R (Miller) v Secretary of State for Exiting the European Union
R (Miller) v Secretary of State for Exiting the European Union[1] is a United Kingdom constitutional law case decided by the United Kingdom Supreme Court on 24 January 2017, which ruled that the British Government (the executive) might not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Article 50 of the Treaty on European Union without an Act of Parliament giving the government Parliament's permission to do so. Two days later, the government responded by bringing to Parliament the European Union (Notification of Withdrawal) Act 2017 for first reading in the House of Commons on 26 January 2017. The case is informally referred to as "the Miller case" or "Miller I" (to differentiate with Miller's later Brexit-related case against the Government, Miller II).
R (Miller) v Secretary of State for Exiting the European Union
- R (on the application of Miller and another) v Secretary of State for Exiting the European Union
- R (on the application of the Attorney General for Northern Ireland) v Secretary of State for Exiting the European Union and the Secretary of State for Northern Ireland, ex parte Agnew and others (Northern Ireland)
- R (on the application of McCord) v Secretary of State for Exiting the European Union and the Secretary of State for Northern Ireland (Northern Ireland)
5–8 December 2016
24 January 2017
[2017] UKSC 5
- [2016] EWHC 2768 (Admin)
- [2016] NIQB 19
- For the Miller and Dos Santos application only:
Divisional Court (Queen's Bench Division) of the High Court (England and Wales) (EWHC (QBD))
- For the McCord application:
Court of Appeal (Northern Ireland) (NICA) - For the application by the Attorney General for Northern Ireland:
Divisional Court (Queen's Bench Division) of the High Court (Northern Ireland) (NIQB)
Neuberger, Hale, Mance, Kerr, Clarke, Wilson, Sumption, Hodge
Reed, Carnwath, Hughes (all dissented on royal prerogative point; all concurred on devolution point)
The Supreme Court's decision was given on appeal from the High Court's ruling[2] that the Crown's foreign affairs prerogative, which is exercised by the government led by the Prime Minister, may not be used to nullify rights that Parliament has enacted through primary legislation. The case was seen as having constitutional significance in deciding the scope of the royal prerogative in foreign affairs.[3] The Supreme Court also ruled that devolved legislatures in Scotland, Wales and Northern Ireland have no legal right to veto the act.[4]
The government's appeal was against the High Court order dated 7 November 2016 that formally declared: "The Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the Treaty on European Union for the United Kingdom to withdraw from the European Union." The Supreme Court heard the appeal from 5 December 2016 to 8 December 2016, and, by a majority of 8–3, upheld the High Court ruling, finding that authorisation by Parliament was required for the invocation of Article 50.[5]
The case was intervened by the Lord Advocate and the Counsel General for Wales for the Scottish and Welsh governments (respectively as the Scottish and Welsh Ministers), and applicants for judicial review in Northern Ireland also had their three separate applications considered together with this case, all of whom argued that the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly all had to consent to the invocation of Article 50. In each case this was unanimously rejected by the court.[5]
High Court judgment[edit]
Background[edit]
There was dispute over whether the decision to invoke Article 50 was the prerogative of the government, as the Cameron government argued,[14] or whether it required parliamentary approval.[15][16] Article 50 states that "Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements".
As Professor Kenneth Armstrong (Professor of EU law at Cambridge University) points out[17] this is a decision solely for domestic law: whether constitutional requirements have been met is a matter solely for the domestic law of member states. The UK's constitutional requirements for the valid invocation of Article 50 was the entire basis of this litigation, even though this was undertaken without explicit reference to that phrase as in Art 50(1) in the judgments. As will be seen below, it was held that the UK constitutional requirements were that an Act of Parliament need be passed in order to bestow the power on the Secretary of State to invoke Article 50, as the European Communities Act 1972 had displaced the Royal prerogative to take the UK outside of the EU treaties.
The first of the parties to lodge a complaint in the proceedings against the government's intention to trigger Article 50 without a parliamentary vote was Deir Dos Santos, who launched his action four days after the referendum of 23 June.[18] Miller's claim form was served on 29 July 2016.[19] The law firm Mishcon de Reya announced that it had been retained by a group of clients to challenge the constitutionality of invoking Article 50 without Parliament debating it.[20][21] In the proceedings, all parties accepted that withdrawal from the European Union would have profound consequences in terms of changing domestic law in each of the jurisdictions of the United Kingdom.[22]
At the preliminary hearing on 19 July 2016, Sir Brian Leveson, President of the Queen's Bench Division, stated that the court gave leave to Dos Santos to stay his proceedings and join as an interested party in Miller's case, and others, such as a group of unnamed clients who were separately represented, would have the option to be interested parties in the claim or interveners.[19] At the hearing, lawyers for the government confirmed that the government would not issue an Article 50 notification before the end of 2016.[23] In the court proceedings, the government contended that it would be constitutionally impermissible for the court to make a declaration in terms that the government could not lawfully issue notification under Article 50 unless authorised by an Act of Parliament, and stated that the declaration now being opposed would trespass on proceedings in Parliament.[24]
Questions were also raised over the impartiality of Lord Neuberger by Brexit MPs and The Daily Telegraph, as his wife had made a series of tweets criticising Brexit.[25] These allegations were countered by his spokesman, who said that Neuberger's wife's personal views had no effect on Neuberger's ability to interpret the law.[26]
Significance[edit]
After the government's appeal was dismissed, the Secretary of State for Exiting the EU formally introduced in Parliament, on 26 January 2017, a bill that, on 16 March, was enacted without amendment as the European Union (Notification of Withdrawal) Act 2017. The act's long title is To Confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU. The act's two sections are to confer on the Prime Minister the power of giving the notice that the Treaty requires to be given when a member state decides to withdraw.[88]