Miller I [2017]
Facts: Government announced their intention to revoke article 50 of the Treaty of Lisbon by use of prerogative powers and not through Parliament. Key issue was on the basis of the ability of the crown’s prerogative powers to enter into and withdraw from treaties, the EU in this case. The argument was that the same powers used by signing a treaty to join the EU could be used to leave a treaty.
ISSUE: What are the procedures to trigger Article 50 of the TEU Does minister have the prerogative? If not, does that mean legislation is required? Then does the legislation require the consent of devolved nations?
Held: Appeal dismissed; the Government could not issue a notice under article 50 without the approval of Parliament. The royal prerogative to make and unmake treaties, which operated ‘wholly on the international plane’ (para 86), could not be exercised in relation to the EU Treaties so as to change domestic law. EU law became part of the UK domestic law under the European Communities Act 1972; on withdrawal from the EU, EU law would no longer apply in the UK unless it was specifically retained or adopted.
Majority understanding of EU law (Lord Neuberger)
o parliament by creating ECA created another 'source' of law. Which means anything EU passed or judgements of CJEU would be UK law also.
o UK's withdrawal from the EU would modify domestic law & frustrate the ECA 1972, and remove right: not a valid use of prerogative power.
o EU law provide "a new constitutional process for making law in the UK”.
o EU law pipeline is blocked, but what has gone through IS domestic law, a Brexit will change them.
Minority understanding of EU law (Lord Reed)
o EU law is not UK law, it's EU law. It becomes UK law only because it becomes 'translated' or 'passed on' via the pipeline that ECA is.
o UK's withdrawal would neither modify nor frustrate ECA 1972
o EU law remains non-domestic law until it's incorporated through the route provided by the 1972 Act. Leaving EU treaties do not modify domestic law. Section 2(1) is conditional
o The law modified is not domestic
o Lord Reed seems give EU law a procedural effect while Lord Neuberger gives EU law a substantive effect. The core question is whether EU law is passed into the UK
Important commentary 💡
Ø Issue 1: did the govt enjoy a prerogative power that could be used to notify the European Council of the UK's intention to leave EU in absence of legislation?
Restrictions on prerogative power.
o Cannot modify domestic law/ Cannot frustrate legislation: Ex parte Fire Brigades Union [1995]
o even though authorities were given prerogative power to amend the compensation scheme but it cannot be incompatible with the statutory scheme
o Cannot remove rights.
ECA sec 2(1).
o All such rights, powers, liabilities, obligations, and restrictions from time to time created or arising
by or under the Treaties, and all such remedies and procedures from time to time provided for by
o or under the Treaties, as in accordance with the Treaties are without further enactment to be given effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.
o Held: no,
Ø Issue 2: If legislation is required, did the devolved legislatures need to consent to this legislation?
- Sewel convention - Westminster should not normally legislate without consent Side issue on Referendum
- 2015 Referendum Act did not create a legal obligation
- 2016 Referendum only has political force and not legal until it is acted on by Parliament.
- 12th Report of Session 2009-10 of the HoL Select Committee on the Constitution (Referendums in the UK) recommended that referendums are only advisory rather than binding in the UK due to the sovereignty of Parliament. It is agreed and accepted by the UK Govt.
On Accountability
Ø Miller I [2017] , on the displacement of prerogative power by Act of Parliament?
- Central issue of whether ECA displaced the foreign affairs prerogative to notify the European Council & trigger Art 50 w/o first obtaining an Act of Parliament