Some reflections on the practical implications of Miller (the Brexit case)

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul Daly, Kenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se.

  1. This will be appealed to the UK Supreme Court. Although many lawyers are expressing confidence that the Supreme Court will follow the High Court in finding that parliamentary authorisation is required, there are some important things to take note of., and especially that the Supreme Court will likely find itself dealing with some more complex devolution-related issues that are on appeal after the Brexit decision in Northern Ireland last week. This does not reduce the likelihood that the Court would find parliamentary authorisation is required, but it may have some implications for the mode of reasoning.
  2. Today’s decision approaches the question of the royal prerogative, Article 50 and Brexit in very broad terms; simply put, this is a big decision making big statements about big questions of constitutional law. Courts almost always have the capacity to narrow down their enquiry; to construct questions as being discrete and particular, and one might imagine that the Supreme Court might decide to take a more ‘minimalist’ approach to the questions this case raises. In truth, I think this is unlikely for the simple reasons that the case really does raise questions of wide and deep constitutional significance, but some ‘trimming’ of the ways in which general constitutional principles are outlined might be expected. This may not change the outcome per se.
  3. The Court made it very clear that parliamentary authorisation is required, but did not determine what the form of authorisation would be. One might interpret it as a simple ‘vote’ to authorise the triggering of Article 50, but the more likely outcome is that a Bill to trigger Article 50 will be expected and then voted on by the Parliament. UPDATE Ruvi Ziegler (Reading) helpfully points out in the comments that Davis has already conceded an Act of Parliament will be required if the appeal fails in the Supreme Court.
  4. In either case, the level of detail will be a matter of political decision-making, contestation, conflict and compromise. One might expect that in order to authorise Article 50 being triggered, Parliament would expect a number of things to be relatively clearly determined in advance. These might include ‘big’ and complex questions about the status of Northern Ireland and Scotland, implications on human rights in Northern Ireland (where particular questions arise vis-à-vis the Good Friday/Belfast Agreement), questions about the border, and the status of EU citizens living in the UK. It might also involve some seemingly smaller, but very significant, questions about things like continuity in research and development funding, key regulatory tasks currently undertaken by EU agencies and so on. Of course, the more detailed the proposition put to Parliament the more the requirement of parliamentary authorisation will delay the triggering of Article 50. I cannot foresee a situation in which, realistically speaking, this is completed in much less than 12 months if the Supreme Court upholds the outcome of this case.
  5. This may well introduce some real complications into the Brexit strategies of the UK. In order to give Parliament some indication of what it might be authorising if it authorises Article 50 being triggered the UK will, presumably, need to have some kind of relatively concrete (although of course not binding) discussions with the European Union itself in order to get a sense of a possible exit deal. In other words, the fairly rigid proposition that there will be no firm negotiation until Article 50 has been triggered should, for reasons of practicality and pragmatism, be relaxed by those who hold it within the European Union itself.
  6. That said, whatever Parliament authorises will have to be somewhat speculative: the final shape and detail of any Brexit deal that might be agreed will be the subject of extensive negotiation and, depending on its content, might require unanimity by the other member states and, in some cases (and very much depending on the content and effects of the deal) that may even require national referenda in some member states. In other words, there is a real possibility that the UK might exit the EU without a ‘deal’ and in authorising the triggering of Article 50, Parliament will need to take that into account. This will not be a situation in which absolute certainty is likely to be possible.
  7. The Court today found—and it is widely agreed in any case—that the Brexit referendum was merely advisory. It does not require the UK to leave the EU. Some have latched onto this to try to suggest that Parliament might indefinitely block or veto Brexit. While this is a technical legal possibility I consider (and I suspect most agree) that it is highly unlikely and would almost certainly be considered utterly illegitimate. This is not to say that Parliament might not try to require a referendum on the proposed Brexit deal (if any); this is a different matter.
  8. A key premise of today’s judgment is that an invocation of Article 50 is irrevocable and will lead to withdrawal from the EU. This was conceded by all parties for the purposes of ‘getting to’ the big constitutional questions of domestic relevance. However, as a matter of EU law this is not by any means clearly the case; there is certainly a possibility that an Article 50 notice might be withdrawn and a state might change its mind about leaving the EU. Ultimately, whether an Article 50 notice can be revoked is a matter of EU law and might be referred to the CJEU to decide. However, even if there were such a reference the Court might decide it cannot be decided in abstract terms (i.e. it might say that Article 50 means what it means within a member state’s constitutional system and that might vary across the member states) and, effectively, decide not to decide. The latter point was brought to me in conversation by Alison Young.
  9. There is, in my view, only a slim possibility that this will trigger an early election in the Spring. An election at that point, and pre Parliamentary authorisation for triggering Article 50, would be perceived as a proxy Brexit2 and there seems to be little if any government desire for this. Authorisation will, as I said at 4 above, almost certainly take a substantial amount of time—anything up to a year, in my view—and so I would be very surprised if there an election in 2017. Post authorisation, however, there might be a case for an election that would give the new government a strong mandate in terms of negotiating the exit and any possible Brexit Deal, and I would not be overly surprised to see a general election being called for the spring of 2018.

