Is the majority judgement in Miller based on sound constitutional principle?

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The majority judgement of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union[1] has been the source of much debate following the United Kingdom’s (UK) decision to withdraw from the European Union (EU) in a national referendum. The majority held that the Executive could not exercise its prerogative powers on the international plane to give notification of withdrawal under Article 50 of the Lisbon Treaty[2] without prior parliamentary consent. However, the minority judges, Lords Reed, Carnwath and Hughes, made powerful dissenting arguments which have given rise to the question as to whether the majority judgement is based on sound constitutional principle. The term ‘constitutional principle’ is typically defined as fundamental doctrines and values which underpin the UK’s constitutional order. This essay will consider various constitutional principles, including the doctrines of parliamentary sovereignty and the separation of powers; and the principle recognised by common law whereby prerogative powers cannot be exercised to alter domestic law. The Royal Prerogative is defined by the majority as ‘the residue of powers which remain vested in the Crown’ and are exercisable by ministers.[3] The devolution issue will also be considered in relation to the principle which affirms constitutional conventions as political and non-justiciable in nature, and are regarded as ‘binding in operation but not in law’.[4] It is therefore worth asking whether, in applying these fundamental constitutional principles, the majority’s decision is ‘sound’ and withstands scrutiny. This essay will argue that although the majority judgement can be criticised on various grounds due to its perceived ‘contorted logic’,[5] it is based overall on sound constitutional principle.

The doctrine of parliamentary sovereignty and the principle that the Royal Prerogative cannot modify domestic laws, both of which are closely intertwined, were correctly applied by the majority. The constitutional jurist A.V. Dicey defines parliamentary sovereignty as a principle by which the Westminster Parliament is competent to enact any legislation that is irreversible by the Executive or the judiciary.[6] This definition is helpful in explaining the claimants’ main argument in Miller. They claimed that, unless statute so expressly provided, the Executive was not entitled to exercise the Royal Prerogative on the international plane if doing so would have the effect of altering domestic law.[7] However, the Secretary of State for Exiting the European Union contended that notification of withdrawal from the EU Treaties fell within the prerogative power to enter and terminate treaties without parliamentary consent.[8] The majority rejected this assertion by applying the principle that the exercise of prerogative powers cannot alter domestic law. This principle derives its historical origins from the Case of Proclamations,[9] in which Sir Edward Coke CJ stated that ‘the King by his proclamation…cannot change any part of the common law, or statute law, or the customs of the realm’.[10] However, Lord Carnwath claimed that notification of withdrawal ‘does not purport to…change any laws or affect any rights’.[11] This was supported by Lord Reed, who argued that Parliament reserves competence to enact ‘provisions designed to protect rights which are currently derived from EU law’.[12] Whilst both dissenting judges make valid points, Paul Craig contends that they ‘would radically undermine the principle [developed] in Proclamations’.[13] This is because the Executive could alter domestic law on the basis that Parliament could legislate to preserve rights secured by the European Communities Act 1972 (the 1972 Act)[14] after the exercise of the Royal Prerogative.[15] It follows from this that if Parliament allowed the Executive to radically alter citizens’ rights under the 1972 Act without its consent, the doctrines of parliamentary supremacy and the separation of powers would be subverted without due democratic process. Therefore, the majority judgement is based on sound constitutional principle by upholding the doctrines of parliamentary sovereignty and the separation of powers.

The principle that prerogative powers cannot alter domestic law was affirmed by Lord Parmoor in De Keyser’s Royal Hotel,[16] where he stated that ‘the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament’ when it is given statutory power to interfere with citizens’ rights.[17] Parmoor’s reasoning was developed by the majority, who held that as the EU Treaties are ‘direct sources’[18] of UK domestic law due to s.2(1) of the 1972 Act,[19] Parliament could not have ‘intended that ministers could…withdraw from the EU Treaties without prior Parliamentary approval’ and interfere with citizens’ rights.[20] However, Lord Reed rejected the majority’s application of the De Keyser principle, and claimed that it does not follow ‘that a prerogative power cannot be exercised where the eventual consequence will be that a statutory provision will cease to have a practical application’.[21] It can be argued that Reed’s claim is illogical, since rights given domestic effect by the 1972 Act will be lost after the Act is no longer effective. This explains why Paul Craig contends that the majority developed the principle that domestic law cannot be altered through the prerogative, which extends to ‘the EU as a source of law, and rights emanating from EU law’.[22] Craig highlights that the majority has developed the doctrine of the separation of powers to prevent interference with citizens’ rights under the 1972 Act by the Executive. This can be seen in the majority’s reasoning that exercising prerogative powers to withdraw from the EU Treaties ‘would be inconsistent with…fundamental principle for such a far-reaching change to the UK constitutional arrangements to be brought about by…ministerial action alone’.[23] However, this reasoning could illustrate that the majority judgement is not based on sound constitutional principle. Richard Ekins stresses that the majority fails to cite legal precedent to sustain their argument because no ‘principle of our constitution requires major change to be realised by primary legislation’.[24] This could demonstrate that the majority judgement fails to withstand scrutiny, as it lacks valid constitutional grounds on which to support its reasoning. This argument can be further reinforced by the majority’s rejection of the argument that the omission of the prerogative power to conduct foreign relations in the 1972 Act justified ‘inferring a fundamental change in the law’.[25] Ekins contends that the majority has taken ‘the silence of the 1972 Act to work…a major constitutional change’ in abrogating the prerogative power to conduct foreign relations,[26] which emphasises the notion that the majority has confused ‘constitutional practice with valid constitutional law’.[27] The constitutional implications of the majority judgement is best expressed by David Feldman, who contends that ‘the majority’s approach to statutory interpretation [could] allow unprecedented freedom’ for the courts to ‘read unjustifiable restrictions on governmental conduct of affairs into legislation’.[28] Feldman’s assertion demonstrates that the Supreme Court has appeared to have unintentionally gone beyond its constitutional remit to undermine the doctrine of the separation of powers, which in turn could illustrate that the majority’s judgement cannot be based on sound constitutional principle.

