For hundreds of years, the United Kingdom hasrelied on its own system of governing, which has kept the rule of law separatefrom the parliament. A constitutionis typically in the form of a readily identifiable document. It has a specialsanctity, thought to be concrete in nature, setting out the framework and mainfunctions of the state organs giving the principles they should adopt (adheringto people’s rights and liberties). Unlike many of the leading countries aroundthe world, the United Kingdom’s constitution is uncodified and has not beenassembled into one consolidated document. However, over time, documents such asthe Magna Carta in twelve-fifteen, and the Bill of Rights in eighteensixty-nine, have provided stepping stones towards documenting the laws, customsand conventions. As stated by Jack Straw, “.
…in no one document can be found what is called the’British Constitution’. The constitution of the United Kingdom exists in heartsand minds and habits as much as it does in law”1. Overthe years judicial proceedings have served to clarify and confirm the rightsand duties in UK individuals, including the case of Bushell’s (1670), Vaughan (1677), Somerset v Stewart (1772), Beattyv Gillbanks (1882). Theorists such as Blackstone, Bagshot, and May havealso played their part in contributing towards documentary sources for the UnitedKingdom’s uncodified system.Themain sources in the United Kingdom include statute law, common law, historicaldocuments, and conventions.
The UnitedKingdom European Union membership referendum and the Brexit referendum tookplace on the twenty-third of June two thousand and sixteen. On the twenty-fourth of January two thousandand seventeen, the Supreme Court gave judgment in R(Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5,259. “The Government then pursued toestablish that it could start the United Kingdom’s withdrawal from the EuropeanUnion without reference to Parliament.
“The Supreme Court also consideredwhether the United Kingdom’s devolution arrangements impacted upon theGovernment’s capacity to trigger Article 50 of the Treaty on the European Union”2.It can be noted that a soundconstitutional principle is a principle that the government, parliament and thejudiciary all have in common, so far as that they all rely on it to make a correctand sound judgement. I plan to challenge and discuss whether or not a soundconstitutional principle really exists, what the majority judgement was in thecase of R (Miller) v Secretary of State for Exiting the EuropeanUnion 2017 UKSC 5, 259 and whetherthe majority judgment in the case is based on this principle. The main questionI will be leading up to and answering is whether or not the majority got the judgementright in the Miller case, if so whyand why not. Firstly,we must establish what is a constitutional principle is. The answer will require detecting some of thekey principles of the constitution of the United Kingdom.
According to the UnitedKingdom’s Constitutional Law Association “the prime constitutional principle isthat Parliament is sovereign and that ‘an important aspect’ of this principleis that ‘primary legislation (in this case the EuropeanCommunities Act) is not subject to displacement by the Crown through the exerciseof its prerogative powers’ (25)”3.”The Court found out that the Crown has no power to alter the law of the land,whether it be common law or contained in legislation (25)”4. “This statement can be affirmed through examples such as The Bill of Rights1688 and statement of the Privy Council in the case of TheZamora 19162 AC 77″5.”These constitutional principles indicate that the prerogative cannot be usedto replace European Union rights which have been set in domestic law through section2(1) ECA”6.”However, it is also clear that there are overriding constitutional principleswhich may give weight to the Government’s assertion of the existence of therelevant prerogative power. Initially, the United Kingdom is a democracy andthat the decision to exit the European Union was a decision dictated by theexercise of choice by the people”7.”Secondly, it is unconventional under the constitution of the United Kingdom that as a general rule applicable in thenormal circumstances, the conduct of international relations and the making andunmaking of treaties on behalf of the United Kingdom are regarded as mattersfor the Crown in the exercise of its prerogative powers (30)”8.I will look at the main reasons for the opinion of the majority and find thedifferences between them, and those of Lord Reed’s opposite opinion, whichLords Carnwath shared.
Referring to the question asked, R (Miller) v Secretary of State for Exiting theEuropean Union 2017 UKSC 5, 259, the Governmentsought to establish that it could initiate the UK’s withdrawal from the EuropeanUnion without reference to Parliament. “The Supreme Court also consideredwhether the United Kingdom’s devolution arrangements impacted upon theGovernment’s capacity to trigger Article 50 of the Treaty on the European Union”9.As I have already mentioned,the outcome of the case was that the Government did not have the power toinitiate the withdrawal, with a split of eight to three. As stated in the dissentingargument by Lord Carnwath, who was agreeing with Lord Reed, was that the notice”did not change any laws or affect any rights, and was merely the start of anessentially political process of negotiation and decision-making within theframework of that article”10. Lord Carnwath was of the view that the Court hadoverlooked the importance of executive accountability.
He believed that it waswrong to consider the argument of choosing between parliamentary sovereignty andprerogative powers of the executive. I have already mentioned that the United Kingdom’sconstitution is a balance between the roles of parliament, the executive, andthe courts. Lord Carnwath is mindful of the sensitivity that exists between thebodies and that the Court could conclude that the accountability of theexecutive would be enough to avoid the need for Parliament’s involvement. Iunderstand the three key aspects of the decision were the relationship between theEuropean Union and United Kingdom Law, The European Communities Act 1972, and the scale of impact onthe membership of the European Union.
