Miller: Winning Battles and Losing Wars
Paul Craig 4th November 2016

The claimants in Miller won the first round of the legal battle, since the High Court concluded that Parliament’s approval had to be forthcoming before Article 50 could be triggered. The ruling will now be tested before the Supreme Court. I entirely endorse the idea that Parliament should have voice in this process, as I made clear in previous writing. The ‘cost’ of this victory was, however, profound. It was legally predicated on the assumption that Article 50 TEU was irrevocable when triggered. Four brief points then as to why this victory is potentially so costly.

First, it renders everything hereafter a high stakes knock-out contest. Parliament might vote not to trigger Article 50 at all, but that is unlikely since MPs would be reluctant to reject outright the referendum vote in that manner. Parliament might alternatively try to shape substantively the nature of the deal to be negotiated with the EU, but there are limits as to how far this could be done in advance. It might insist on process constraints, whereby the executive had to keep it informed of progress. Let us however be clear: anything other than a vote not to trigger Article 50 will mean that we are on a one way route out of the EU, because once Article 50 is triggered it is legally deemed to be irrevocable.

Secondly, the victory in ensuring Parliament’s voice at the approval stage comes at the cost of emasculating its voice thereafter, thereby diminishing any substantive or process constraints that Parliament might choose to impose when giving approval. The reason is not hard to divine. The Constitutional Reform and Governance Act 2010, s. 20 provides for parliamentary voice prior to ratification of an international treaty. The executive duly negotiates an agreement under Article 50, which is rejected by Parliament because it feels that the deal is a bad one, and that the UK would be better off in the EU. If Article 50 were revocable then Parliament could decide to revoke the notification of withdrawal, and/or call a second referendum to determine the wishes of the people. But the interpretation of Article 50 as irrevocable means that Parliament has no leverage at this point, and this would not be altered even if the statute giving approval to triggering Article 50 required some vote in favour of the withdrawal agreement beyond a simple majority. The executive’s response will be that Article 50 once triggered is irrevocable, that the UK will therefore exit the EU without an agreement, and be subject to the default WTO rules. The cost of this victory is therefore to render largely powerless parliamentary voice and input when the terms of the deal are known.

Third, the judgment in Miller is rich in many respects, but not in relation to Article 50. We work within an adversarial system, the premise of which is that the contending parties place the opposing arguments before the court. The system failed in this case. The government side conceded that Article 50 was irrevocable, and thus the issue was never properly considered. In a previous blog I put forward four arguments as to why Article 50 should be revocable, two of which are fundamental points of principle. Firstly, it is a cardinal legal principle that a party is not bound by a contract or treaty until agreement has been reached. Prior to that point a party can walk away from the negotiation. This legal principle is not dependent on express written mention. To the contrary it is accepted as part of the legal rules that govern the making of contracts and treaties. Secondly, this principle is reaffirmed by Article 68 VCLT, which provides that “a notification or instrument provided for in article 65 or 67 may be revoked at any time before it takes effect”. The notification under Article 50 TEU only takes effect when the withdrawal agreement is concluded, or two years has elapsed, since before then the notifying state has all EU rights and obligations; it follows that the state can revoke before that time. The idea that Article 50 is clearly irrevocable does not therefore withstand examination, and that is without considering the dire consequences of such interpretation, which include the emasculation of a UK constitutional statute, the 2010 legislation. It is moreover noteworthy that Lord Kerr, the architect of Article 50, is clearly of the view that Article 50 was intended to be revocable.

Fourthly, there is a deeper paradox in this litigation thus far. The claimants would like us to remain in the EU. They are willing to risk everything for some parliamentary voice at the trigger stage, even if this could only be secured by conceding the war if that failed to stop the triggering of Article 50. The government wishes to exit the EU. It conceded the Article 50 point knowing that it might then lose the immediate battle, and would therefore have to seek parliamentary approval, but was confident enough that this would be forthcoming, and that thereafter the war was won, since the triggering once done was irrevocable.

Author profile

Paul Craig, MA 1973, BCL 1974, Oxon, Gibbs Prize 1972, Henriques Prize 1973, Vinerian Scholar 1974. Professor in English Law since Oct 1998- St. John's College. Formerly: Professor in Law 1996-1998 Worcester College; Lecturer, Magdalen College, 1974-75, Reader 1991-96.

Citations

Paul Craig “Miller: Winning Battles and Losing Wars” (OxHRH Blog, 4 November 2016) <http://ohrh.law.ox.ac.uk/miller-winning-battles-and-losing-wars/> [Date of Access]

Comments

  1. Sean Feeney says:

    A certificate for a leapfrog appeal to the Supreme Court has been issued.

    Paul Craig makes a contention that is contrary to authority on the nature of judicial review: “We work within an adversarial system, the premise of which is that the contending parties place the opposing arguments before the court. The system failed in this case”.

    The inherent jurisdiction of the High Court at judicial review is very wide indeed because it must always be sufficient to the end of determining legality.

    The inquisitorial duty of the High Court was engaged by: (1) grant of permission for judicial review; and (2) exercise of the Courts’ exclusive jurisdiction to construe statutes.

    This Divisional Court egregiously failed, in my view, in the vital basic function of a first-instance court: to make findings of relevant fact.

    The claimant’s side correctly raised the astonishing lack of material from the defence on one of the two decisions being challenged: the UK’s purported decision to leave the UK.

    The claimant’s side finished their case with what the Lord Chief Justice subsequently and correctly called a “request for the decision”.

    This decision was so badly described by the defence that Her Majesty’s Attorney General had to “set out how that decision has been reached” in oral argument, which is not evidence.

    The Divisional Court could and should have ordered specific disclosure of this decision on its own motion; because the parties disagreed fundamentally on whether it was this antecedent decision to leave or the decision to notify that has consequences on rights given effect by domestic statute.

    The Supreme Court will not what are, in my view, highly relevant findings of fact by a first-instance court if the Government proceeds to lodge an appeal. It is still open to the Supreme Court to find on appeal, contrary to the High Court, that it is the decision to leave that has consequences and not the decision to notify.

    As a matter of law, there can only be a power to notify if this antecedent decision to leave is not void or a nullity; and the Divisional Court failed to inquire into the legality of this antecedent decision.

    The ratio of the Divisional Court’s decision also crucially depends at [107] of the judgment on the finding that “Parliament must have appreciated that the referendum was intended only to be advisory”. This finding depended on evidence of “a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only”.

    Defence material before the Divisional Court included Hansard material consistent with the construction (which the defence did not argue) that 2015 Act provided for a statutory decision by the UK to leave the EU – on a Pepper v Hart [1993] AC 593 reading.

    Neither the parties in oral argument nor the Divisional Court in its judgment raised the admissibility of Parliamentary material under the well-known three-part rule in Pepper v Hart (it is really a justification of an exception to the exclusionary rule not a true admissibility test ).

    The Divisional Court could and should have invited express Pepper v Hart submissions on the construction of the 2015 Act, not least because the ratio of the Divisional Court’s decision rests squarely on evidence extraneous to the 2015 Act: “a clear briefing paper to parliamentarians”.

    So what failed here, in my view, was not the system but a Divisional Court consisting of the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sales.

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