The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections

Like many others, I have been thinking about and discussing Miller (R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768) with colleagues today. This is the decision from the High Court that the Government cannot trigger Article 50 in order to begin the process of withdrawal from the EU without getting Parliamentary authorisation first.

Put very shortly (and without wanting to get too far into the details of the reasoning per se), this is because the Court found that, as a constitutional statute and one that created domestic rights and anchored EU rights, the European Communities Act 1972 could not be turned to naught by the Executive. The prerogative power had been constrained by this Act, and it was not within the royal prerogative to make even international treaty decisions (such as withdrawing from the EU) that would disturb this domestic statute. In other words, parliamentary authorisation is required before Article 50 is triggered and the formal process of leaving the EU can begin.

There are already, and will in the coming days, be lots of analyses on the reasoning per se from a constitutional law perspective (see, for example, the reflections of Paul DalyKenneth Armstrong and Aileen McHarg). My purpose here is to offer a few reflections more broadly on the implications of the judgment, especially for those more interested in its practical meaning for Brexit than in its (unquestioned) broad constitutional significance per se.

  1. This will be appealed to the UK Supreme Court. Although many lawyers are expressing confidence that the Supreme Court will follow the High Court in finding that parliamentary authorisation is required, there are some important things to take note of., and especially that the Supreme Court will likely find itself dealing with some more complex devolution-related issues that are on appeal after the Brexit decision in Northern Ireland last week. This does not reduce the likelihood that the Court would find parliamentary authorisation is required, but it may have some implications for the mode of reasoning.
  2. Today’s decision approaches the question of the royal prerogative, Article 50 and Brexit in very broad terms; simply put, this is a big decision making big statements about big questions of constitutional law. Courts almost always have the capacity to narrow down their enquiry; to construct questions as being discrete and particular, and one might imagine that the Supreme Court might decide to take a more ‘minimalist’ approach to the questions this case raises. In truth, I think this is unlikely for the simple reasons that the case really does raise questions of wide and deep constitutional significance, but some ‘trimming’ of the ways in which general constitutional principles are outlined might be expected. This may not change the outcome per se.
  3. The Court made it very clear that parliamentary authorisation is required, but did not determine what the form of authorisation would be. One might interpret it as a simple ‘vote’ to authorise the triggering of Article 50, but the more likely outcome is that a Bill to trigger Article 50 will be expected and then voted on by the Parliament.
  4. In either case, the level of detail will be a matter of political decision-making, contestation, conflict and compromise. One might expect that in order to authorise Article 50 being triggered, Parliament would expect a number of things to be relatively clearly determined in advance. These might include ‘big’ and complex questions about the status of Northern Ireland and Scotland, implications on human rights in Northern Ireland (where particular questions arise vis-à-vis the Good Friday/Belfast Agreement), questions about the border, and the status of EU citizens living in the UK. It might also involve some seemingly smaller, but very significant, questions about things like continuity in research and development funding, key regulatory tasks currently undertaken by EU agencies and so on. Of course, the more detailed the proposition put to Parliament the more the requirement of parliamentary authorisation will delay the triggering of Article 50. I cannot foresee a situation in which, realistically speaking, this is completed in much less than 12 months if the Supreme Court upholds the outcome of this case.
  5. This may well introduce some real complications into the Brexit strategies of the UK. In order to give Parliament some indication of what it might be authorising if it authorises Article 50 being triggered the UK will, presumably, need to have some kind of relatively concrete (although of course not binding) discussions with the European Union itself in order to get a sense of a possible exit deal. In other words, the fairly rigid proposition that there will be no firm negotiation until Article 50 has been triggered should, for reasons of practicality and pragmatism, be relaxed by those who hold it within the European Union itself.
  6. That said, whatever Parliament authorises will have to be somewhat speculative: the final shape and detail of any Brexit deal that might be agreed will be the subject of extensive negotiation and, depending on its content, might require unanimity by the other member states and, in some cases (and very much depending on the content and effects of the deal) that may even require national referenda in some member states. In other words, there is a real possibility that the UK might exit the EU without a ‘deal’ and in authorising the triggering of Article 50, Parliament will need to take that into account. This will not be a situation in which absolute certainty is likely to be possible.
  7. The Court today found—and it is widely agreed in any case—that the Brexit referendum was merely advisory. It does not require the UK to leave the EU. Some have latched onto this to try to suggest that Parliament might indefinitely block or veto Brexit. While this is a technical legal possibility I consider (and I suspect most agree) that it is highly unlikely and would almost certainly be considered utterly illegitimate. This is not to say that Parliament might not try to require a referendum on the proposed Brexit deal (if any); this is a different matter.
  8. A key premise of today’s judgment is that an invocation of Article 50 is irrevocable and will lead to withdrawal from the EU. This was conceded by all parties for the purposes of ‘getting to’ the big constitutional questions of domestic relevance. However, as a matter of EU law this is not by any means clearly the case; there is certainly a possibility that an Article 50 notice might be withdrawn and a state might change its mind about leaving the EU. Ultimately, whether an Article 50 notice can be revoked is a matter of EU law and might be referred to the CJEU to decide. However, even if there were such a reference the Court might decide it cannot be decided in abstract terms (i.e. it might say that Article 50 means what it means within a member state’s constitutional system and that might vary across the member states) and, effectively, decide not to decide. The latter point was brought to me in conversation by Alison Young.
  9. There is, in my view, only a slim possibility that this will trigger an early election in the Spring. An election at that point, and pre Parliamentary authorisation for triggering Article 50, would be perceived as a proxy Brexit2 and there seems to be little if any government desire for this. Authorisation will, as I said at 4 above, almost certainly take a substantial amount of time—anything up to a year, in my view—and so I would be very surprised if there an election in 2017. Post authorisation, however, there might be a case for an election that would give the new government a strong mandate in terms of negotiating the exit and any possible Brexit Deal, and I would not be overly surprised to see a general election being called for the spring of 2018.

For people in Birmingham, we will have a roundtable/Q&A on the case next Tuesday in Lecture Theatre 1 of Birmingham Law School at 6pm. Plans are still being finalised but speakers confirmed so far are me, Adrian Hunt, Natasa Mavronicola and Ben Warwick. More TBC; all are welcome.

The Practical Implications of Miller v SSEEU for Brexit: Nine Reflections

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