Brexit update: Miller/Santos in the Supreme Court

Laura Hughes, Browne Jacobson

As was widely predicted, the government lost in the Miller/Santos case in the Supreme Court. But what does the judgment say about why the government could not serve notice under Article 50 of the Treaty on European Union (the EU Treaty) without the consent of Parliament? Are there any wider ramifications for public lawyers arising from the judgment? And what is next for the progress of Brexit?

Firstly, it is worth making it clear that the case did not in any way deal with the question of whether or not the UK should leave the EU. It dealt only with the question of whether the UK can give notice under Article 50 of the EU Treaty without a vote being required in Parliament.

The court distilled the arguments before it into two broad questions:

  • Could ministers use prerogative powers to serve notice under Article 50 of the EU Treaty without the consent of Parliament?
  • Were ministers required to obtain the agreement of the devolved administrations before serving such notice?

The need for consent to trigger Article 50

The court was split eight to three as to whether ministers could use prerogative powers to serve notice under Article 50.

The key point to be determined was whether the European Communities Act 1972 (the 1972 Act), which was introduced by Parliament to legislate for the UK’s accession to the EU, limited what would otherwise be the prerogative power to withdraw from an international treaty without the consent of Parliament. The court accepted that a prerogative power, however well-established, may be curtailed or abrogated by statute, either by express words or by necessary implication. The question was, did the 1972 Act do this?

The Secretary of State argued that the 1972 Act did not just “copy out” the provisions of EU law as they stood in 1972, it gave effect to “whatever may from time to time be the international obligations of the United Kingdom under or pursuant to EU Treaties.” He argued that this allowed for the possibility that the UK may leave the EU, in which case there would be no such obligations on the UK.

The majority of the court disagreed, finding that “there is a vital difference between changes in domestic law resulting from variations in the content of EU law arising from new EU legislation, and changes in domestic law resulting from withdrawal by the United Kingdom from the European Union.”

The judges felt that the latter “involves a unilateral action by the relevant constitutional bodies which affects a fundamental change in the constitutional arrangements of the United Kingdom”, and went on to say that if the Secretary of State’s argument was correct this fundamental change would happen “irrespective of whether Parliament repeals the 1972 Act”, which “would be inconsistent with the long-standing and fundamental principle for such a farreaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone.” They added that this was “all the more so when the source in question was brought into existence by Parliament through primary legislation which gave that source an overriding supremacy in the hierarchy of domestic law sources.”

The majority of the court also rejected the Secretary of State’s argument that because the prerogative power to make and unmake treaties can only be limited by express statutory provisions, the 1972 Act – which does not contain an express statement to that effect – cannot limit the prerogative power in that way. In the judges’ view, because the 1972 Act is an important source of domestic law through the European law it implements, it would take express words in the 1972 Act indicating that the government could withdraw from the treaties and thus remove the source of domestic law and domestic rights, which is not ordinarily possible using prerogative powers. The Act contains no such express language.

The lack of force in the Secretary of State’s arguments was demonstrated by taking the consequences of those arguments through to their natural conclusion. If the Secretary of State was correct, the government could have withdrawn from the EU Treaty at any time after the implementation of the 1972 Act without any kind of referendum or any other vote of Parliament on the matter. This would clearly not have been lawful.

The Secretary of State further argued that subsequent legislation pertaining to Europe demonstrated that there was no intention to limit the government’s prerogative powers in respect of withdrawal from the EU. He pointed to the fact that subsequent legislation specifically required votes of Parliament on other aspects and that accordingly, the lack of such a requirement in relation to service of notice under Article 50 was deliberate. Rejecting this argument, the majority of the court fell back on the general principles relating to prerogative powers: if there was domestic legislation on a matter, prerogative powers were removed. They found that it was not possible to reverse this presumption in reliance on a lack of provision in other legislation.

