The executive’s Brexit: the UK Constitution after Miller

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The judgment of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union required the government to seek parliamentary approval (through legislation) for the triggering of Article 50, which formally started the Brexit process. In this post, Mark Elliott, Jack Williams and Alison Young argue that parliament has failed to capitalise on the court’s decision and that it is the executive, not parliament, that is truly in control of the Brexit process.

Whether you like your Brexit ‘hard’, ‘soft’, or ‘red, white and blue’, one thing is clear – this will be the executive’s Brexit. Despite the Supreme Court decision in Miller handing parliament a golden opportunity to shape Brexit, Theresa May’s government has been in the driving seat, largely unimpeded, ever since the 2016 referendum in favour of leaving the EU. Parliament has consistently been a passenger.

The first pitstop on the executive’s journey to Brexit was the triggering of Article 50. As is by now well known, the government claimed that it already had the power to trigger the process of the UK’s leaving the EU by virtue of its foreign relations prerogative. Indeed, the government’s initial intention was to trigger Article 50 by the end of 2016, necessitating an expedited process in the Miller litigation, leapfrogging the Court of Appeal to ultimately reach the Supreme Court by the end of the year. If one believes that the triggering of Article 50 (in March 2017) was premature, then it is troublesome to imagine what would have happened if, in the absence of the litigation, it had been triggered six months earlier.  

The Supreme Court came down firmly in favour of parliament, ruling that the government would be able to initiate Brexit only if parliament were to empower it to do so, albeit that the UK parliament could lawfully go ahead and authorise the triggering of Article 50 whether the devolved legislatures liked it or not. This was on the basis that the foreign relations prerogative does not extend, by its very nature, to changing or affecting domestic law or rights. At the time, Miller therefore appeared to be of immense political significance because it put parliament so firmly in the Brexit driving seat. However, 18 months on, the picture looks rather different, and the judgment has proven to be far from the final word on the underlying controversies. Continue reading

Parliament and the withdrawal agreement: What does a ‘meaningful vote’ actually mean?

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The government has repeatedly assured MPs that they will get the opportunity to have a meaningful vote on any agreement reached with the EU related to the UK’s withdrawal as part of the Article 50 process. This post by Jack Simson-Caird examines the role of the House of Commons and the House of Lords when it comes to approving and implementing that agreement. 

Since the UK government began negotiations over the withdrawal agreement under Article 50, questions have been raised about how parliament will approve and implement the final agreement.

The government’s stated position has long been that parliament will have the opportunity to approve the final agreement through a motion ‘to be voted on by both Houses of Parliament before it is concluded’. On 13 December 2017 David Davis MP, the Secretary of State for Exiting the European Union, gave details of the procedures for both the approval and implementation of EU Exit Agreements. He explained that the approval process is separate from the process of implementing the agreement through primary and secondary legislation.

Approving the withdrawal agreement

David Davis proposed that the process of approving the withdrawal agreement will take the form of a resolution in both Houses of Parliament. This resolution will cover both the Withdrawal Agreement and the terms for our future relationship”. The Supreme Court noted in Miller in January 2017 that such a resolution does not have any legislative effect, but is nevertheless ‘an important political act’. Continue reading

The Article 50 judgement and withdrawing from treaties

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The coverage of last Thursday’s High Court judgement on Article 50 has understandably focused on its immediate consequences for the process by which the UK will leave the European Union. However, if upheld by the Supreme Court, it is also likely to have wider constitutional significance. In this post Harmish Mehta explores the implications of one part of the court’s judgement, that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law or diminish the rights of individuals. He suggests that this could mean that the government could not withdraw from the European Convention on Human Rights without parliamentary approval.

Part of the UK constitution is the judgements of its courts of law. Such judgements can have transformative and prolonged effects on UK constitutional practice.

On 3 November, the High Court (‘the court’) handed down its judgement in R (Miller) v Secretary of State for Exiting the European Union ([2016] EWHC 2768), which stated that the executive does not have power under the Crown’s prerogative to give notice pursuant to Article 50 of the Treaty on European Union (‘TEU’) for the United Kingdom to withdraw from the EU [para. 111]). The UK Supreme Court will hear the appeal against the judgement on 5-8 December.

Of course, Miller has a considerable impact on the prospects of the UK exiting the EU in the near future. However, it should not be forgotten that Miller is a judgement of wider constitutional importance. Subject to it being modified by the Supreme Court, it has the potential to shape the UK constitution beyond Brexit. This is partly the consequence of its appeal to, and development of, longstanding and far-reaching principles of constitutional law. It rivals even R (Jackson) v Attorney General ([2005] UKHL 56) in its exploration of the UK’s constitutional history and statements of apparent constitutional truisms.

In this post I will explore the implications of one part of the court’s judgement, which amounts to what I will call, for brevity alone, the ‘unmaking principle’. This principle is that the Crown’s prerogative may not be used to unmake a treaty without parliament’s approval if that would change domestic law, be it statute or common law, in any way, or diminish rights of individuals.

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