A story of substance triumphing over form: R (on the application of Miller and others) v Secretary of State for Exiting the European Union [2017] UKSC 5

In a lengthy 97-page judgment (available here; see the press summary here), an 8-to-3 majority of the UK Supreme Court has upheld the determination of the Divisional Court of the High Court Queen’s Bench Division that notice under Article 50(2) of the Treaty on European Union (TEU) (the ‘triggering’ of Article 50) cannot be given without the consent of Parliament in the form of new legislation. Although this judgment was highly anticipated given its relation to the political earthquake that was the June 23, 2016 referendum vote in favour of Britain’s withdrawal from the EU, in some sense the political situation has moved on since the ruling against which the UK Government brought this appeal. The prevailing wisdom is that the UK Parliament will certainly not frustrate Theresa May’s government when it comes to triggering Article 50 because of concerns over the political legitimacy (or rather lack thereof) of Members of Parliament being seen to oppose the referendum outcome. Nevertheless, the Supreme Court’s decision does leave the door open — however politically fraught such action might be — for Parliamentary obstinacy/scrutiny (depending on one’s view) which may set back the government’s self-imposed deadline of a March notification under Article 50(2). Furthermore, as regards the development of the UK’s as yet quite modest (in terms of bulk if not in terms of quality) constitutional jurisprudence, the reasoning of the Supreme Court majority displays a welcome focus on matters of substance when it comes to the Court’s (admittedly limited) role in overseeing the operation of the UK’s so-called ‘unwritten constitution’.

In essence, the majority (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge) confirmed the reasoning that had been adopted by the High Court, albeit with a perceptible shift in emphasis between competing rationales. What united the Divisional Court and the majority in the Supreme Court was a refusal to view the effect of notification under Article 50(2) formalistically. While it is true that triggering that provision would not in itself bring about the repeal of the European Communities Act 1972 (the 1972 Act), the effect would be to force Parliament’s hand. If the substantive rights enjoyed under the 1972 Act were to continue being enjoyed (and some of these would inevitably be curtailed, e.g. participation in elections to the European Parliament) new parliamentary legislation would be necessary. This was impliedly accepted as the hallmark of legal change. For the legal status quo to be preserved in substance, new legislation would be required before the expiry of the two-year negotiation timetable set in motion by the notice given under Article 50. Change to the UK legal order is something which, under long-established UK constitutional principles, only Parliamentary legislation can achieve. While the power to make and unmake treaties is an equally long acknowledged power of the executive branch of government under the royal prerogative, that power rests upon the assumption that acts creating and ending legal obligations on the international plane would not have direct ramifications for the internal UK legal order — a consequence of the dualist nature of the UK constitution which requires ratified treaties to be implemented by Act of Parliament before they produce internal legal effects. The effect of the 1972 Act, which enabled the UK’s international obligations under the EU Treaties to be directly relied on within the UK legal order, inevitably undercut that presumption upon which the unfettered exercise of the prerogative had rested.

Where some perceptible distance opened up between the reasoning developed by the Divisional Court and that relied upon by the Supreme Court majority was in relation to the relevance of the legal rights that would supposedly be lost as an automatic consequence of Article 50(2) TEU being triggered. The Supreme Court majority — undoubtedly under some pressure from the submissions of counsel for the Secretary of State and Lord Reed’s carefully crafted dissenting opinion — was ambivalent on the question of whether this ‘loss’ of legal rights was determinative. It accepted that the effect of the 1972 Act was ‘ambulatory’ in nature in the sense that it gave rights within the UK legal order that corresponded to the UK’s obligations under the EU Treaties whatever those might be from time to time. The substantive rights enjoyed by virtue of the 1972 Act would clearly change in some respects over time by virtue of the law creating processes at work in the EU legal order. The form of the 1972 legislation showed clearly that this ambulatory character was envisaged and supported by Parliament when adopting that statute. In light of this, it became possible to argue that the changes resulting from the government withdrawing the UK from the EU Treaties are just some among the many possible changes to legal protections that are envisaged and impliedly authorised by the 1972 Act. It was precisely on this point that the Supreme Court majority perceived a need to bolster the arguments relied upon by the Divisional Court with ones that perceived the nature of the legal change in question in terms of the removal of a source of law, i.e. regardless of the effects on particular legal rights which arguably had always been susceptible to alteration on the existing authority of the 1972 Act. However, the majority preserved the same outcome as that arrived at by the Divisional Court by recognising that a decision that has the effect of removing a source of law from the UK legal order — a source that itself had been enshrined by Act of Parliament (i.e. the European Communities Act 1972) — is one that involves the kind of domestic legal change that can only be achieved by Act of Parliament.

