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The question whether
the majority judgement in Miller is based on sound constitutional principle
confronts controversies surrounding Article 50 by distinguishing the
relationship between the statute and prerogative in the UK. Dicey defined the prerogative as ‘The residue of
discretionary or arbitrary authority, which at any given time is legally left
in the hands of the Crown’1. Article 50 was originally introduced by the
Lisbon Treaty in 2007 and empowers member states of the European Union to abjure
from the union in line with their own constitutional demands. The problem,
however, lies within the question whether the executive should be able to
exercise prerogative powers to set in motion Article 50. The 8:3 majority
relied upon the relationship between the EU and the UK law,
the operation of the European Communities Act 1972, and the scale of the
constitutional impact of EU membership as their three interlacing arguments. It is arguable that the majority
judgement in Miller is based on sound constitutional principle, however, there
are certain aspects that may be deemed unconstitutional within this reasoning.

The UK entered the European Union, formerly known as the
European Economic Community in 1973. This meant that European law took
precedence over UK law through the European Communities Act 1972 which was
passed by the UK Parliament immediately upon joining the EU. This essentially
led to the Parliament ”voluntarily” giving up its parliamentary sovereignty. The
United Kingdom does not have a codified constitution. Instead, the
so-called constitution of the UK is mainly contained in common law and Acts of
Parliament. There are three basic constitutional principles that make up the
constitution in the UK; Parliamentary sovereignty; rule of law, and separation
of powers. Rule of law is the principle that law should be the driving
mechanism of a nation, instead of being governed by decisions of individual
government ministers.

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The case began by setting out the position of the
Secretary of State, referencing whether the royal prerogative could be used to
trigger withdrawal from the treaties on the basis that a ‘Great Repeal Bill’
would repeal the 1972 Act. However, following the decision made in R
v Secretary of State for the Home Department, Ex p Fire Brigades Union 19952  ministers intentions are not law, and the
courts cannot proceed on the assumption that they will necessarily become law3. This
reflects the analogy of Lord Pannick QC when he said, ‘pulling the trigger
which causes the bullet to be fired, with the consequence that the bullet will
hit the target and the Treaties will cease to apply’4. This
issue anticipates the decision of Parliament. On this basis, it could be argued
that the judgement in Miller was based on sound constitutional principle; due
to the doctrine of Parliamentary supremacy, Parliament is and should be the
supreme law-making body which creates or ends any law. The government should
not be able to exercise its prerogative powers to trigger Article 50 as it
would be infringing on the sovereign power of the Parliament.

In the Case of Proclamations,
it was held that ‘the King by his proclamation or other ways cannot change any
part of the common law, or statute law, or the customs of the realm’5.
This can be reinforced by the fact
that Article 1 of the Bill of Rights 1689 sets out the limits of the monarch
and the right of Parliament. This means the Crown cannot do anything that would
infringe on the right of Parliament as it would be deemed unconstitutional. The
Supreme court with a majority of 8:3 ruled that the government cannot trigger
Article 50 without an Act of Parliament authorising it to do so. This would
support the argument that the judgement in Miller was based on correct
application of constitutional law because the majority upheld Parliamentary
sovereignty and the rule of law.

Furthermore, the
argument that the majority judgement in Miller lies within the scope of
constitutional principles is supported by the case of Thoburn v Sunderland City
Council6.
Lord Justice Laws argued obiter that the European Communities Act 1972 could
not be impliedly repealed, because it belonged to a category of statutes
recognised by the common law as ”constitutional”. Thoburn leads to the
conclusion that the Prime Minister may not invoke Article 50 unless expressly
authorised to do so by an Act of Parliament. Similarly, in R v (Shindler) v
Chancellor of the Duchy of Lancaster 20167
Lord Dyson MR stated that ”Parliament agreed to join the EU by exercising
sovereign powers untrammelled by EU law and I think it would expect to be able
to leave the EU in the exercise of the same untrammelled sovereign power”. Both
cases are in favour of Parliamentary sovereignty. Because Parliament was originally responsible for passing
the European Communities Act 1972, it is reasonable to assume that it should be
able to put forward Article 50, not through the use of prerogative powers by
the Prime Minister. Therefore, the majority judgement was based on sound
constitutional principle because it supports Parliamentary sovereignty.

