The question whether the majority judgementin Miller is based on sound constitutional principle confronts controversiessurrounding Article 50 by distinguishing the relationship between the statuteand prerogative in the UK. Dicey defined the prerogative as ‘The residue of discretionary or arbitraryauthority, which at any given time is legally left in the hands of the Crown’1.Article50 was originally introduced by the Lisbon Treaty in 2007 and empowers memberstates of the European Union to abjure from the union in line with their ownconstitutional demands. The problem, however, lies within the question whetherthe executive should be able to exercise prerogative powers to set in motionArticle 50. The 8:3 majority relied upon the relationship between the EU andthe UK law, the operation of the European Communities Act 1972, and the scaleof the constitutional impact of EU membership as their three interlacingarguments. It is arguable that the majority judgement in Miller is based onsound constitutional principle, however, there are certain aspects that may bedeemed unconstitutional within this reasoning. The UK entered the European Union, formerlyknown as the European Economic Community in 1973.
This meant that European lawtook precedence over UK law through the European Communities Act 1972 which waspassed by the UK Parliament immediately upon joining the EU. This essentiallyled to the Parliament ”voluntarily” giving up its Parliamentary sovereignty. TheUnited Kingdom does not have a codified constitution.
Instead, the so-calledconstitution of the UK is mainly contained in common law and Acts ofParliament. There are three basic constitutional principles that make up theconstitution in the UK; Parliamentary sovereignty; rule of law, and separationof powers. Rule of law is the principle that law should be the drivingmechanism of a nation, instead of being governed by decisions of individualgovernment ministers.
The case began by setting out the position ofthe Secretary of State, referencing whether the royal prerogative could be usedto 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 vSecretary of State for the Home Department, Ex p Fire Brigades Union 19952 ministers intentions are not law, andthe courts cannot proceed on the assumption that they will necessarily becomelaw3.This reflects the analogy of Lord Pannick QC when he said, ‘pulling the trigger which causes the bulletto be fired, with the consequence that the bullet will hit the target and theTreaties will cease to apply’4.Thisissue anticipates the decision of Parliament.
On this basis, it could be arguedthat the judgement in Miller was based on sound constitutional principle; dueto the doctrine of Parliamentary supremacy, Parliament is and should be thesupreme law-making body which creates or ends any law. The government shouldnot be able to exercise its prerogative powers to trigger Article 50 as itwould be infringing on the sovereign power of the Parliament.In the Case of Proclamations, it was heldthat ‘the King by his proclamation or other ways cannot change any part of thecommon 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 setsout the limits of the monarch and the right of Parliament. This means the Crowncannot do anything that would infringe on the right of Parliament as it wouldbe deemed unconstitutional. The Supreme court with a majority of 8:3 ruled thatthe government cannot trigger Article 50 without an Act of Parliamentauthorising it to do so. This would support the argument that the judgement inMiller was based on correct application of constitutional law because themajority upheld Parliamentary sovereignty and the rule of law.Furthermore, the argument that the majorityjudgement in Miller lies within the scope of constitutional principles issupported by the case of Thoburn v Sunderland City Council6.Lord Justice Laws argued obiter that the European Communities Act 1972 couldnot be impliedly repealed, because it belonged to a category of statutesrecognised by the common law as ”constitutional”. Thoburn leads to theconclusion that the Prime Minister may not invoke Article 50 unless expresslyauthorised to do so by an Act of Parliament. Similarly, in R v (Shindler) vChancellor of the Duchy of Lancaster 20167Lord Dyson MR stated that ‘Parliament agreed to join the EU by exercisingsovereign powers untrammelled by EU law and I think it would expect to be ableto leave the EU in the exercise of the same untrammelled sovereign power’.
Bothcases are in favour of Parliamentary sovereignty. Because Parliament wasoriginally responsible for passing the European Communities Act 1972, it isreasonable to assume that it should be able to put forward Article 50, notthrough the use of prerogative powers by the Prime Minister. Therefore, themajority judgement was based on sound constitutional principle because itsupports Parliamentary sovereignty. Additionally, ‘the rejection of strictdualism enabled the Supreme Court to capture more of the legal realities ofwhat we might call the Factortame era’8.Dualism is the idea that ministers can agree to international treaties, butthey cannot affect domestic law or rights. The case of R (Factortame Ltd) vSecretary of State for Transport9concerned the relationship between the UK Parliament and EU law. The outcomewas that EU law is not only a source of UK law but also takes precedence overit.
As a result, it can be argued that only Parliament has the power towithdraw from the EU, hence the argument that the judgement in Miller was rightlegally and constitutionally. Finally, in the case of Attorney-General v DeKeyser’s Royal Hotel Ltd 192010it was held that if the government is granted the power to do something bylegislation, and is permitted to do so under the prerogative, then thestatutory power has superiority over that prerogative power, thence the Crowncannot go against that statute. In this instance, the argument that Article 50will eventually repeal the European Communities Act 1972 supports the view thatprerogative power cannot be used to trigger Article 50. On this basis, themajority judgement would be based on sound constitutional principles as it defendsthe rule of law. This was also the case in the case of The Zamora 191611where the judgement was that ‘the idea that the King in Council, or indeed anybranch of the Executive has power to prescribe or alter the law to beadministered by Courts of law in this country is out of harmony with theprinciples of our constitution.’ The prerogative powers of the Crown areexercisable by the executive, i.e. by ministers who are answerable to UKParliament.
