For hundreds of years, the United Kingdom has relied on its own system of governing, which has kept the rule of law separate from the parliament. A constitution is typically in the form of a readily identifiable document. It has a special sanctity, thought to be concrete in nature, setting out the framework and main functions of the state organs giving the principles they should adopt (adhering to people’s rights and liberties). Unlike many of the leading countries around the world, the United Kingdom’s constitution is uncodified and has not been assembled into one consolidated document. However, over time, documents such as the Magna Carta in twelve-fifteen, and the Bill of Rights in eighteen sixty-nine, have provided stepping stones towards documenting the laws, customs and conventions. As stated by Jack Straw, “….in no one document can be found what is called the ‘British Constitution’. The constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law”1. Over the years judicial proceedings have served to clarify and confirm the rights and duties in UK individuals, including the case of Bushell’s (1670), Vaughan (1677), Somerset v Stewart (1772), Beatty v Gillbanks (1882). Theorists such as Blackstone, Bagshot, and May have also played their part in contributing towards documentary sources for the United Kingdom’s uncodified system.
The main sources in the United Kingdom include statute law, common law, historical documents, and conventions. The United Kingdom European Union membership referendum and the Brexit referendum took place on the twenty-third of June two thousand and sixteen. On the twenty-fourth of January two thousand and seventeen, the Supreme Court gave judgment in R (Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5, 259. “The Government then pursued to establish that it could start the United Kingdom’s withdrawal from the European Union without reference to Parliament. “The Supreme Court also considered whether the United Kingdom’s devolution arrangements impacted upon the Government’s capacity to trigger Article 50 of the Treaty on the European Union”2. It can be noted that a sound constitutional principle is a principle that the government, parliament and the judiciary all have in common, so far as that they all rely on it to make a correct and sound judgement. I plan to challenge and discuss whether or not a sound constitutional principle really exists, what the majority judgement was in the case of R (Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5, 259 and whether the majority judgment in the case is based on this principle. The main question I will be leading up to and answering is whether or not the majority got the judgement right in the Miller case, if so why and why not.
Firstly, we must establish what is a constitutional principle is. The answer will require detecting some of the key principles of the constitution of the United Kingdom. According to the United Kingdom’s Constitutional Law Association “the prime constitutional principle is that Parliament is sovereign and that ‘an important aspect’ of this principle is that ‘primary legislation (in this case the European Communities Act) is not subject to displacement by the Crown through the exercise of its prerogative powers’ (25)”3. “The Court found out that the Crown has no power to alter the law of the land, whether it be common law or contained in legislation (25)”4. “This statement can be affirmed through examples such as The Bill of Rights 1688 and statement of the Privy Council in the case of The Zamora 1916 2 AC 77″5. “These constitutional principles indicate that the prerogative cannot be used to replace European Union rights which have been set in domestic law through section 2(1) ECA”6. “However, it is also clear that there are overriding constitutional principles which may give weight to the Government’s assertion of the existence of the relevant prerogative power. Initially, the United Kingdom is a democracy and that the decision to exit the European Union was a decision dictated by the exercise of choice by the people”7. “Secondly, it is unconventional under the constitution of the United Kingdom that as a general rule applicable in the normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers (30)”8. I will look at the main reasons for the opinion of the majority and find the differences between them, and those of Lord Reed’s opposite opinion, which Lords Carnwath shared.
