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Cans Of Worms And The Constitution? - The Supreme Court And The Miller Case

On 3 November 2016 in the High Court the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales delivered the most important legal decision until....well, until the Supreme Court delivers its verdict on the same Miller case sometime in early 2017. Not, as they were at pains to point out (at para.5), that their verdict had implications for Brexit: how could it? For 'government policy is not law'. Contrary to the disgraceful attacks on the judges that followed from sections of the press, they were in no sense trying to frustrate the 'will of the people', because that was not an issue before the court.

What was at issue instead, and is at issue again before the Supreme Court, is the power of the executive. Government policy may not be law, but that policy is still subject to the rule of law and has to operate within the law. In other words, policy can only operate where it is legally entitled to do so: governments cannot choose to do whatever they wish to, however popular such actions might be, if they do not have the legal title to do so. This rule of law establishes the constitutional framework whereby effect is given to the 'will of the people' whether exercised through electing a parliament at a general election, or through a referendum. It also, coincidentally, protects against arbitrary government or demagoguery.

In the Supreme Court Miller case, the central issue is 'whether the executive government can use the Crown's prerogative powers to give notice of withdrawal' from the European Union. The case therefore turns not on the fact of withdrawal, but on the legal basis for the process. The government's case is that the Crown prerogative to make treaties and international policy entitled them to trigger Art. 50 of the Lisbon Treaty (which, ironically, in opposition, the Tories vehemently opposed). This prerogative power in the international sphere was not contested. The court (at para.92), came to the view that the European Communities Act 1972 had introduced 'EU law into domestic law' and that, as no prerogative power exists to override domestic law enacted by parliament, it could not be used in this instance. It followed therefore, that prerogative powers could not be used to trigger Art. 50 nor, as the government accepted (at para.105), did the legislation setting up the EU referendum supply such legal grounds. The implication of the ruling was therefore that explicit parliamentary approval was needed to trigger Art. 50.

Since it is clear that parliament will give such approval, you might wonder why the government immediately appealed to the Supreme Court. That is without a doubt a matter of internal party management: there are too many conflicting positions on Brexit on the Tory backbenches and indeed in Cabinet, hence Mrs May's desire to be able to negotiate without having to give a running commentary. It has been suggested that a simple three-line Bill, such as is rumoured to have been prepared in the event the government loses in the Supreme Court, would solve that problem. That may be true in the Commons, but not in the Lords. Given that the referendum gave no mandate for the nature or process of Brexit, their Lordships would be quite within their rights to write amendments into the Bill and these changes may not be so easily taken out when sent back to the Commons. Mrs May's desire to avoid spelling out what Brexit means will, in other words, likely continue to cause her and her party headaches in parliament as well as in the courts and by-elections.

There are, in any case, also legal grounds for the appeal as it is clear from the skeleton argument submitted by the government to the eleven judges of the Supreme Court that it would like a ruling to clarify (in its favour) the extent of its prerogative powers. Nor is it by any means certain that the government will lose again. Much legal opinion, including from fervently pro-EU lawyers, raises doubts about the grounds of the decision in the Miller case. Many have spent the month between the initial ruling and the Supreme Court stage of Miller suggesting ingenious ways of strengthening the government's arsenal of legal arguments.

Reflections, for instance, that prerogative powers have been used to enact various rights, including rights under the EU treaties, however, do not prove that the same prerogative powers can be used by decree to remove those rights. In any case, the government's submission seems to have taken little account of most of these. The main exception appears to be Cambridge Professor Mark Elliott's contention that statutes such as the 1972 Act are simply channels for giving effect in domestic law to international agreements made under prerogative powers. This view makes its way into the government's skeleton argument at para.7 in the statement that this Act 'is the conduit by which [treaty] obligations are given effect in domestic law'.

This is a questionable view which confuses the authority of parliament with the decisions made by parliament. In other words, it does not matter where the rights enacted under the 1972 Act derived from; what matters is they rest on the authority of parliament enshrined in that legislation.

Of course, the issue of the 'will of the people' as expressed through a referendum was not engaged in that case, as it is in Miller. Whether this makes a material difference is another matter. A majority certainly voted to leave the EU, but it a stretch to say that they also voted to do so through use of prerogative powers. There is a wider issue of what is meant by 'popular sovereignty' and it would certainly be desirable to clarify this more tightly. The place to do this, however, is surely Parliament itself, rather than within a Supreme Court setting.

The Supreme Court, in any case, already has plenty on its plate. In addition to the prerogative powers issue, it will also have to consider the implications of Art. 50 for the devolved politics of the UK. These were only briefly considered in the 3 November judgement. Now submissions from Scotland, Wales and Northern Ireland form part of the 33,840 pages of material the Supreme Court will have to wade through.

All of this points to a problem central to the Miller case. Art. 50 of the Lisbon Treaty allows an EU Member State to 'withdraw from the Union in accordance with its own constitutional requirements'. For most of the other 27 Member States this is a less contentious issue. For the UK, with a relatively uncodified constitution and a devolution settlement which is still evolving - not least given that the implications of the 2016 Scotland Act have yet to be tested in the courts - this is certainly not the case. These constitutional questions, rather than Brexit, are really what is at issue in this instance. The Supreme Court is in essence being asked to make a judgement on principles that have far wider consequences than the ostensible bones of contention in Miller. In the High Court, the Lord Chief Justice and his colleagues effectively got themselves out of this dilemma by a ruling of constitutional conservatism, in favour of the continuing centrality of parliamentary sovereignty to the UK constitution. The Supreme Court may not find it easy to get to a similar point given the complicating factor of the devolution issues they have been asked to consider. However, when they deliver their ruling in early 2017, notwithstanding the risk of being pilloried by the Daily Mail, they may well find that a judgement which affects as little as possible conventional understandings of those constitutional requirements is the one which opens the fewest cans of worms.

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