While a different outcome could have been secured by Parliament when passing the 1972 Act, it was clear from its terms that that legislation had been adopted to give effect to EU law within the UK legal order and that the termination of that source had not been envisaged in that statute. Parliament having created this source of law within the UK legal order, it could only be subsequently removed by a further Act of Parliament. In contrast to the view of the Secretary of State, against this statutory background and purpose, clear words would have been required to enable the executive branch to unilaterally decide to withdraw the UK from the EU Treaties and thus bring to an end the internal recognition of this legal source. This was not a situation where clear words were required to remove or reduce an admitted prerogative power (reference here being made to dicta in Attorney General v De Keyser’s Royal Hotel [1920] AC 508); the prerogative power in this instance could not survive consistently with the purposes given legislative expression in the 1972 Act.

Reinforcing the majority’s view on the purposes of the 1972 Act and what could be taken to have been envisaged as regards the survival of the prerogative when passing that legislation was the fact that not all legal change with regard to the then new source of law was to be caught automatically by the ambulatory provisions in s.2 of the 1972 Act. Referring to s.1(2), it could be seen that when it came to the addition of new treaties adopted by the EU member states to those already within the scope of the term ‘EU Treaties’ used in the 1972 Act, further parliamentary legislation was required. Parliament had accordingly not withdrawn from all decision-making power in relation to the alterations of EU law that were to be given effect within the UK legal order. Provisions such as s.2(2) of the 1972 Act had enabled unilateral action by the executive branch of government in the form of secondary legislation for the purpose of implementing changes to EU law within UK law, but termination altogether of that source of law within the UK constitutional order was beyond the scope of the power that had been delegated by Parliament.

Lord Reed, giving a dissenting judgment with which Lord Hughes and Lord Carnwath agreed, was not persuaded by this analysis. While it is not possible here to do justice to the breadth of the reasoning developed in this dissent, it is clear that the minority was not persuaded by the distinction which allowed the majority to view an act (the triggering of Article 50 TEU) not in itself inconsistent with the terms of the European Communities Act 1972 as involving a change in the law of the UK to which Parliament would therefore have to consent. Reliance was also placed on the political accountability of government ministers (through their responsibility to Parliament) as one of a number of alternative ways in which Parliament and the democratic process more generally would be able to subject the process of withdrawal to scrutiny.

Clearly, the full judgment is a complex document that will be pored over exhaustively in the coming days and weeks. Other important issues were decided. Most significantly, it was held unanimously (in response to a reference from Northern Ireland) that the statutes regulating the devolution of self-governance powers to Northern Ireland, Scotland and Wales do not give the devolved institutions a veto over the decision to trigger Article 50 TEU. The Sewel Convention requires consultation with the devolved institutions on changes effected by the Westminster Parliament that would alter their competences, but the nature of the requirement under that convention was, in the Supreme Court’s view, political and as such fell outside the scope of judicial scrutiny.

The ramifications of the Supreme Court’s judgment have not been slow to emerge. Theresa May’s government has already published (26 January) a bill to be introduced into Parliament which will grant authorisation for the triggering of Article 50. The bill is terse in the extreme, running to a total of two clauses, only one of which is substantive in effect (for discussion in The Guardian, see here). Perhaps wisely, alongside the authorisation for the Prime Minister to notify the UK’s intent to withdraw from the EU under Article 50, the proposed bill also provides that it “has effect despite any provision made by or under the European Communities Act 1972” — an aspect which may have caused much embarrassment and further litigation if overlooked!

Will Odogwu, Lecturer and Tutor, British Law Centre

(Suggested citation: W.Odogwu, ‘A story of substance triumphing over form: R (on the application of Miller and others) v Secretary of State for Exiting the European Union [2017] UKSC 5’, BLC. Blog. (27th Jan 2017) (available at https://medium.com/obiter-dicta/))