Regarding the relationship, the majority view was that United KingdomLaw in the form of the European Communities Act was the source of European UnionLaw. Without the Act, European Union Law would have no domestic status. Themajority view from this was that with European Union Law recognised as domesticlaw, the executive is not fit for purpose to trigger Article 50.
The dissentingview, as presented by Lord Reed, was that European Union Law was derived fromStatute (Act), and the Statute derives authority from the rule of recognition(H.L.A Hart’s Theory of Legal Positivism11),in other words, what counts as law. Lord Reeds sees the European Communities Act of 1972, as givingthe power for the executive to trigger the article.
Therefore, the prerogativeremains exercisable unless legislation precludes its use. The majority are of the view that the European Communities Actdoes not allow for the abolition of European Union law by a prerogative acteffecting withdrawal. The view is that Parliament endorsed the membership ofthe European Union, and so, to go against this approach with withdrawal wouldbe incompatible. However, looking at the constitutional implications, themajority consider the size of the issue. It was an unprecedented issue at thetime of its formation in nineteen seventy-two, and so, will be the withdrawal.
The majority were mindful that when European Union membership was created, itwas the first time in the history of the United Kingdom, that an internationalsource of law was grafted into, and above, United Kingdom’s domestic law,Parliament and the Courts. The withdrawal will also be unprecedented. Therefore,in order to trigger the Article 50, legislation should be created. The majorityview was that whilst the European Communities Act accommodated changes in EuropeanUnion Law, it did not accommodate complete withdrawal. The dissenting view wasthat European Communities Act was capable of accommodating triggering Article50.
I would suggest that Lord Reed had a point. Legislation does not requireeverything to spelt out, no matter what the scale of the issue. However, giventhe size of the issue, there is also an argument that could be said for thattoo. When looking at the matter from a legal perspective, I would agree withLord Reed. It can be said that the two main reasons for the differing viewsrelate to the differing perspectives on European Union Law and the politicaland legal control of the executive. I have already mentioned that the majorityhad the view that the European Communities Act (1972) gave the green light forEuropean Union Law to become an important part of United Kingdom Law. Lord Reeddissenting was of the view that European Union Law is distinct from United KingdomLaw.
It did not create statutory rights in the same sense as other statutes.All it did was give legal effect in the United Kingdom to a body known as EuropeanUnion Law. I am of the opinion that it is reasonable to suggest that European UnionLaw has become more than a law which has been given legal effect in the United Kingdom, for example, in the Independent article on “15 EU laws andregulations we will miss in post-Brexit Britain”12. When considering the political and legal control of theexecutive, the majority view was that if prerogative powers could triggerArticle 50, they could have triggered Brexit without the need for a Referendum.They were dismissive of judicial reviewas a safeguard against casual executive-initiated withdrawal. Lord Reed, on theother hand, was of the view that the controls over carrying out ministerialpowers under the constitution were not of a legal character. I believe LordReed has a point.
It puts into question the courts’ capacity to control theexercise of certain prerogative powers. It should not lead a court that issatisfied that the relevant power exists to then doubt its existence. Finally, “TheSupreme Court also considers whether the UK’s devolution arrangements impactedupon the Government’s capacity to trigger Article 5013”.The question was whether the legislation now needed would fall within the SewelConvention. Whilst the Court did not say it was inapplicable, they did say thateven if it did fall within the Convention, it was not legally enforceable.
Given the Scottish ministry’s devolution ambitions, it could be argued thatthis is a politically motivated approach. To conclude, the point ofthe Miller case was all about thequestion: what is a sound constitutional principle? Historically, the UnitedKingdom has not got a defined constitution, however, there are certain aspectsof it which correspond to the understanding of the constitution. 1 Jack Straw, Modernising the Magna Carta, (2008), as well as The Independent – http://www.independent.co.
uk/news/uk/politics/the-big-question-why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html2 The relationship between EU and UK law -https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/3 J. Adenitire, ‘Exiting the EUConstitutionally’, U.K. Const.
L. Blog (9th Nov 2016)https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/4 J. Adenitire, ‘Exiting the EUConstitutionally’, U.
K. Const. L. Blog (9th Nov 2016)https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/5 J.
Adenitire, ‘Exiting the EU Constitutionally’, U.K. Const. L. Blog (9th Nov2016)https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/ 6 J. Adenitire, ‘Exiting the EUConstitutionally’, U.K.
Const. L. Blog (9th Nov 2016)https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/7 J. Adenitire, ‘Exiting the EUConstitutionally’, U.K. Const.
L. Blog (9th Nov 2016)https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/8 J. Adenitire, ‘Exiting the EUConstitutionally’, U.K. Const.
L. Blog (9th Nov 2016)https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/9 The Supreme Court’s judgement in Miller https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/10 LordCarnwath (dissenting) in R (Miller) v Secretary of State for Exiting the EuropeanUnion 2017 UKSC 5, 259.11 Hart, H. L. A.
(1994). The Concept of Law (2 ed.).London: Oxford UP.; superseded by 3rd edition 2012, edited byLeslie Green.
12 The Independent, Andy McSmith, Saturday 25 June 2016, 17:45 BST- http://www.independent.co.uk/news/uk/politics/brexit-15-eu-laws-we-will-miss-in-britain-a7103031.html13 The Supreme Court’s judgement is Miller- https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/