. In addition, the essay will discuss the doctrine of Parliamentary Sovereignty and Parliamentary control over the exercise of executive power in relation to EU Treaties. Further, it will be demonstrated that the powers of Government cannot be extended to alter domestic law.
Firstly, the significance of EU law as a source of law in the United Kingdom, and as an important constitutional principle, has been demonstrated through the emphasis on the European Communities Act 1972 in the majority judgement. Member States’ sovereign rights were limited through the prevalence of European Union law over domestic law through the 1972 Act. This was shown in the case of Costa v. ENEL, where Costa claimed that the nationalisation infringed the Treaty of Rome after the transfer of Italy’s electricity production and distribution to ENEL, a new state body. The ECJ held that Community law prevails over national law. This confirms the significance of the ECA 1972, as it gives effect in domestic law to EU law, constituting a source of law. This had been discussed by Lord Denning in Macarthys Ltd v Smith (1981) as he said ‘It [EU law] is part of our law which overrides any other part which is inconsistent with it’. Secondly, the purpose of the 1972 Act and the intention of the Parliament when the Act was passed was to give effect to the UK’s membership in the EU, and implied that it should remain so, unless Parliament decides otherwise. Therefore, withdrawal of the EU with the exercise of the prerogative was therefore seen to be inconsistent with the way Parliament endorsed and gave the accession of the UK effect through the ECA. On the other hand, Lord Reed disagreed with this approach in the dissenting judgement of Miller stating that the Act ‘imposes no requirement, and manifests no intention, in respect of the UK’s membership of the EU’, arguing that triggering article (50) will only alter the application of the ECA, which cannot be inconsistent with it. Thirdly, as the UK follows a dualist approach, the enactment of legislation, the ECA 1972 in this case, was necessary to apply international law within national law; Lord Denning proved that EU law would have no effect internally without the 1972 Act. Giving EU law this status, it is unlikely to allow ‘foreign relations prerogative’ to excise a body of law from the domestic law of the UK. The ECA also gave the principle of Direct Effect force, which allowed Treaties to be given legal effect ‘without further enactment’; direct applicability will be ineffective once the 1972 Act is withdrawn. This is a clear demonstration that EU law, as a source of law incorporated through the ECA 1972, had great significance on the majority judgement and can only be repealed with prior legislative authority, limiting the extent of Royal Prerogative.
Since the withdrawal of the EU will cause a change in domestic law, rights enjoyed by UK residence will also be affected; these rights include: the “Four Freedoms”, protection of EU competition law and employment protection. Domestic rights that are embodied and protected within section 2(2) of the ECA will cease and repeal once the UK withdraws from the EU; such constitutional reforms cannot be reached through ministerial action alone. Lord Parmoor in De Keyser stated that direct regulation of constitutional reforms as EU Treaties can only be made by statute; suggesting that prerogative powers can only be exercised when relevant statute is passed. John Finnis’s based his reasoning on limited prerogative powers, in relation to statutory rights, on the fact that executive action cannot destroy ‘statutory rights enacted my Parliament’, such as rights acquired under the Treaties given under the 1972 Act, without Parliament authorisation. As a result of this, prerogative power cannot be used to ‘terminate’ rights attained by UK citizens by withdrawing such Treaties without Parliament enactment. On the other hand, HM Attorney General, Mr Eadie QC argued that the exercise of prerogative power to withdraw from EU Treaties without primary legislation exists, assuming that Parliamentary control did not cover control over withdrawing EU Treaties. Furthermore, he had suggested in his submissions on behalf of the Secretary of State that referendums, such as the 2015 Act were decisive without prior legislative authority. In addition, the Secretary of State argued and referred to the case of JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476, as Lord Templeman stated that “[t]he Government may negotiate, conclude, construe, observe, breach, repudiate or terminate a treaty”. However, this is irrelevant to the case of Miller due to the subjectivity to constraints by primary legislation on the use of prerogative powers: Case of Preclamation, as Royal Prerogative ‘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’ as Lord Oliver of Aylmerton suggested.
