R (Miller) v Secretary of State for Exiting the European Union
R v Secretary of State for Exiting the European Union is a United Kingdom constitutional law case decided by the United Kingdom Supreme Court on 24 January 2017, which ruled that the British Government could not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Article 50 of the Treaty on European Union without an Act of Parliament first being passed to give the government Parliament's permission to do so. Two days later, the government responded by bringing to Parliament the European Union Act 2017 for first reading in the House of Commons on 26 January 2017. The case is informally referred to as "the Miller case" or .
The Supreme Court's decision was given on appeal from the High Court's ruling that the Crown's foreign affairs prerogative, which is exercised by the government led by the Prime Minister, may not be used to nullify rights that Parliament has enacted through primary legislation. The case was seen as having constitutional significance in deciding the scope of the royal prerogative in foreign affairs. The Supreme Court also ruled that devolved legislatures in Scotland, Wales and Northern Ireland have no legal right to veto the act.
The government's appeal was against the High Court order dated 7 November 2016 that declared: "The Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the Treaty on European Union for the United Kingdom to withdraw from the European Union." The Supreme Court heard the appeal from 5 December 2016 to 8 December 2016, and, by a majority of 8–3, upheld the High Court ruling, finding that authorisation by Parliament was required for the invocation of Article 50.
The case was intervened by the Lord Advocate and the Counsel General for Wales for the Scottish and Welsh governments, and applicants for judicial review in Northern Ireland also had their three separate applications considered alongside this case, all of whom argued that the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly all had to consent to the invocation of Article 50. In each case this was unanimously rejected by the court.
Facts
Following a referendum held on 23 June 2016, in which 51.9% of votes cast were in favour of leaving the EU, the UK government stated its intention to invoke Article 50 of the Treaty on European Union on 29 March 2017. On the Monday following the referendum, three academics published a blog which argued that an Act of Parliament would be necessary before the Government could give notice to leave the EU. A few days later David Pannick, Baron Pannick, a columnist for The Times, asked whether an Act of Parliament was needed before notification could lawfully be given of the UK's intention to leave, and cited the arguments of Barber, Hickman and King in agreeing with them that an Act of Parliament was required. The government argued that the use of prerogative powers to enact the referendum result was constitutionally proper and consistent with domestic law whereas the opposing view was that the exercise of prerogative powers would undermine the European Communities Act 1972 and would set aside rights previously established by Parliament.Arguments
and other claimants had sought permission to bring an action in the High Court for judicial review on whether the UK government was entitled to notify an intention to leave the European Union under Article 50 of the Treaty on European Union, as amended, without a vote or deliberative debate in Parliament.David Davis, the Secretary of State for Exiting the European Union, argued that the possibility to trigger Article 50 was based on the royal prerogative and so any consultation of elected members of parliament was unnecessary. Miller contended that, if notification under Article 50 were to be invoked to leave the European Union, it would effectively nullify a series of Acts of Parliament. It was a constitutional principle that Acts of Parliament could not be changed without the consent of Parliament.
The Secretary of State did not contend that the Referendum Act 2015 supplied a statutory power for the Crown to give notice under Article 50. The Court observed that he was right not to do so, because any argument to that effect would have been untenable as a matter of statutory interpretation of the 2015 Act and stated:
High Court judgment
Background
There was dispute over whether the decision to invoke Article 50 was the prerogative of the government, as the Cameron government argued, or whether it required parliamentary approval. Article 50 states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".As Professor Kenneth Armstrong points out this is a decision solely for domestic law: whether constitutional requirements have been met is a matter solely for the domestic law of member states. The UK's constitutional requirements for the valid invocation of Article 50 was the entire basis of this litigation, even though this was undertaken without explicit reference to that phrase as in Art 50 in the judgments. As will be seen below, it was held that the UK constitutional requirements were that an Act of Parliament need be passed in order to bestow the power on the Secretary of State to invoke Article 50, as the European Communities Act 1972 had displaced the Royal prerogative to take the UK outside of the EU treaties.
The first of the parties to lodge a complaint in the proceedings against the government's intention to trigger Article 50 without a parliamentary vote was Deir Dos Santos, who launched his action four days after the referendum of 23 June. Miller's claim form was served on 29 July 2016. The law firm Mishcon de Reya announced that it had been retained by a group of clients to challenge the constitutionality of invoking Article 50 without Parliament debating it. In the proceedings, all parties accepted that withdrawal from the European Union would have profound consequences in terms of changing domestic law in each of the jurisdictions of the United Kingdom.
At the preliminary hearing on 19 July 2016, Sir Brian Leveson, President of the Queen's Bench Division, stated that the court gave leave to Dos Santos to stay his proceedings and join as an interested party in Miller's case, and others, such as a group of unnamed clients who were separately represented, would have the option to be interested parties in the claim or interveners. At the hearing, lawyers for the government confirmed that the government would not issue an Article 50 notification before the end of 2016. In the court proceedings, the government contended that it would be constitutionally impermissible for the court to make a declaration in terms that the government could not lawfully issue notification under Article 50 unless authorised by an Act of Parliament, and stated that the declaration now being opposed would trespass on proceedings in Parliament.
Questions were also raised over the impartiality of Lord Neuberger by Brexit MPs and The Daily Telegraph, as his wife had made a series of tweets criticising Brexit. These allegations were countered by his spokesman, who said that Neuberger's wife's personal views had no effect on Neuberger's ability to interpret the law.
Hearing
At the full hearing in October, before three judges sitting as a divisional court, it was argued for the lead claimant that notification under Article 50 would commit the UK to the removal of rights existing under the European Communities Act 1972 and later ratification acts, and that it is not open to the government, without Parliament's approval, to use the prerogative power to take action affecting rights which Parliament had recognised in that way. An argument put for the "expat" Interveners at the hearing was that by the 1972 Act, Parliament had conferred a legislative competence on the EU institutions, and in that way had changed the constitutional settlement in the UK.Responding in the opening submissions for the government, the Attorney-General outlined how the decision had been reached. In support of the contention that when passing the 2015 Act Parliament well knew of the Article 50 procedure for leaving the European Union if that was voted for in the referendum, he said that Parliament had previously dealt with it when the Lisbon Treaty was included in domestic law by the 2008 Act, and he took the court through the legislation dealing with the European Union and its predecessor, namely:
- European Communities Act 1972
- European Assembly Elections Act 1978
- European Communities Act 1979
- European Assembly Elections Act 1981
- European Communities Act 1985
- European Communities Act 1986
- European Communities Act 1993
- European Union Act 1994
- European Parliamentary Elections Act 2002
- European Union Act 2003
- European Union Act 2006
- European Union Act 2008
- Constitutional Reform and Governance Act 2010
- European Union Act 2011
- European Union Act 2013
- European Union Referendum Act 2015.
The hearing was concluded on 18 October, when the Lord Chief Justice said the judges would take time to consider the matter and give their judgments as quickly as possible.
In the meantime, the applications of other parties challenging the government in legal proceedings in Northern Ireland's High Court were dismissed on 28 October, but the court was prepared to grant leave to appeal in respect of four out of the five issues.