In R (on the application of Miller and another) v Secretary of State for exiting the European Union [2017] UKSC 5 (24 January 2017), the Supreme Court held (by a majority of eight lords against three) that the government cannot trigger article 50 without an Act of Parliament authorising it to do so.
Following the referendum of June 2016, the issue was whether a formal notice of withdrawal can lawfully be given by the government without prior legislation being passed in both Houses of Parliament and assented to by HM The Queen.
Their lordships observed: ‘It is a fundamental principle of the UK constitution that, unless primary legislation permits it, the royal prerogative does not enable ministers to change statute law or common law.’ They also accepted the general rule that the government’s power to make or unmake treaties is exercisable without legislative authority; however, they noted that this general principle is based on the ‘so-called dualist theory’ that international law and domestic law operate in independent spheres.
Turning to the European Communities Act 1972 art 2, their Lordships pointed out that it authorises a ‘dynamic process’ by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes. The 1972 Act therefore created a new constitutional process for making UK law.
Their Lordships rejected the secretary of state’s argument that the loss of EU rights has already been sanctioned by the 1972 Act; withdrawal by the UK from the EU involves a unilateral action by the relevant constitutional bodies, which effects a fundamental change in the constitutional arrangements of the UK. As such, it differs from changes in domestic law resulting from variations in EU law. It would therefore be inconsistent with long-standing and fundamental principles for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision.
Their Lordships added that the High Court had also been right to hold that changes in domestic rights acquired through the EU treaties represented another reason for the requirement for an Act of Parliament.
Why it matters: Their lordships observed that ‘this case has nothing to do with issues such as the wisdom of the decision to withdraw from the EU, the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of any future relationship with the EU.’ Their lordships thus held back from giving explicit instructions for the Brexit process. Their decision is therefore a political inconvenience for the government but not the ‘nightmare scenario’ some government officials had feared.
In R (on the application of Miller and another) v Secretary of State for exiting the European Union [2017] UKSC 5 (24 January 2017), the Supreme Court held (by a majority of eight lords against three) that the government cannot trigger article 50 without an Act of Parliament authorising it to do so.
Following the referendum of June 2016, the issue was whether a formal notice of withdrawal can lawfully be given by the government without prior legislation being passed in both Houses of Parliament and assented to by HM The Queen.
Their lordships observed: ‘It is a fundamental principle of the UK constitution that, unless primary legislation permits it, the royal prerogative does not enable ministers to change statute law or common law.’ They also accepted the general rule that the government’s power to make or unmake treaties is exercisable without legislative authority; however, they noted that this general principle is based on the ‘so-called dualist theory’ that international law and domestic law operate in independent spheres.
Turning to the European Communities Act 1972 art 2, their Lordships pointed out that it authorises a ‘dynamic process’ by which, without further primary legislation (and, in some cases, even without any domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over all domestic sources of UK law, including statutes. The 1972 Act therefore created a new constitutional process for making UK law.
Their Lordships rejected the secretary of state’s argument that the loss of EU rights has already been sanctioned by the 1972 Act; withdrawal by the UK from the EU involves a unilateral action by the relevant constitutional bodies, which effects a fundamental change in the constitutional arrangements of the UK. As such, it differs from changes in domestic law resulting from variations in EU law. It would therefore be inconsistent with long-standing and fundamental principles for such a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision.
Their Lordships added that the High Court had also been right to hold that changes in domestic rights acquired through the EU treaties represented another reason for the requirement for an Act of Parliament.
Why it matters: Their lordships observed that ‘this case has nothing to do with issues such as the wisdom of the decision to withdraw from the EU, the terms of withdrawal, the timetable or arrangements for withdrawal, or the details of any future relationship with the EU.’ Their lordships thus held back from giving explicit instructions for the Brexit process. Their decision is therefore a political inconvenience for the government but not the ‘nightmare scenario’ some government officials had feared.