For people in Birmingham, we will have a roundtable/Q&A on the case next Tuesday in Lecture Theatre 1 of Birmingham Law School at 6pm. Plans are still being finalised but speakers confirmed so far are me, Adrian Hunt, Natasa Mavronicola and Ben Warwick. More TBC; all are welcome.

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fdelondras

Professor of Global Legal Studies, Birmingham. Lawyer, foodie, wonk, avid traveller.

4 thoughts on “Some reflections on the practical implications of Miller (the Brexit case)”

  1. Re #3, David Davis conceded that, should the HC ruling withstand the SC appeal, there will have to be an Act of Parliament expressly making provision for service of an Article 50 notice to leave the EU, and authorising repeal of EU law rights conferred by the European Communities Act 1972 and related subsequent primary legislation (EPA 2002 etc). So three readings in both Houses – with a government majority of 12 in the HoC, no majority in the HoL, it is not clear at all whether they will be able to effectively proceed absent an early GE (#9).

    1. Didn’t see that from Davis (been in meetings/seminars all day!). Thanks. Will adjust main text. Re #9…much depends on Labour’s capacity to Oppose and on the SNP position, one suspects.

  2. How do we contact you my eMAil?
    WE have faced precisely such a scenarion of use of executive power under prerogative power whereby a constitutional right given by a constitutional statute has been claimed to have been abridged and as a result we were told that we were no longer entitled to that status given by the statute and so we were stripped of the already conferred right,given as a result of the statutory process prescribed by that statute..
    WE first realised the distinction between statutory rights and non-statutory rights as result of a landmark court ruling exparte Bancoult .(2002). So we went deep into the subject and realised that statutory rights can only be changed by explicte amendment by parliament and even a general Edward VII clause did not give any authority to government to prerogative power to change them.
    The right in questions is given by section 6 of British Nationality Act. and itis extension by section.8..
    It has been claimed that the result of the process under section which is determined by section.9 was changed through use of prerogative power under the foreign Jurisdiction Act, delegated to a protectorate to create a legal system for that protectorate.

    I am sure that this should interest you from an academic and legal;point of view.
    There are points that we cannot disclose here as they form a defining legal pivots. If you provide your email adders than we would like to discuss them in the light of the curent jugement. This judgement proves and adds a further confirmation that Executive power can be misused to undermine rights given by stautes, if the minister can obfuscate on legal facts and grey areas of law.

    SM

  3. How do we contact you by eMAil?
    WE have faced precisely such a scenarion of use of executive power under prerogative power whereby a constitutional right given by a constitutional statute has been claimed to have been abridged and as a result we were told that we were no longer entitled to that status given by the statute and so we were stripped of the already conferred right,given as a result of the statutory process prescribed by that statute..
    WE first realised the distinction between statutory rights and non-statutory rights as result of a landmark court ruling exparte Bancoult .(2002). So we went deep into the subject and realised that statutory rights can only be changed by explicte amendment by parliament and even a general Edward VII clause did not give any authority to government to prerogative power to change them.
    The right in questions is given by section 6 of British Nationality Act. and itis extension by section.8..
    It has been claimed that the result of the process under section which is determined by section.9 was changed through use of prerogative power under the foreign Jurisdiction Act, delegated to a protectorate to create a legal system for that protectorate.

    I am sure that this should interest you from an academic and legal;point of view.
    There are points that we cannot disclose here as they form a defining legal pivots. If you provide your email adders than we would like to discuss them in the light of the curent jugement. This judgement proves and adds a further confirmation that Executive power can be misused to undermine rights given by stautes, if the minister can obfuscate on legal facts and grey areas of law.

    SM

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