Despite these persuasive criticisms of the majority judgement, there are reasons to suggest that the majority bases its reasoning on sound constitutional principle. For instance, the majority rejected Lord Reed’s claim that there was no provision in the 1972 Act which precluded the Executive from giving notification of withdrawal from the EU. Paul Craig also criticises Reed’s argument, which is ‘inconsistent with the principle from Proclamations and the Bill of Rights’.[29] This is demonstrated by the majority’s application of the constitutional principle which binds the exercise of all prerogative powers, which cannot alter domestic legislation or rights unless such a principle is expressly displaced by statute. This principle is consistent with the ratio held in Ex p. Simms[30], in which Lord Hoffman stated that ‘fundamental rights cannot be overridden by general…words [in a statute] because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process’.[31] This reasoning was developed by the majority in relation to the 1972 Act. Although the Act did not expressly abrogate the Executive’s prerogative power to withdraw from the EU Treaties, the majority extended the Simms principle limiting the Royal Prerogative to include omissions in statutes. This is significant because the majority has developed constitutional principle to uphold the doctrine of parliamentary sovereignty by giving effect to the intention of Parliament in the 1972 Act. This highlights the argument that overall, the majority judgement is based on sound constitutional principle.

The principle whereby constitutional conventions are political in nature and cannot be enforced by the courts was also considered by the majority in relation to the devolution issue. The devolution issue was concerned with the legal implications of notification of withdrawal on the Sewel Convention, according to which the Westminster Parliament ‘will not normally legislate on devolved matters without the consent of the devolved legislatures’.[32] Despite the fact that withdrawal from the EU Treaties would vary the competences of the devolved administrations, the majority held that the UK’s relations with the EU was a reserved matter for the Westminster Parliament, and that the consent of the devolved settlements was not required before notification of withdrawal.[33] Although the Convention was incorporated into statute when Parliament amended the Scotland Act 1998 in 2016,[34] Tom Mullen contends that the majority did not allow the Act to ‘impose a legal restraint’ on ‘a UK Government’s desire to legislate within devolved competence’.[35] This has clear constitutional implications because the majority may have allowed the Executive to breach the Sewel Convention by refusing to prevent the loss of devolved competences and by legislating on constitutional matters relevant to the devolved administrations without their consent. The majority also held that the Convention was a political convention and could not therefore ‘give legal rulings on its operation or scope’.[36] Whilst the majority is correct to assert the principle that political conventions are non-justiciable in nature, this has been subject to much criticism. Mark Elliott contends that the majority has taken ‘a strikingly narrow view of the proper extent of judicial engagement with conventions’.[37] This is because the majority judgement ‘sits uncomfortably with existing case law’[38], such as with Evans.[39] This was a case in which a journalist sought disclosure of Prince Charles’ letters to various Government ministers under the Freedom of Information Act 2000.[40] However, the Government refused to comply and argued that the ‘education convention’, whereby the Prince was entitled to be instructed in the business of government, extended to correspondence between the Prince and ministers. Although the Upper Tribunal did find the existence of such a convention, it did not require the letters to be treated as confidential and authorised their publication. This judgement directly contradicts the majority’s ‘absolutist position it had taken on conventions’[41] because the Upper Tribunal had ruled on the operation and scope of a political convention. Nonetheless, the majority judgement was correct in affirming the principle that reinforces the political and non-justiciable nature of constitutional conventions. This is because conventions are important for reinforcing political accountability before Parliament, not before the courts. Therefore, it can be said that the majority judgement is overall based on sound constitutional principle.