Additionally, ‘the
rejection of strict dualism enabled the Supreme Court to capture more of the
legal realities of what we might call the Factortame era’8.
Dualism is the idea that ministers can agree to international treaties, but
they cannot affect domestic law or rights. The case of R (Factortame Ltd) v
Secretary of State for Transport9 concerned
the relationship between the UK Parliament and EU law. The outcome was that EU
law is not only a source of UK law but also takes precedence over it. As a
result, it can be argued that only Parliament has the power to withdraw from
the EU, hence the argument that the judgement in Miller was right legally and
constitutionally.

Finally, in the case
of Attorney-General v De Keyser’s Royal Hotel Ltd 192010 it
was held that if the government is granted the power to do something by
legislation, and is permitted to do so under the prerogative, then the
statutory power has superiority over that prerogative power, thence the Crown
cannot go against that statute. In this instance, the argument that Article 50
will eventually repeal the European Communities Act 1972 supports the view that
prerogative power cannot be used to trigger Article 50. On this basis, the
majority judgement would be based on sound constitutional principles as it defends
the rule of law. This was also the case in the case of The Zamora 191611 where
the judgement was that ‘the idea that the King in Council, or indeed any branch
of the Executive has power to prescribe or alter the law to be administered by
Courts of law in this country is out of harmony with the principles of our
constitution.’ The prerogative powers of the Crown are exercisable by the
executive, i.e. by ministers who are answerable to UK Parliament. However,
according to the principles entrenched in the 17th century, the
extent of these powers must be in accordance with common law and legislation.
If it was not, ministers would be changing the law, which would be
unconstitutional. Entrenchment is a provision that makes it more difficult or
almost impossible to change certain amendments. Overruling an entrenched clause
may require a supermajority, a referendum or the consent of the majority party.
Thus, the decision made in Miller was correct because, as previously
illustrated by case law, the rule of law and Parliamentary sovereignty take
supremacy over any other provision i.e. royal prerogative.

Contrastingly, the judgement in Miller was not based on the correct
application of constitutional law. One of the three judges (Lord Reed) who
voted in favour of prerogative powers said, ‘there is no legal requirement for
the Crown to seek Parliamentary authorisation for the exercise of the power,
except to the extent that Parliament has so provided by the statute’12.
Therefore, it can be said that the majority judgement voting against the use of
prerogative powers was not based on sound constitutional principle, as there is
no statute as such that requires Article 50 to be triggered by Parliament. In the
case of Blackburn v Attorney-General 197113
it was held that treaty-making powers rest in the Crown, acting on the advice
of its ministers and their actions cannot be challenged by the courts.

In addition, the mere
argument that the 2016 Referendum to leave the EU has no legal effect is
significant because the European Referendum Act 2015 was deemed to be solely
advisory. According to Lord Hughes ‘no-one suggests that the referendum by
itself has the legal effect that a Government notice to leave the EU is made
lawful’14. As
a result, the government should be able to exercise its prerogative power to
withdraw from the EU as the referendum was not ”legally binding”. As a
result, we could disagree with the majority judgement in Miller claiming that
it was not based on sound constitutional principle because there is no legal
restriction which prevents the government using prerogative powers, so it would
be unconstitutional to challenge this power in this case.

Moreover, ‘the
prerogative power over foreign relations, including the making and unmaking of
treaties, was a fundamental part of the UK constitutional order, which could
only be curtailed expressly or by necessary implication’15. This
links to the fact that the European Communities Act 1972 did not set out any limitations
on the Crown’s prerogative power. Therefore, the Act did not affect the ability
to exploit prerogative powers by the Crown with regards to the relationship
between the UK and EU. This reflects the question whether the judgement in
Miller was based on sound constitutional principles, as the majority in Miller
agreed that the government should not be able to exercise prerogative powers to
trigger Article 50. Nevertheless, there is no such clause in the European
Communities Act 1972 that prohibits the use of this power. Also, ‘the objection is unsound because an intent to restrict
prerogative powers to withdraw from the EU does not follow from s.1(3) ECA. Section 1(3) ECA did not impose a legal condition on prerogative action
on the international plane’16.
This also proves that the government should be allowed to use its prerogative
power to trigger Article 50 because there was no explicit limitation on the use
of prerogative powers.

