Three takes on Miller (the Brexit case)

R (Miller) v Secretary of State for Exiting the European Union is going to keep constitutional lawyers in the UK (and elsewhere in the Commonwealth) very busy for the upcoming months and years. Here's my humble early offerings on it.

The UK Supreme Court surprised no-one on Tuesday when it decided, by 8-3, that Parliament must pass specific authorising legislation before the UK Government can trigger article 50 and so begin the formal process of withdrawing from the European Union (or, "Brexiting").

I say it surprised no-one because even the Government seemed to see the legal writing on the wall, all but admitting in the run-up to the Court's verdict that it expected to lose. I also remarked at the time of the lower Divisional Court's initial ruling that I thought the decision was "a bit of no-brainer." And given the UK populist press' response to that original decision, I suspect the UK Supreme Court would have begun its deliberations minded to uphold the lower court ruling simply to show that the judiciary would not be cowed by the mob.

(No doubt there'll be those who also see the UK Supreme Court judges as no more than elitist members of the establishment who are ideologically opposed to Brexit as a concept and so will do anything they can to stop it ... but as this is a line of argument that presupposes its own truth, I will ignore it.)

Of course, the existence of three dissenting judgments (including a lengthy and well crafted opinion from Lord Reed) shows that my initial "no-brainer" remark was both unfair and inaccurate. Those dissenting judgments also mean that there will be extensive virtual ink - and eventual physical ink, too - spilt by academics debating just who got the decision "right". You can see that already beginning here and here and here. So this is my small and probably irrelevant contribution to that process.

I'll commence with the obligatory noting of any possible New Zealand connection to an issue of international importance. Then I'll give some thoughts on why they majority decided what they did, and why I think that is a good thing, too. Finally, I want to note the role that the interwebz, and legal blogs in particular, played in this case. Because I do legal blogging as well, and so it helps me to feel like it might be important.

First, up - how can we get a New Zealand angle on this story? Unfortunately, the lower Divisional Court's much noted reference to Fitzgerald v Muldoon [1976] 2 NZLR 615 didn't make it into any of the Supreme Court judgments - majority or minority. So Wild CJ's brief contemporary moment of glory has passed.

However, in his place a new antipodean star has risen into the legal firmament in the form of VUW Professor Campbell McLachlan. His 2014 text, Foreign Relations Lawis quoted by the majority to "neatly summarise" the reason why the UK maintains a dualist approach to international and domestic law. No doubt his joy at seeing his work receive this deserved accolade was only slightly diminished by the majority misspelling his name as "McClachlan".

It also is worth noting that this is the second time this month that the UK Supreme Court has approvingly cited Prof McLachlan's text. Which is a pretty rare recognition of scholarly relevance and quality. I can only assume that this respect reflects the "scholarly preparation of research materials and meticulous editing" that occurred during the book's preparation. 

Noting New Zealand's contribution, what then of the UK Supreme Court's decision itself? Let me begin by saying that I like the general "vibe" of the majority's approach. In a nutshell, it viewed the ending of 40-years of UK legal development in tandem with EU law as being such a monumental event of constitutional import that only Parliament ought to be able to authorise its occurrence. The use of prerogative power by the executive government - even a prerogative power that is somehow supercharged by a referendum vote - simply isn't an appropriate way of proceeding.

But, of course, you can't decide a case on the vibe of the matter alone. What of the actual law? Lord Hughes, in his dissent, tries "at some risk of over-simplifying" to boil the case down to its essentials:

the main question centres on two very well understood constitutional rules, which in this case apparently point in opposite directions. They are these:

Rule 1

the executive (government) cannot change law made by Act of Parliament, nor the common law;


Rule 2

the making and unmaking of treaties is a matter of foreign relations within the competence of the government.