However, according to the principles entrenched in the 17thcentury, 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 beunconstitutional. Entrenchment is a provision that makes it more difficult oralmost impossible to change certain amendments. Overruling an entrenched clausemay require a supermajority, a referendum or the consent of the majority party.Thus, the decision made in Miller was correct because, as previouslyillustrated by case law, the rule of law and Parliamentary sovereignty takesupremacy over any other provision i.e. royal prerogative.Contrastingly, the judgement in Miller wasnot based on the correct application of constitutional law.
One of the threejudges (Lord Reed) who voted in favour of prerogative powers said, ‘there is nolegal requirement for the Crown to seek Parliamentary authorisation for theexercise of the power, except to the extent that Parliament has so provided bythe statute’12.Therefore, it can be said that the majority judgement voting against the use ofprerogative powers was not based on sound constitutional principle, as there isno statute as such that requires Article 50 to be triggered by Parliament. Inthe case of Blackburn v Attorney-General 197113it was held that treaty-making powers rest in the Crown, acting on the adviceof its ministers and their actions cannot be challenged by the courts.In addition, the mere argument that the 2016Referendum to leave the EU has no legal effect is significant because theEuropean Referendum Act 2015 was deemed to be solely advisory. According toLord Hughes ‘no-one suggests that the referendum by itself has the legal effectthat a Government notice to leave the EU is made lawful’14.As a result, the government should be able to exercise its prerogative power towithdraw from the EU as the referendum was not ”legally binding”. As aresult, we could disagree with the majority judgement in Miller claiming thatit was not based on sound constitutional principle because there is no legalrestriction which prevents the government using prerogative powers, so it wouldbe unconstitutional to challenge this power in this case.Moreover, ‘the prerogative power over foreignrelations, including the making and unmaking of treaties, was a fundamentalpart of the UK constitutional order, which could only be curtailed expressly orby necessary implication’15.
This links to the fact that the European Communities Act 1972 did not set outany limitations on the Crown’s prerogative power. Therefore, the Act did notaffect the ability to exploit prerogative powers by the Crown with regards to therelationship between the UK and EU. This reflects the question whether thejudgement in Miller was based on sound constitutional principles, as themajority in Miller agreed that the government should not be able to exerciseprerogative powers to trigger Article 50. Nevertheless, there is no such clausein the European Communities Act 1972 that prohibits the use of this power. Also,’the objection is unsoundbecause an intent to restrict prerogative powers to withdraw from the EU doesnot follow from s.1(3) ECA. Section 1(3) ECA did not impose a legal condition on prerogativeaction on the international plane’16.
This also proves that the government should be allowed to use its prerogativepower to trigger Article 50 because there was no explicit limitation on the useof prerogative powers.Lastly, the majority judgement in Miller wasnot based on sound constitutional principle because, as Lord Carnwath stated inhis dissenting speech; Article 50 is a mere start of a ‘negotiating anddecision-making process’.17Based on this, it could be argued that Article 50 is not a piece of legislationthat would hinder Parliamentary supremacy if the government used the prerogativepower 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 onsound constitutional principle, as the majority declared that it would beunconstitutional for the executive to use its prerogative power to trigger Article50. Overall, the majority judgement in Miller arguablygoes against sound constitutional principles; open to criticisms and lacking inpurpose. Ultimately, however, this is not the case when we look at the doctrineof Parliamentary sovereignty and rule of law. This is because, as aforementioned,the UK joined the EU by passing the European Communities Act 1972 throughParliament.
The judgement in Miller aims to uphold the rule of law by rejectingthe argument that the executive should be able to use its prerogative power totrigger Article 50. Reflecting on Lord Carnwath’s quote, Article 50 is notsimply an agreement to negotiate the terms of withdrawal, as it gives ministersexcessive power; as Charles McIlwain highlights: ‘the referendum really comes,the sovereign Parliament must go.’18Thus, this would weaken Parliamentary sovereignty which would undermine thetraditional constitutional principles.
For these reasons, the majorityjudgement was based on sound constitutional principles and Parliamentarysovereignty was worth defending. 1 D | From A VDicey, ‘Introduction to the Study of the Law of the Constitution’ (10thedition, 1959, p424)2 2 AC 513, 5523 R (on the application of Miller and another)(Respondents) v Secretary of State for Exiting the European Union (Appellant)2017 UKSC 5 354 R (on the applicationof Miller and another) (Respondents) v Secretary of State for Exiting theEuropean Union (Appellant) 2017 UKSC 5 365 Case of Proclamations (1610)12 Co. Rep. 74 6 Thoburn v SunderlandCity Council and Hunt v London Borough of Hackney etc (2002) EWHC 195 Admin7 3 WLR 1196, para 588 Thomas Poole, Devolution to legalism: on theBrexit case, 2017, M.L.R.
2017,80(4), 696-7109 (No 2) 1991 1 AC603 and (No 5) 2000 1 AC 52410 A.C. 508, H.L.11 2AC 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) 16113 C.M.L.R 784 (LordDenning)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) 27515 Paul Craig, Miller,structural constitutional review and the limits of prerogative power, 2017,P.
L. Nov Supp (Brexit Special Extra Issue 2017), 48-7216 Barczentewicz,”The core issue in Miller” (4 January 2017), Policy Exchange/JudicialPower 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, TheHigh Court of Parliament and Its Supremacy: An Historical Essay on theBoundaries between Legislation and Adjudication in England (NewHaven, Ct: Yale University Press, 1910) xv.