Professor Steve Peers
The UK Supreme Court recently issued its judgment in the Miller case (and a similar Northern Ireland case) regarding the UK’s exit from the EU. This post will summarize the judgment’s main points and examine its implications for Brexit and Parliament’s role. Professor Mark Elliott has already provided a thorough legal analysis, which can be found elsewhere.
The case revolves around two central issues: Parliament’s role in initiating Article 50 and the role of devolved legislatures. We’ll address these points separately, mirroring the Supreme Court’s approach.
Role of Parliament
The Supreme Court emphasized that its ruling was not about the merits of Brexit or its implementation details. Instead, it focused solely on which UK political entities have the authority to formally notify the European Union of the UK’s intent to withdraw under Article 50, thus starting the Brexit clock. The key question was whether the government, using the historical “Royal prerogative,” could initiate the process unilaterally or whether Parliament’s involvement was required.
The Royal prerogative empowers the British executive to handle matters like treaty negotiation, ratification, and withdrawal. However, international treaties lack domestic legal force without an Act of Parliament. Generally, the Royal prerogative cannot grant or remove individual rights. Considering that the UK’s EU membership is primarily governed by an Act of Parliament, the European Communities Act, is an Act of Parliament (or some form of Parliamentary consent) necessary to authorize the government to trigger the process of removing those rights?
The Supreme Court, by an 8-3 majority, determined that Parliamentary consent was indeed necessary. They based this decision on the unique nature of EU law – a “dynamic” system where new laws created by EU institutions become part of the UK’s domestic law mainly through the European Communities Act.
The Supreme Court emphasized several crucial points in its reasoning. First, it stated explicitly that it wasn’t ruling on whether an Article 50 notification could be revoked after being sent or whether any conditions could be attached to it. This differs from the High Court, which accepted the parties’ agreement that the withdrawal notice couldn’t be revoked.
This distinction is important because some advocate for Parliament or the public to have the option of withdrawing the Article 50 notice, allowing the UK to remain in the EU once the final withdrawal agreement’s terms are known. This would only be possible if Article 50 is indeed revocable – though an alternative route might involve indefinitely suspending the two-year timeframe for leaving the EU.
A case will soon be brought before Irish courts on this point, seeking clarification from the European Court of Justice (ECJ). The Irish courts, or any other Member State’s courts, no longer need to worry about potential conflicts arising from disagreeing with UK courts on this matter. Additionally, if the revocability issue reaches a UK court, any lower court, recognizing that the Supreme Court intentionally left the issue open, can reconsider it.
The Supreme Court also addressed the argument that EU law membership had superseded parliamentary sovereignty. It noted that EU law’s applicability in the UK stems from Parliament’s agreement through the European Communities Act, implying that Parliament could always limit or eliminate this domestic effect of EU law if it desired.
Furthermore, the Court ruled that Parliament’s involvement in incorporating EU law into British law, by replacing the European Communities Act with a proposed “Great Repeal Act,” didn’t replace its role in triggering Article 50. Its discussion of the European Union Act 2011 didn’t directly address the argument that this act mandates another referendum before leaving the EU. The judges affirmed that the referendum result is not legally binding, although acknowledging its political significance. Finally, they emphasized the need for legislation (an Act of Parliament) to trigger Article 50, meaning Parliament will have greater influence on the outcome.
Devolved legislatures
Regarding the UK’s devolved legislatures in Scotland, Northern Ireland, and Wales, the Supreme Court made three key rulings. Firstly, it determined that provisions in Westminster legislation requiring these bodies to comply with EU law do not necessitate their consent for the UK’s EU withdrawal. Secondly, it stated that the “Sewel Convention” – the informal constitutional principle that Westminster typically avoids legislating in devolved areas without devolved legislatures’ approval – was not legally binding. Lastly, it ruled that the Good Friday Agreement didn’t address the Brexit issue.
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What are the implications of this judgment for Brexit and parliamentary democracy? For Brexit, the government must now secure Parliament’s approval through an Act to trigger Article 50, with a bill planned for this purpose. Passing a bill requires majority support in both Houses of Parliament. While it’s unlikely that a majority of MPs would oppose triggering Article 50 given the referendum result, the bill could be subject to amendments, although the government may argue against amending its concise and focused bill.
Opposition parties will undoubtedly try to introduce amendments. The Labour party has announced plans for several amendments; the Scottish National Party intends to table 50 amendments; and the Liberal Democrats will propose a referendum on the final UK-EU agreement. In the House of Commons, the combined opposition would need approximately ten Conservative MPs to side with them to pass any amendment. The House of Lords must also approve the bill.
One crucial amendment is essential: ensuring that an Act of Parliament is required to ratify the UK-EU Brexit deal. This would empower Parliament in 2019 to decide the course of action from the available options.
Anticipating a popular amendment, the government has conceded to publishing a Brexit White Paper. However, there are concerns that the White Paper will only be released after much of the parliamentary scrutiny is complete. Additionally, it’s been suggested that an impact assessment would be more beneficial.
While the Miller judgment shifts the Brexit debate from the courts to Parliament, legal proceedings aren’t entirely over. The Irish case concerning the potential revocability of Article 50 will soon commence, and the Miller ruling remains neutral on this issue.
Moreover, the ruling strengthens the argument in another case (Wilding and others) that Parliament must also vote on whether the UK should leave the European Economic Area (EEA), a separate treaty extending the EU single market to some non-EU nations. The Miller judgment, by confirming the advisory nature of the referendum result, supports the argument that leaving the EEA requires separate Parliamentary approval.
Regarding the judgment’s broader impact, it consistently positions the Westminster Parliament at the heart of the Brexit debate. By rejecting the use of the Royal prerogative to trigger Article 50, the ruling empowers Parliament to set conditions on the executive’s handling of Brexit negotiations, ensuring a broader public discourse. By affirming the non-binding nature of the referendum result, it ensures that legal authority rests with elected Members of Parliament – along with unelected Lords – rather than the general public. By asserting that devolved assemblies lack a veto over Brexit, it solidifies Westminster’s decisive role in national political discussions. Miller brought to light significant tensions within British constitutional law concerning direct versus representative democracy; Parliament versus the executive; and devolved powers versus UK-wide governance. The consistent answer to each question was: the Westminster Parliament.
Of course, practical limitations exist on Westminster’s legal authority, and the judgment acknowledges this. The referendum’s outcome carries undeniable political weight, as does the convention of seeking input from devolved assemblies – even though the government has already disregarded their views and plans to proceed against the majority’s wishes in Scotland and Northern Ireland. The executive also holds considerable sway over Parliament’s proceedings.
Despite these limitations, the judgment undoubtedly restores some control over Brexit to Parliament. The outcome of the Article 50 bill debate, along with the upcoming “Great Repeal Bill” battle, will reveal the extent of Parliament’s influence as Brexit unfolds.
Despite criticism from some constitutional lawyers regarding the judgment’s technical aspects, it embodies the traditional spirit of the UK constitution and Parliament’s historical role in British politics. While concerns about Parliament’s potential shortcomings are valid, its current pivotal role in shaping key aspects of Brexit is a positive development.
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Photo credit: the Telegraph