The majority thought that "rule 1" controlled the case, as the removal of the UK from the EU inevitably would create changes to the law that applied within the UK and that affected people's rights. Therefore, the executive alone could not trigger the UK's exit from the EU - only Parliament may authorise such a move. The minority, however, believed that "rule 2" was controlling, as the UK-EU relationship is purely a matter of external international affairs. While that relationship involves EU rules becoming part of the UK's domestic legal system, they only do so contingent on the UK actually being a part of the EU in the first place (which is something that the executive government alone has the power to decide).

l think there are then a couple of central reasons for these differing views of the applicable constitutional rule. The first has to do with the way in which the relationship of EU law and domestic UK law is conceived. Is it an independent source of law that the UK Parliament has positively given authority to apply henceforth in the UK (and thus only Parliament can say it no longer is to have that effect)? Or is it law which Parliament says will apply in the UK, but only subject to the executive government independently deciding to join (or leave) the EU?

The answer to that question depends in part upon a reading of the European Communities Act 1972 (what did Parliament mean when it passed this?) and in part upon how one understands the UK/EU nexus (how exactly is EU law brought into the UK?). I have to admit that, not being as immersed in this issue as my UK colleagues have become over the past 40 years, I tend to get a little lost in some of the detail here. Suffice to say that it appears that reasonable minds can differ (and most certainly are differing) over these matters - but 11 of the 14 judges who heard the case saw things the same way.

The second reason for the divergent decisions has to do with the judges' varying views of the role of Parliament, the executive and the judiciary. For the majority, Parliament's only real means of control over the issue of whether EU law applies or not in the UK is through its legislative power. It is, thinks the majority, inconceivable that having made the monumental step of legislating to permit EU law to have effect in the UK, Parliament would be content for the executive branch to unilaterally take all that law back out again whenever it wanted to, for any reason it desired.  

For the minority, the executive's ability to use the prerogative is not so unrestrained. Ministers are politically accountable to Parliament (and, indirectly, to the public generally). So Parliament didn't leave the executive branch free to end the role of EU law in the UK whenever or however it wished - it just chose to control that matter in a political rather than legal way.

Viewed through a political realist lens, you could see either claim as being right. Ministerial accountability is all well and good, but once Article 50 is triggered then (to use an analogy from the case) the bullet leaves the gun and cannot be recalled. The UK will exit the EU no matter how much MPs may howl at and seek to punish the Minister responsible. So the only certain means of exerting parliamentary control is by requiring an authorisation Act. But then again, what Minister would ever pull the Article 50 trigger unless certain that a majority of MPs (and even a majority of the people, voting at a referendum) are on board with doing so? Not having that support in place would be a recipe for governmental suicide. So is there any real danger involved in Parliament leaving the decision to the traditional Royal prerogative?

There is, of course, a whole lot more going on in Miller than this brief synopsis can hope to capture. As I say, it'll keep an academic cottage industry running for a good couple of years (at a minimum). But in closing I want to note one last point about how the case began and subsequently developed.

The first serious discussion that triggering Article 50 (Brexiting) might require express parliamentary authorisation came in the form of this blog post by Nick Barber, Tom Hickman and Jeff King. We cannot, of course, say that the idea would not have occurred to Ms Miller and the other plaintiffs in the case had that post not been written, but certainly it was a blog that brought the claim to widespread attention.

The various arguments over the merits or otherwise of the claim then were thrashed out in some detail on the interwebz generally and the UK Constitutional Law Blog site in particular, especially in the wake of the lower Divisional Court's initial decision. Those discussions led Lord Reed to acknowledge that; "The very full debate in the courts has been supplemented by a vigorous and illuminating academic debate conducted on the web (particularly through the UK Constitutional Law Blog site)." In fact, I'd suggest that the Miller case probably is the first in the UK where the pleadings from each side substantially drew from and refined the views that everyone else could read for free online. 

Which goes to show, I think, the general value and import of academic legal blogging. Of course, not every blog post on matters legal will be "important", and not every case will attract anything like the attention Miller did. But I'm coming more and more to the position that there's little point just putting your views on current matters of law into a journal article that will take months to pass peer review and then months more to appear in print.

If we (where we are legal academics) have something to say, then the sooner we blog it the better. And what we have to say on those blogs should be taken as seriously as the gussied up, formalised papers we finally get out well after the original issue has become history.