In a ground-breaking decision, the High Court issued a declaratory order that ‘the Secretary of State does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.’ In earlier posts, I explained how the publically available arguments from The People’s Challenge illustrated a tension between two approaches to reasoning about the case, which I referred to as an assessment of substance or form. The judgment in Miller adopted the broad substantive approach– was this justified?
It is hard to fully explain the judgment or even to set out the ratio in a blog post. In short, the High Court examined the issue as a matter of high constitutional principle. Parliamentary legislative supremacy means that Parliament is the supreme law-maker. From this, it follows that, although the Crown may possess residual prerogative powers, determined by the common law, these prerogative powers do not extend to the ability to alter the law of the land, found either in legislation or the common law. This is confirmed by the Bill of Rights 1689. Although the Crown has a prerogative power to enter into and withdraw from Treaties, that prerogative power cannot extend to altering current law. On a narrow reading of the case, the European Communities Act 1972, particularly sections 2(1), 2(2) and 3(1), impose legal duties on the UK to give effect to EU law. To leave the EU would frustrate these legal duties. On a broader reading, the European Communities Act ‘switches on direct effect’, and cannot be taken to have intended that direct effect can be ‘switched off’ by prerogative power. As a ‘constitutional statute’ it is all the more important that the 1972 Act is interpreted against the backdrop of constitutional principles. The constitutional principle that ‘prerogative powers cannot be used to modify the law’ is also extremely important, given its dependence on the sovereignty of Parliament. It ensures that legislative provisions enacted by Parliament cannot be removed by an exercise of prerogative powers by the Government. As such, extremely clear words would be required to demonstrate an intention in the 1972 Act that Parliament would authorise the Crown to withdraw from the EU. The wording of the 1972 Act itself did not suffice to demonstrate this intention.
This is a brave interpretation, demonstrating a clear preference for substance over form. Is it justified? It’s a highly contestable issue, the resolution of which may well dictate the outcome in the Supreme Court. I would argue that this approach can be justified, because of the nature of the adjudication before the court and the consequences of the triggering of Article 50. The UK is about to make a momentous constitutional change. It’s important that such changes are done in a manner which complies with the UK constitution. There are strong, normative arguments for parliamentary debate before Article 50 is triggered. This is not in order for Parliament to defy the will of the people, but because there is a need for clarification of what this will is. There is no monolithic ‘will of the people’. People voted to leave for a variety of reasons. Some would have wanted ‘hard’ and others ‘soft’ Brexit. After over 40 years of membership of the European Union, it is hard to fully comprehend the precise extent to which rights will be modified after our exit from the European Union – even for those immersed in European Union law. Such a broad sea-change requires the consent of the people – obtained through the referendum – and a detailed discussion of what is best for all of the British people, including those who voted to remain as well as those who voted to leave. The litigation also arises at a pre-emptive stage, where we do not know the precise consequences of leaving or the extent to which Parliament will have oversight over this process. In this combined set of circumstances, it may be better for the court to err on the side of caution, broadly interpreting constitutional principles to ensure that action is not taken in a manner that may turn out to be constitutionally unlawful in the future, particularly when it may then be too late to challenge this illegality. Courts may need to focus more on substantive reality than legalistic form when asked to pre-emptively ensure the delicate balance between parliamentary sovereignty and the rule of law on which the UK constitution is based. We wait with baited breath to see if the Supreme Court agrees that this is the correct approach to take to constitutional adjudication in the UK.