It is evident that overall, the majority judgement is based on sound constitutional principle. In applying the principle that domestic law cannot be altered by the Royal Prerogative, as well as the fundamental doctrines of parliamentary sovereignty and the separation of powers, the majority was constitutionally correct to assert that the Executive could not use its prerogative powers to initiate the withdrawal process under Article 50. Although the majority judgement has been criticised on various grounds by the dissenting judges and legal commentators for its questionable logic and lack of legal authority, it has been crucial in the development of sound constitutional principle. This is mainly because the majority has expanded constitutional principles to support its reasoning in a case without precedent. The importance of the principle that constitutional conventions are non-justiciable in nature also cannot be understated. Although the majority judgement can be criticised for its lack of consideration regarding conventions in relation to the devolution issue, it was correct to affirm the importance of political accountability before Parliament. Overall, the majority judgement is based on sound constitutional principle.


Bibliography

  • Craig P, ‘Miller, structural constitutional review and the limits of prerogative power’ [2017] PL 48
  • Dicey AV, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund Inc 1982), ch 1, 38
  • Ekins R, ‘Constitutional practice and principle in the article 50 litigation’ [2017] LQR 347
  • Elliott M, ‘The Supreme Court’s judgement in Miller: in search of constitutional principle’ [2017] CLJ 257
  • Feldman D, ‘Pulling a trigger or starting a journey? Brexit in the Supreme Court’ [2017] CLJ 217
  • MacAmhlaigh C, ‘Miller: the prerogative and constitutional change’ [2017] Edin LR 448
  • Mullen T, ‘The Brexit case and constitutional conventions’ [2017] Edin LR 442
  • The Cabinet Office, The Cabinet Manual (1 edn, The Cabinet Office 2011) 3

Table of Cases

  • De Keyser’s Royal Hotel Ltd, Re [1920] AC 508
  • R (Evans) v Information Commissioner [2015] UKUT 382 (AAC)
  • R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583
  • R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115
  • The Case of Proclamations [1610] EWHC KB J22, (1611) 12 Co Rep 74, 77 ER 1352

Table of Legislation

  • European Communities Act 1972
  • Freedom of Information Act 2000
  • Scotland Act 1998
  • Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01

[1] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583.

[2] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306/01.

[3] Miller (n 1) 633.

[4] The Cabinet Office, The Cabinet Manual (1 edn, The Cabinet Office 2011) 3.

[5] Cormac MacAmhlaigh, ‘Miller: the prerogative and constitutional change’ [2017] Edin LR 448, 448.

[6] AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund Inc 1982), ch 1, 38.

[7] Miller (n 1) 624.

[8] ibid.

[9] The Case of Proclamations [1610] EWHC KB J22, (1611) 12 Co Rep 74, 77 ER 1352.

[10] ibid.

[11] Miller (n 1) 691.

[12] Miller (n 1) 680.

[13] Paul Craig, ‘Miller, structural constitutional review and the limits of prerogative power’ [2017] PL 48, 64.

[14] European Communities Act 1972.

[15] Paul Craig, ‘Miller, structural constitutional review and the limits of prerogative power’ [2017] PL 48, 64.

[16] De Keyser’s Royal Hotel Ltd, Re [1920] AC 508.

[17] ibid 575.

[18] Miller (n 1) 637.

[19] European Communities Act 1972, s 2(1).

[20] Miller (n 1) 642.

[21] ibid 683.

[22] Paul Craig, ‘Miller, structural constitutional review and the limits of prerogative power’ [2017] PL 48, 52.

[23] Miller (n 1) 643.

[24] Richard Ekins, ‘Constitutional practice and principle in the article 50 litigation’ [2017] LQR 347, 351.

[25] Miller (n 1) 650.

[26] Richard Ekins, ‘Constitutional practice and principle in the article 50 litigation’ [2017] LQR 347, 352.

[27] ibid 351.

[28] David Feldman, ‘Pulling a trigger or starting a journey? Brexit in the Supreme Court’ [2017] CLJ 217, 223.

[29] Paul Craig, ‘Miller, structural constitutional review and the limits of prerogative power’ [2017] PL 48, 62.

[30] R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.

[31] ibid, 131.

[32] Tom Mullen, ‘The Brexit case and constitutional conventions’ [2017] Edin LR 442, 442.

[33] Miller (n 1) [129], [150].

[34] Scotland Act 1998, s 28(8).

[35] Tom Mullen, ‘The Brexit case and constitutional conventions’ [2017] Edin LR 442, 447.

[36] Miller (n 1) 659.

[37] Mark Elliott, ‘The Supreme Court’s judgement in Miller: in search of constitutional principle’ [2017] CLJ 257, 276.

[38] ibid.

[39] R (Evans) v Information Commissioner [2015] UKUT 382 (AAC).

[40] Freedom of Information Act 2000.

[41] Tom Mullen, ‘The Brexit case and constitutional conventions’ [2017] Edin LR 442, 446.

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