Supreme Court holds that legislation is required to trigger Article 50

Last week the Supreme Court issued its judgement in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.  

As observed by Steve Peers, in a succinct summary of the constitutional considerations at play, the case:

“...raised deep questions about a number of developing tensions in the fabric of British constitutional law: between direct and representative democracy; between Parliament and executive; and between devolved powers and UK-wide government. To every question, the answer was, in effect: the Westminster Parliament.” (see here)

The court held, by a majority of 8 to 3, that “the prerogative could not be invoked by ministers to justify giving Notice: ministers require the authority of primary legislation before they can take that course.” [101] The Government has already introduced the European Union (Notification of Withdrawal) Bill into the House of Commons, which will confer upon the Prime Minister the power to notify the European Council of the UK’s intention to withdraw from the EU. The Bill had its second reading yesterday and is expected to progress to Committee stage on 6 February 2017. There will then be a third reading in the House of Commons before the Bill is considered in the House of Lords. The Government have indicated that they still intend to trigger Article 50 before the end of March 2017 and expect that the legislation will be passed in time.

Although the Miller judgement has generated much academic debate (an index of academic commentary can be found here and a collection of brief ‘expert reactions’ to the judgement can be found here) the Supreme Court’s decision will make little practical difference to the Brexit process. The opposition have tabled various amendments to the European Union (Notification of Withdrawal) Bill with a view to ensuring the Government is held accountable to Parliament throughout the negotiations. This is good news for anyone who values parliamentary democracy and abhors unrestricted executive control. However other than this opportunity for increased parliamentary oversight, the Brexit process will remain unaffected by the Supreme Court’s decision.   

Despite this limited practical effect, the judgement has generated a great deal of legal controversy. Many have been critical of the decision, attacking the reasoning of the Supreme Court Justices.   

Mark Elliot is critical of the court’s conclusion that EU law is an independent source of UK law, preferring the reasoning contained in Lord Reed’s dissenting judgement:

“Lord Reed’s analysis of this axiomatic point seems to me compelling, the weakness of the majority’s position being highlighted by the tension barely concealed within it. It is hard to see in what sense the EU’s legislative and constitutional apparatus can be an ‘independent source’ of UK law if the source of EU law’s validity in the UK is itself UK law (in the form of the ECA).” (see here)

Similarly, Timothy Endicott is critical of the Supreme Court’s appeal to the constitutional significance of withdrawal from the UK to justify their decision, observing that “[n]o authority is offered for the proposition that, if a treaty makes a major change to UK constitutional arrangements, it cannot be cancelled without an act of Parliament.” (see here)

Patrick O’Brien echoes this sentiment when he observes that:

“For me it is the right decision despite some flaws in argumentation, but there is no doubt that it depends on an appeal to constitutional principle and to the special nature of EU law itself rather than limiting itself to orthodox statutory construction. It is not hard to see why those who doubt the merits of such an approach have found the reasoning of the majority unconvincing.” (see here)

The judgement, and the extensive academic commentary, will no doubt be considered by students of constitutional law for years to come. It is a case of immense constitutional significance. However, in practice the judgement is nothing but a minor glitch in the Government’s Brexit plan.  

Although the judgement has not derailed the Brexit process, it is not devoid of controversy. Following a reference from the Court of Appeal in Northern Ireland and the intervention of Scotland’s Lord Advocate and the Welsh Counsel General, the court was required to address another thorny issue: the applicability of the Sewel Convention to the Brexit process.   

The court endorsed an orthodox understand of constitutional conventions, holding at paragraph 151 that

“The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary.”

Constitutional conventions are not law; they are merely conventions. They are political in nature and are not legally enforceable in the courts. The Supreme Court held that the recognition of the Sewel Convention in section 28(8) of the Scotland Act 1998 (introduced by the Scotland Act 2016) did not change this.

Although legally uncontroversial, this finding will provoke a great deal of political controversy. As Mark Elliot notes, the court’s conclusion:

“...has the capacity to substantially destabilise the territorial constitution. That is so not least because it exposes section 28(8) of the Scotland Act - inserted in the aftermath of the Scottish referendum - for the smoke-and-mirrors exercise that it always was. The Supreme Court has now confirmed - correctly, in my view - that statutory ‘recognition’ of a convention does not deprive it of its essential character as a convention. But in clarifying that point, the Court reveals the statutory provision to be nothing more than a political token in legislative garb.” (see here)

The fact that the Sewel Convention is not legally enforceable does not necessarily mean that it does not apply. It simply means that whether it applies is a question to be answered by politicians, not judges. It remains to be seen what the political consequences of proceeding with Brexit against the wishes of the devolved legislatures will be.