R. (on the application of Miller) v Secretary of State for Exiting the European Union

Court: The Supreme Court 

Year: 2017

Citation: [2017] UKSC 5  [2018] A.C. 61

Introduction 

The case involved looking at the powers of the UK government and whether they have the power to trigger Article 50 which would mean that the UK would leave the EU without any form of scrutiny. The Legal issue in this case was whether the scope of the executives prerogative powers included triggering Article 50. 

Facts of the Case

Parties involved:

The claimant: Gina Miller 

The defendant: Secretary of State for Exiting the European Union (representation of the UK government) 

Relevant Facts:

1. After the Brexit Referendum which took place in 2016, the executives showed the signs to trigger Article 50.

2. Gina Miller took notice of this and took legal action against the government as they did so without Parliament’s permission. 

Issues of the case:

1. Firstly, do the UK government have the ability within their prerogative powers to trigger Article 50. As in matters of international matters, the executive branch the ability to act without the consent of parliament. 

2.  Secondly, would triggering Article 50 require parliamentary involvement as it would affect domestic law.

Court’s Decision 

The Supreme Court dismissed the appeal from the Secondary of State for Exiting the European Union and ruled by an 8-3 majority in favour of Gina Miller which means that the government cannot activate Article 50 now and they will have to go through the parliamentary process, which would involve scrutiny, in order to formally leave the European Union. The court stated that the government’s prerogative powers were not wide enough to change an area of law that would largely impact domestic law and thus the lives of millions without it going through parliament first. It was mentioned that the European Communities Act 1972, which had originally brought the UK into the EU, is an active piece of legislation that cannot be undone by the government’s prerogative powers. 

Legal Reasoning 

Majority Opinion:

Lord Neuberger led the majority opinion and stated that the UK government’s prerogative powers should not be used when it is a matter of changing domestic laws or removing an individual’s rights without parliament having an involvement. It was also stated that the European Communities Act 1972 introduced the incorporation of EU Laws into the UK and therefore any changes to this piece of legislation would mean that we would need the permission of parliament. It was also mentioned that the constitutional concept of parliamentary supremacy would mean that the government’s powers are nowhere near the level of that of parliaments.

Dissenting/Concurring Opinions: 

Lord Reed was one of 3 judges to have given a dissenting judgement, he argued that the executive branch actually did have the power to activate Article 50 as they do not need to involve parliament in matters of international affairs which this is. This is because Parliament had given the authority to the government to negotiate with treaties and therefore this was within their scope of powers.

Statute and Precedents:  

The case referred to some very key cases and statutes, such as:

• The European Communities Act 1972 is the act that introduced the law of the European Union into domestic law and from this act many people’s lives have changed.

• The case of De Keyser’s Royal Hotel is a very important case that stated prerogative powers cannot be used where it is in direct conflict with an active statute and in this case that active statute is the European Communities Act 1972. 

• The case of R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg emphasised that the executive’s prerogative powers are normally used when it is a matter of international affairs.

Impact of the Case 

Legal Precedent: 

The Supreme Court decision has reaffirmed the concept of parliamentary sovereignty which means that parliament has the power to create any law it wants without being challenged. By trying to change a piece of legislation would thus be a challenge to parliamentary supremacy and this decision shows that any changes to a person’s life or rights have to be done by parliament and not the executive branch as that would cause a disruption to the separation of powers. 

Social and Political Impact 

The decision has had a powerful impact on the political world as it has showed that when the executive branch and legislature branch are at debate the legislature branch will come out victorious. This is a huge victory for those who argue that the government trying to trigger Article 50 without any scrutiny from elected representatives is wrong and unethical. 

Personal Analysis 

Critical Analysis:

I believe that the Supreme Court got its decision correct, and this is a huge victory for both constitutional law and the democracy of this nation. The court correct fully understood the impact of what would happen had the UK government acted alone without any involvement of parliament. This shows that any sort of law changes or law-making process belongs only to parliament particularly when it is to do with the nation. 

Strengths and Weaknesses 

Strengths: One of the biggest strengths of this case is that the executive do not have the power to change laws affecting the lives of many people in the United Kingdom as that would mean they could introduce in any law that they without it having to go through a long scrutiny procedure. This also reflects that we live in a democratic society. This ruling also helped give us an understanding of the limits of the prerogative powers.

Weaknesses: One major weakness of this decision however is that it delayed the Brexit process which is what majority of the people in the country had requested for. 

Alternative Outcomes: 

An alternative outcome of this case would be that the court had in fact ruled in favour of the government which would have set a dangerous precedent as this would have meant firstly that the governments powers have widened, and they can now take matters concerning domestic law. This would have destroyed the separation of powers theory and also weakened the concept of parliamentary sovereignty.

Conclusion 

The Supreme Court’s decision in this case looks to be a significant moment within the constitutional history of the UK, this is because the case reaffirms the principle of parliamentary sovereignty and by ensuring that the executive branch cannot activate Article 50 without parliament’s permission, the court made sure that the a democratic decision was reached as they were aware that a decision without any sort of scrutiny from elected members would be wrong and unjust. The case seems to have come at a point where there have been lots of discussion regarding the concept of parliamentary sovereignty. However, this case has reaffirmed that parliament is supreme. 

References

1.Aroney N, R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms, 80 The Modern Law Review Limited 726, 728 (2017)

2.Dicey A, An Introduction to the Study of the Law of the Constitution 39-40 (Macmillan & Co.1885)

3.Phillipson G, EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union, 36 Yearbook of European Law 46,47 (2017)

Author:

Tanmeet Singh Sachdeva 

University of Surrey