Lastly, the majority
judgement in Miller was not based on sound constitutional principle because as Lord
Carnwath stated in his dissenting speech; Article 50 is a mere start of a ‘negotiating
and decision-making process’.17 Based
on this, it could be argued that Article 50 is not a piece of legislation that
would hinder Parliamentary supremacy if the government used the prerogative
power to trigger it. This is because it will not affect any laws within the UK,
its main purpose is to negotiate an appropriate deal to withdraw from the EU.
Therefore, it could be suggested that the majority judgement was not based on
sound constitutional principle, as the majority declared that it would be
unconstitutional for the executive to use its prerogative power to trigger
Article 50.

Overall, the
majority judgement in Miller arguably goes against sound constitutional
principles; open to criticisms and lacking in purpose. Ultimately, however,
this is not the case when we look at the doctrine of Parliamentary sovereignty
and rule of law. This is because, as aforementioned, the UK joined the EU by
passing the European Communities Act 1972 through Parliament. The judgement in
Miller aims to uphold the rule of law by rejecting the argument that the
executive should be able to use its prerogative power to trigger Article 50. Reflecting
on Lord Carnwath’s quote, Article 50 is not simply an agreement to negotiate
the terms of withdrawal, as it gives ministers excessive power; as Charles
McIlwain highlights: ‘the referendum really comes, the sovereign Parliament
must go.’18
Thus, this would weaken Parliamentary sovereignty which would undermine the
traditional constitutional principles. For these reasons, the majority
judgement was based on sound constitutional principles and Parliamentary
sovereignty was worth defending.

1 D | From A V
Dicey, ‘Introduction to the Study of the Law of the Constitution’ (10th
edition, 1959, p424)

2 2 AC 513, 552

3 R (on the application of Miller and another)
(Respondents) v Secretary of State for Exiting the European Union (Appellant)
2017 UKSC 5 35

4 R (on the application
of Miller and another) (Respondents) v Secretary of State for Exiting the
European Union (Appellant) 2017 UKSC 5 36

5  Case of Proclamations (1610)
12 Co. Rep. 74

6 Thoburn v Sunderland
City Council and Hunt v London Borough of Hackney etc (2002) EWHC 195 Admin

7 3 WLR 1196, para 58

8 Thomas Poole, Devolution to legalism: on the
Brexit case, 2017, M.L.R. 2017,
80(4), 696-710

9 (No 2) 1991 1 AC
603 and (No 5) 2000 1 AC 524

10 A.C. 508, H.L.

11 2
AC 77,90 (Lord Parker)

12 R (on the application of Miller and another)
(Respondents) v Secretary of State for Exiting the European Union (Appellant)
2017 UKSC 5 (Lord Reed) 161

13 C.M.L.R 784 (Lord
Denning)

14 R (on the application of Miller and another)
(Respondents) v Secretary of State for Exiting the European Union (Appellant)
2017 UKSC 5 (Lord Hughes) 275

15 Paul Craig, Miller,
structural constitutional review and the limits of prerogative power, 2017,
P.L. Nov Supp (Brexit Special Extra Issue 2017), 48-72

16 Barczentewicz,
“The core issue in Miller” (4 January 2017), Policy Exchange/Judicial
Power Project, pp.16–17.

17 Lord Carnwath (dissenting) in R
(Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5,
259.

18 C. H. McIlwain, The
High Court of Parliament and Its Supremacy: An Historical Essay on the
Boundaries between Legislation and Adjudication in England (New
Haven, Ct: Yale University Press, 1910) xv.

 

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