Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Case of the Day: Miller v. Secretary of State

Keep Calm for He Is An Englishman

In my July 4 post on Brexit, I wrote:

… to put the EU question directly to the voters flies in the face of what I thought I knew about the UK constitution, particularly the idea of Parliamentary sovereignty. Some of the legal reaction to Brexit seems to bear this out. Assuming for the moment that the decision to invoke Article 50 of the EU Treaty isn’t a matter within the prerogative powers (if it were, the decision would be for the government), doesn’t Parliament still need to vote?


As it turns out, this was the right question to ask, and the assumption I made—that invocation of Article 50 wasn’t within the government’s prerogative powers—was correct, though contested.

In today’s case of the day, R. ex rel. Miller v. Secretary of State for Exiting the European Union, [2016] EWHC 2768 (Admin), the High Court held that in fact invocation of Article 50 is not within the prerogative power. The basic reasoning is that the prerogative power cannot be used to override statutes enacted by Parliament. Since, the EU treaty is not self-executing in UK law, Parliament enacted statutes to give effect to the treaty. So while the government has the prerogative power to enter into treaties, once Parliament has legislated so as to make treaties effective and to create rights that withdrawal from the treaty would destroy (for example, the right of freedom of movement within the EU), only Parliament can repeal the implementing legislation. (Well, it’s a little more complicated than this—read the opinion!)

The furious reaction to the decision is a little hard to understand in principle, though as a raw political matter I suppose it makes sense. The Brexit campaigners wanted to restore Parliamentary sovereignty and the supremacy of British law as the law of the land. Isn’t that what they’re getting in this decision? On the other hand, the outcome of the referendum was clear, and so Parliament will no doubt face a real political firestorm if it uses the decision as an excuse to ignore the popular will as expressed in the referendum.

The High Court’s decision may not be the last word, as the government has promised an appeal to the UK Supreme Court. Stay tuned.

Ted Folkman
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10 responses to “Case of the Day: Miller v. Secretary of State”

  1. Sarah

    Stay tuned, indeed.

    The JR decision was consistent with the general Parliamentary sentiment towards prerogative powers and May’s government will lose more parliamentary support if they appeal it. I find it incredibly ironic (moronic?) that the people complaining about the outcome fail to see the acknowledge the idea behind prerogative powers in the first place.

    I foresee a good possibility of a vote of non-confidence coming about through all this leading to an early election with promises of “In” or “Out” at the root of election platforms which will just move the whole issue from a direct referendum vote to a constituency vote. What a mess!

    The whole thing is getting embarrassing. The UK won’t press the button unless they know they can have their cake and eat it too (keep three of the four freedoms) and the EU won’t negotiate until they push the button; which quite frankly they shouldn’t.

    Reply
    1. Ted Folkman

      Thanks Sarah. The latest report I’ve seen suggests that the Labor Party will not block a Brexit bill and will not call for a general election. So who knows, but perhaps Miller isn’t as big a deal as it might seem!

      Reply
      1. Sarah

        The Labour Party has agreed to not block the Brexit vote in general, however, they have said that they will be fighting to maintain freedom of goods and capital. The EU has been pretty clear that all four freedoms go hand in hand. If Labour doesn’t feel that May’s government is capable of negotiating Brexit to maintain freedom of good and capital it could quite possibly lead to a vote of non-confidence. Just sayin’.

        Reply
  2. Aaron Lukken

    Well said … and in fact your point in June provided excellent discussion fodder for a CLE lecture I gave shortly thereafter.

    To Sarah’s thought above regarding the political firestorm that will result from Commons rejecting Brexit, I’m not so sure that will come to pass (although, Sarah may very well be spot on!). Given the significant number of people who voted Leave and then exclaimed “holy shite, I just wanted to send a message—I didn’t think we’d actually do it!”, retribution may not be as prevalent as the conventional wisdom might indicate. Moreover, strong buyer’s remorse may minimize the revolt.

    Reply
    1. Ted Folkman

      Thanks, Aaron. I agree with you that it seems unlikely that Parliament would refuse to pass a Brexit bill.

      Reply
  3. Peter Lynn

    My understanding was always that the referendum was advisory and that a Parliamentary vote would be needed before invoking article 50. I was very surprised when Theresa May said she could go ahead without a vote. It seems the basis for this is ‘Royal Prerogative’, which as I understand it, the government thought they could proceed without a vote because the referendum gave them a clear mandate from the electorate.

    But even following this logic, the mandate from the people is anything but clear, since people who voted to leave did so for different reasons and not everyone can have the Brexit they thought they were voting for.

    In your original opinion you said that the most surprising thing about the referendum is that there was a referendum. I think you’re right. It has been ill thought out, and no one had a forward plan should the leave vote prevail – no one except Cameron, whose immediate response was to resign. Sarah is right when she says the whole thing is embarrassing, and I will not be at all surprised if one way or another article 50 is never invoked.

    Reply
    1. Ted Folkman

      Thanks, Peter. I agree with all of this except I think that the mandate, right or wrong, was pretty clear—leave the EU. Maybe no one thought through how to make that work, but that’s different than saying there was no clear decision.

      Reply
      1. Peter Lynn

        But the terms under which we leave the EU are very important, and on that the referendum provides no clarity. For example, do the majority want a Norwegian style relationship with single market access and free movement, or do they want to slam the borders shut whatever the consequences.

        Reply
  4. P Smith

    The line the Government proposes to advance before the Supreme Court is that an Article 50 notice can be withdrawn. If that is so then the main argument for requiring Parliamentary authorisation – that issuing the notice will inevitably result in the UK leaving the EU in at most two years and rights available under EU law being removed thereby – is considerably weakened.

    Unfortunately Article 50 is silent on that, and only the CJEU can give a definitive answer on the interpretation of Article 50.

    That aside, some people seem to be behaving as if a supermajority had voted for Brexit in a binding referendum, rather than only 52% in an expressly non-binding referendum. Countries with actual written constitutions generally don’t allow for major and irrevocable changes on the basis of such a small margin.

    Reply
    1. Ted Folkman

      “Countries with actual written constitutions generally don’t allow for major and irrevocable changes on the basis of such a small margin.”

      Ahem …

      Reply

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