Miller, Brexit, and the European Court
Professor Abimbola A Olowofoyeku explains why a Supreme Court reference to the Court of Justice of the European Union may be required before Brexit can be implemented
On 3 November 2016, a formidable bench of the Divisional Court, comprised of Lord Thomas of Cwmgiedd, Master of the Rolls Sir Terence Etherton, and Lord Justice Sales, held in R (Miller) v Secretary of State for Exiting the European Union ( EWHC 2768 (Admin)) that the Crown cannot use royal prerogative powers to invoke article 50 of the Treaty on European Union (TEU) to start the process of the UK's withdrawal from the EU.
Lord Thomas, delivering the judgment of the court, applied a settled and long-standing principle of constitutional law '“ that the Crown cannot change the law by an exercise of the royal prerogative. This principle dates as far back, at least, to the Bill of Rights 1689. Article 50 prescribes the process whereby an EU member state may withdraw from the union, 'in accordance with its own constitutional requirements' (article 50(1)). A member state that wishes to withdraw is required to notify the European Council of its intention (article 50(2)), upon which a two-year countdown for exit (negotiated or otherwise) would commence. This period may only be extended by a unanimous decision of the European Council (Article 50(3)).
UK constitutional arrangements
The Miller decision was about the UK's 'own constitutional requirements', and the court's reasoning was straightforward. The European Communities Act 1972 (ECA 1972) incorporates EU law into UK law, and gives EU law primacy over UK enactments, present, past or future (section 2(1), section 2(4) ECA 1972).
By virtue ultimately of the 1972 Act, UK citizens enjoy a plethora of rights originating from EU law. When the UK withdraws from the EU, all those rights would be extinguished '“ unless re-enacted or specifically retained by a new act of parliament. It is obvious that they will (or can) not all be re-enacted or retained '“ otherwise, withdrawing from the EU would be pointless. Thus, some rights would inevitably be lost.
None of these points was controversial. Neither was the power of parliament, via legislation, to repeal the ECA 1972. The contentious issue was whether the government has the legal power to give notification under article 50 without approval of parliament. What the 'approval of parliament' means in this context is open to debate '“ but Thomas LCJ (endorsing the views of Laws LJ in Thoburn v Sunderland City Council  EWHC 195 (Admin);  4 All ER 156, -) was clear that the ECA, as a constitutional statute, cannot be impliedly repealed by an act of parliament (at ).
If the ECA cannot be impliedly repealed by statute, then nothing short of an express repeal in terms by a statute would suffice. This much was stated by Laws LJ in Thoburn (at ): 'A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and state, by unambiguous words on the face of the later statute'. The sentiment was repeated by Thomas LCJ in Miller (at ): 'It [the ECA 1972] can only be repealed if parliament makes it especially clear in the later repealing legislation that this is what it wishes to do'. This suggests that parliamentary 'approval' of the invocation of article 50 cannot come via a parliamentary process that falls short of the enactment of primary legislation which authorises the executive to trigger article 50 and which contains clear words indicating the intention that the ECA 1972 is to be repealed. The precise form that those clear words must take will no doubt be the subject of much debate.
The nub of the decision of the Divisional Court in Miller is arguably the propositions that a notification under article 50 is 'irrevocable', and cannot be conditional (at ). That this is so was common ground between the parties. Furthermore, the inescapable outcome of notification under article 50 is complete withdrawal of the UK from the EU (at ), with all the attendant consequences.
This being the case, a pure exercise of prerogative powers to invoke article 50 would inevitably result in fundamental changes in the law, and in UK citizens losing a number of rights that are currently enshrined in UK law. Thus, the Crown would have been able to change UK domestic law, and to deprive UK citizens of existing rights, by an exercise of the royal prerogative. This, of course, would violate established rules of our constitution, and would not be 'in accordance with [our] own constitutional requirements' under article 50. It is not surprising, therefore, that the government lost the case; the court could hardly have come to a different decision.
The government intends to appeal against the judgment; but, unless it withdraws its concession that a notification under article 50 is irrevocable, it is difficult to see how it would succeed in the appeal. This brings me to the point of this commentary. While member states ought not to be permitted to play games by giving conditional notifications, it is not self-evident that a notification under article 50 must be considered irrevocable.
Although article 50 does not make explicit provision for withdrawal of a notification, there is nothing in the text that positively dictates that this is an inescapable conclusion. The meaning of article 50 is a matter of EU law, and, regardless of agreements in understanding by UK lawyers, it must have the same meaning across the EU.
Clearly, experienced and senior counsel do not concede points lightly. Thus, considerable weight must be attached to the agreement by a number that an article 50 notification is irrevocable. On the other hand, we have the reported view of Lord Kerr, the 'author' of Article 50, that invoking it is not 'irreversible'. But such a view is, like the consensus of counsel, ultimately immaterial, since the correct construction of article 50 is a question of EU law. It is not clear what is the thinking of the CJEU about article 50.
The Divisional Court arguably decided as it did in Miller on account of the inevitable outcome of an 'irrevocable' notification by the Crown. If, however, the notification is revocable, and there is no inevitable consequence to it, then there may be nothing preventing the use of the royal prerogative here. The argument goes thus: if somewhere down the road, parliament (or even the country) reject the 'deal' that is on offer following negotiations, the UK would simply withdraw its article 50 notification, and would remain in the EU; if parliament approves the deal, there would, of necessity, be a statute to repeal the ECA 1972. Either way, the Crown would not have used prerogative powers to change the law or deprive UK citizens of their existing legal rights under domestic law.
The difficulty with this line of argument would lie in what happens if there is no agreement on expiry of the two-year countdown and there is no extension on offer. This would result in the UK's membership of the EU terminating automatically. In this case, the Crown would have succeeded in using prerogative powers to change the law and to deprive UK citizens of their legal rights. Thus, it may well be that, even if an article 50 notification could be revoked, the decision would still be that the Crown cannot simply use prerogative powers to trigger article 50 without parliament's 'approval'.
At the moment, there is much that is yet to be determined authoritatively. It may be necessary for the Supreme Court, before coming to its own decision, to refer to the CJEU for a preliminary ruling (under article 267 of the Treaty on the Functioning of the European Union) the question whether an article 50 notification is revocable. Indeed, it would be difficult for an apex court of a member state to make a ruling on the interpretation of an EU treaty provision without the benefit of the views of the CJEU thereon, unless the interpretation is so obvious as to leave no scope for any reasonable doubt, which is arguably not the case here.
If the government concedes the irrevocability point before the Supreme Court as it did before the Divisional Court, then there will probably be no reference to the CJEU. This may perhaps be the politically astute position for the government to take, for a reference to the CJEU (in effect, seeking for possible succour from Europe) may be too much for supporters of Brexit to swallow.
A final irony?
It ironic that some who campaigned for the UK to leave the EU in order to restore sovereignty to parliament now seem to support the idea that the executive should bypass the legislature in order to carry out its Brexit agenda. It would be even more ironic if the salvation of Brexit turns out to lie in a ruling from the CJEU that notification under article 50 can be withdrawn before expiry of the two-year countdown.
Professor Abimbola A Olowofoyeku is a professor of Law at Brunel Law School