Finally, the Secretary of State argued that the traditional limits on prerogative powers should not apply to a ministerial decision authorised by a majority of members of the electorate who vote on a referendum. The majority view was to decisively reject this contention on the basis that the European Union Referendum Act 2015 did not include provisions which provided that the outcome of the referendum must be acted upon; this was in contrast to the legislation which dealt with devolution in Scotland and Wales. Accordingly, the result of the referendum, while significant politically, had no legal consequence unless and until Parliament decided that it should have.

The minority view in the court was that, while the importance of parliamentary supremacy over domestic law had to be respected, that principle was not applicable in this case because, as Lord Reed put it, the effect which Parliament had given to EU law in domestic law under the 1972 Act was “inherently conditional on the application of the EU treaties to the UK, and therefore on the UK’s membership of the EU”. Accordingly, the 1972 Act did not impact on the prerogative power to exit from the EU Treaty.

Lord Carnwath added that alongside the principles of parliamentary sovereignty, and the exercise by the executive of prerogative powers, sat the principle of parliamentary accountability. He pointed out that Parliament could hold the executive to account in a variety of ways, including politically. He referred to the government’s intention to publish a Great Repeal Bill, and indicated that as long as the bill was passed before the Article 50 process was concluded then there would be no breach of the various constitutional principles. In the interim, Parliament could and would keep the executive to account in ways other than through legislation.

The need for agreement from devolved administration

The court was in unanimous agreement that, although the devolution legislation had been entered on the assumption that the UK would remain a member of the EU, because foreign affairs are not devolved matters in any of the devolved administrations there was no requirement on the UK government to engage on these issues with the devolved administrations.

The court had also heard arguments on the application of the Sewel Convention, which records the understanding between UK government and the devolved administrations that the UK government would not normally legislate with regard to devolved matters without the consent of the devolved administrations. The devolved administrations argued that the existence of the convention meant that the UK government could not remove rights derived from European law and enshrined in devolved legislation without the consent of the devolved administrations. Rejecting this argument, the court relied on the well-established doctrine that courts cannot adjudicate on political conventions.

Although both the Scotland Act 1998 and the then Wales Bill 2016-17 included a phrase which essentially enshrined the Sewell Convention into legislation, the phraseology of the provisions made it clear that there was no intention to make the agreement justiciable.

Wider ramifications

From a constitutional perspective, this case is hugely significant but for most public and administrative lawyers it will not be a case which they reference daily. The case restated broad constitutional principles and applied them to a specific set of facts. However, there is one area which is more relevant.

The comments of the majority on the status of referendums, while in some respects obvious, are a helpful reminder of the role of Parliament, elected representatives and the electorate. Simply because a referendum occurs and a majority of people vote in favour of a proposition does not mean that government or Parliament are bound by that outcome, at least legally speaking; that is unless the legislation providing for the referendum states otherwise. This is likely to be relevant in the future if more referendums occur in relation to devolution or independence of the devolved administrations.

What next for Brexit?

The government has already passed the European Union (Notification of Withdrawal) Act 2017 and served notice on the EU of Great Britain’s intention to leave the EU.

From there it will be a matter of seeing what deal the UK can secure with Europe.

Remainers will undoubtedly think that the Miller/Santos case has not fulfilled its potential. Even informed remainers, who recognised that the case would not stop Brexit, hoped that the requirement to pass legislation would allow Parliament to try to dictate terms for our departure and lead to a softer exit. It is undoubtedly a political triumph for the government that Parliament was given a ‘blank cheque’ authorisation to serve notice under Article 50, and thus in relation to the negotiations with the EU.

This case is a stark reminder that the courts can only adjudicate on the law in administrative law cases – it is for Parliament to legislate and hold government to account. In this case, for political reasons, Parliament has seen fit to give government the freedom it argued for in court, and which so many of our elected representatives had publically said it was inappropriate for the government to have. If nothing else, the Miller/Santos judgment has shown us the strength of the whip system in UK politics.

No doubt there will be further twists and turns before the UK departs the EU, but there can be now be no doubt that service of notice under Article 50 has taken us one step closer to exit.

Case reference: R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.