R. (on the application of Miller) v Secretary of State for Exiting the European Union

Post by S. Shah 
Yes, that’s right. This was ‘The Brexit Case’. The case which, especially if you were like me, you probably initially heard about while watching BBC Breakfast chomping your cereal and not giving more than two hoots about the whole matter. Turns out, this was the case that was pivotal to the UK’s future regarding its EU membership. It questioned the core authoritative power the UK government had to exercise its prerogative power. The mere existence of this case was targeted by all colours of opinions – especially misguided criticism – but despite this, it cannot be disputed that this case refreshed the necessity for the government to be kept in check. And rightly so. How’s that for a bombshell eh?

Miller was decided on 3 November 2016. The claimants were primarily Gina Miller and Deir Tozetti Dos Santos. The Secretary of State was the representative of the Crown acting through the government. Now, the bone the claimants had to pick with the Government (or at least, on this occasion) simply concerned their ‘right’ to use its powers to give formal notice to leave the European Union (EU). Can the government do this by themselves without reference to Parliament? This was the legal issue in the case, and naturally was up to the court to decide. To better understand the dynamics in Miller, it may be useful to briefly remind ourselves of the UK’s love affair with the EU, starting from day one.

The United Kingdom joined the European Communities (now known as the European Union) on the 1st January 1973 through the enactment of the European Committees Act 1972 (ECA 1972). As long as the courts of member states (in other words, countries part of the EU) accepted EU law and applied it, it operated as a form of law which is superior to all domestic law. Fast forwarding to 23 June 2016 we had our referendum that asked citizens of the UK the question: “should the UK remain a member of the European Union or leave the European Union”. And as I hope you know, the majority of us voted to leave. Wham, bam, thank you, goodbye!

The official withdrawal process from the European Union under the Treaty provisions of European Union is governed by Article 50 of the Treaty on European Union (TEU). This means that if a member state of the European Union wishes to leave, they must trigger this article and thus follow all necessary formalities.

As mentioned earlier, the main legal issue concerned in Miller, in regards to the constitutional law of the United Kingdom, whether the Crown is able to use its prerogative powers to give notice under Article 50 for the United Kingdom to no longer remain a member of the European Union without reference to Parliament. This question is judicable; for the courts to decide upon. This was common ground between the parties.

After much discussion and quality advocacy we can only expect from our fine British judiciary, the court reached a judgment. They found that the Secretary of State’s submission to be flawed as it contradicts two major constitutional principles: the Crown cannot use its prerogative powers to alter domestic law, and the Crown’s prerogative power operates only on the international plane. Therefore, it was held that the Crown cannot through the exercise of its prerogative powers alter the domestic law of the UK and modify rights acquired in domestic law under the European Communities Act 1972 or the other legal effects of that Act. The Crown cannot give notice under Article 50 without involving Parliament. What a mouthful.

A juicy case right? While we’re on the topic, let’s delve into what seems to be the power that everyone is talking about. Initially, prerogative power was a power only used by monarchs of the UK, hence the reference to the ‘Crown’. In contrast, nowadays prerogative power is considered a kind of residual power, meaning the government is able to use this power freely. However, as discussed in the Miller, it is common ground that in the UK’s constitution Parliament is sovereign and has the ability to freely legislate any law and change the law of the land in any way it wishes. Therefore, primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers. It is a fundamental principle that the executive government cannot diminish or abrogate rights under UK law using the Crown’s prerogative powers unless Parliament had given authority, expressly or by necessary implication from the terms of an Act of Parliament. With that said, the triggering of Article 50 comes with further processes and negotiations between the involved state and the EU; there is no immediate departure. It is therefore essential to understand the authority required to successfully trigger such a process which will affect millions of people’s individual rights in the UK. Parliament being the legislative body in the UK’s constitution will always be sovereign and to uphold this authority it is clear that Parliament is supreme over both the judiciary (courts) and the executive (government) bodies. It is for this reason that we can take from this thought-provoking case that:

> The executive Government is unable to give notice under Article 50 by using prerogative powers under the Crown without reference to Parliament

> However, the Crown in Parliament is sovereign and legislation enacted by the Crown with the consent of both Houses of Parliament is supreme

I am glad that I got the opportunity to write about such an involving case in modern British affairs. It just goes to show how awesome Great Britain really is with its adherence to the separation of powers doctrine that was highlighted by Aristotle thousands of years ago. I hope that readers can take away something from this case and get an insight to the inner workings of the judiciary and Government and appreciate that the English Legal System does arguably get it right once in a while.

The Government is for us, the people. Aw, bless ‘em!

S. Shah

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