Referring to the question asked, R (Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5, 259, the Government sought to establish that it could initiate the UK’s withdrawal from the European Union without reference to Parliament. “The Supreme Court also considered whether the United Kingdom’s devolution arrangements impacted upon the Government’s capacity to trigger Article 50 of the Treaty on the European Union”9. As I have already mentioned, the outcome of the case was that the Government did not have the power to initiate the withdrawal, with a split of eight to three. As stated in the dissenting argument by Lord Carnwath, who was agreeing with Lord Reed, was that the notice “did not change any laws or affect any rights, and was merely the start of an essentially political process of negotiation and decision-making within the framework of that article”10. Lord Carnwath was of the view that the Court had overlooked the importance of executive accountability. He believed that it was wrong to consider the argument of choosing between parliamentary sovereignty and prerogative powers of the executive. I have already mentioned that the United Kingdom’s constitution is a balance between the roles of parliament, the executive, and the courts. Lord Carnwath is mindful of the sensitivity that exists between the bodies and that the Court could conclude that the accountability of the executive would be enough to avoid the need for Parliament’s involvement. I understand the three key aspects of the decision were the relationship between the European Union and United Kingdom Law, The European Communities Act 1972, and the scale of impact on the membership of the European Union.
Regarding the relationship, the majority view was that United Kingdom Law in the form of the European Communities Act was the source of European Union Law. Without the Act, European Union Law would have no domestic status. The majority view from this was that with European Union Law recognised as domestic law, the executive is not fit for purpose to trigger Article 50. The dissenting view, as presented by Lord Reed, was that European Union Law was derived from Statute (Act), and the Statute derives authority from the rule of recognition (H.L.A Hart’s Theory of Legal Positivism11), in other words, what counts as law. Lord Reeds sees the European Communities Act of 1972, as giving the power for the executive to trigger the article. Therefore, the prerogative remains exercisable unless legislation precludes its use. The majority are of the view that the European Communities Act does not allow for the abolition of European Union law by a prerogative act effecting withdrawal. The view is that Parliament endorsed the membership of the European Union, and so, to go against this approach with withdrawal would be incompatible.
However, looking at the constitutional implications, the majority consider the size of the issue. It was an unprecedented issue at the time of its formation in nineteen seventy-two, and so, will be the withdrawal. The majority were mindful that when European Union membership was created, it was the first time in the history of the United Kingdom, that an international source of law was grafted into, and above, United Kingdom’s domestic law, Parliament and the Courts. The withdrawal will also be unprecedented. Therefore, in order to trigger the Article 50, legislation should be created. The majority view was that whilst the European Communities Act accommodated changes in European Union Law, it did not accommodate complete withdrawal. The dissenting view was that European Communities Act was capable of accommodating triggering Article 50. I would suggest that Lord Reed had a point. Legislation does not require everything to spelt out, no matter what the scale of the issue. However, given the size of the issue, there is also an argument that could be said for that too. When looking at the matter from a legal perspective, I would agree with Lord Reed. It can be said that the two main reasons for the differing views relate to the differing perspectives on European Union Law and the political and legal control of the executive. I have already mentioned that the majority had the view that the European Communities Act (1972) gave the green light for European Union Law to become an important part of United Kingdom Law. Lord Reed dissenting was of the view that European Union Law is distinct from United Kingdom Law. It did not create statutory rights in the same sense as other statutes. All it did was give legal effect in the United Kingdom to a body known as European Union Law. I am of the opinion that it is reasonable to suggest that European Union Law has become more than a law which has been given legal effect in the United Kingdom, for example, in the Independent article on “15 EU laws and regulations we will miss in post-Brexit Britain”12.
When considering the political and legal control of the executive, the majority view was that if prerogative powers could trigger Article 50, they could have triggered Brexit without the need for a Referendum. They were dismissive of judicial review as a safeguard against casual executive-initiated withdrawal. Lord Reed, on the other hand, was of the view that the controls over carrying out ministerial powers under the constitution were not of a legal character. I believe Lord Reed has a point. It puts into question the courts’ capacity to control the exercise of certain prerogative powers. It should not lead a court that is satisfied that the relevant power exists to then doubt its existence. Finally, “The Supreme Court also considers whether the UK’s devolution arrangements impacted upon the Government’s capacity to trigger Article 5013”. The question was whether the legislation now needed would fall within the Sewel Convention. Whilst the Court did not say it was inapplicable, they did say that even if it did fall within the Convention, it was not legally enforceable. Given the Scottish ministry’s devolution ambitions, it could be argued that this is a politically motivated approach.