The doctrine of Parliamentary Sovereignty and Parliamentary control over the exercise of executive power in relation to EU Treaties is clearly shown in Miller. It is the most fundamental doctrine of the UK’s constitution as Parliament can make and unmake any law it wants, limiting the exercise of Government’s powers to override Act of Parliament. Miller ensured ‘Parliamentary sovereignty is recognised in courts’ and will ‘set a precedent’ for future cases. The principle of Parliamentary Sovereignty was impacted by the Treaty of Lisbon as the accession of the UK in the EU required incorporation of international treaties with the maintenance of legislative supremacy, . Therefore, EU law constitutes an overriding source of law due to Parliament’s sanctions preserving the sovereignty of Parliament, as Parliament may repeal any statute including the ECA if it wishes. Furthermore, the exercise of prerogative powers to legislate or take executive action, such as withdrawing from the EU, without the consent of Parliament is viewed to be within an outdated principle constrained in the 17th century, resulting incompatibility with modern democracy. Theresa May claimed that the executive has power to take actions based on the votes of the people through the referendum, without referring to Parliament’s authority. However, the majority stressed that the referendum is based on the statute that authorized it as it is ‘a product of Parliamentary authority’, meaning that the referendum was of political importance, but not legally binding. Mark Elliott suggested that the prerogative cannot be used against the will of Parliament regardless of the importance of the constitutional changes invoked, as this extent of prerogative powers undermines parliamentary legislation being incompatible with Parliamentary sovereignty. It was also suggested that the exercise of the prerogative only offends the principle of parliamentary supremacy. Therefore, the ratio decidendi of Miller involved that it is ‘improbable’ to expect ministers to act without the authority of the Parliament, which emphasizes the doctrine of parliamentary sovereignty. The defendant, on the other hand, relied on the case of Rees-Mogg where the applicant sought judicial review to authorise the use of prerogative powers without an Act of Parliament to consent to a protocol to the Maastrict Treaty. It was held that ministers could ratify protocols without Parliament’s authorisation. This defence was rejected in Miller, as Lord Hughes stated that the existence of a relevant statute –ECA particularly – gave effect to EU law into domestic law and authorised the UK to join the EEC, and therefore, there must be another statute to ‘authorise service of notice to leave’.
Miller questioned the extent of prerogative powers in trigger article (50) and whether withdrawal from treaties could result in an alteration of the law. The majority held that prerogative powers cannot be exercised in a sense that alters the law. This idea originates from the Case of Proclamations of 1610; the exercise of Crown powers must be consistent with legislation and common law, if not, the law will be infringed. On the other hand, Lord Neuberger analysed the extent of prerogative powers in relation to the making and unmaking of international treaties without the authorization of Parliament, suggesting that this falls within their power due to the principle of dualism. However, this is restricted to the consistency of the making and unmaking of treaties with the alteration of the domestic law of the UK. Furthermore, EU law had been described to be a “direct” and “independent” source of domestic law, and therefore, constituting a status of great significance in domestic law, and therefore, this confirms that it is not within the extent of the prerogatives to alter or withdraw from EU law as it performs an important source of domestic law. Next, the exercise of prerogative power to withdraw from the EU is viewed to be altering the rule of recognition a part of the law of the land, that cannot be changed by Crown Powers. The rule of recognition is an indication that ‘a rule in virtue of which other rules are legal rules’.
In conclusion, this essay ultimately argues that the judgement of Miller was based on sound constitutional principles. Initially, the majority considered the constitutional significance of the ECA, as it gives EU law effect in UK’s domestic law, constituting an overriding and unprecedented source of law. Therefore, withdrawing the ECA will cause the cut off of a source of law, which is inconsistent with the extend exercise of prerogative powers. The incorporation of domestic rights enjoyed by the UK residents in section 2(2) of the ECA will be repealed once the UK is withdrawn; ministers cannot remove rights, especially statutory rights enacted by Parliament. Next, the essay discussed the incompatibility of the undermining of Parliamentary legislation, which is incompatible with Parliamentary sovereignty. Finally, an alteration of domestic law will result due to the UK’s withdrawal from EU treaties, and this cannot be done through prerogative powers.