Three planks of Brexit
Although it is likely the Supreme Court will affirm the Divisional Court's judgment in Miller, Paul Stanley QC suggests there are problems with the High Court's decision
In the immediate aftermath of the Brexit referendum, I cast doubt on the argument that the government needs primary legislation to serve a notice under article 50 (SJ 160/28). The Divisional Court has now accepted that argument in R (Miller) v Secretary of State  EWHC 2768 (Admin) (SJ160/42). The intemperate criticism of the careful judgment has been deplorable, but one is still entitled to ask whether it is legally correct.
The issue is simple: to serve its notice the government needs the legal power to do so. The power must derive either from statute, or from common law, in which case we call it a ‘prerogative’ power. All agree that there is no statutory power (yet). The European Union Referendum Act 2015 did not provide one. The only question is therefore whether there is a prerogative power. There are, generally, prerogative powers to conduct international relations. In the ordinary way those would be sufficient to allow the executive to terminate a treaty.
The question is whether they are sufficient in relation to the Treaty on European Union. In particular, are there any statutory or constitutional principles which would prevent the use of the prerogative in this case? In a column as short as this, it is hard to do justice to the court’s reasons for thinking that there are. However, the judgment has three main foundations as follows.
Case of Proclamations
First, the court considers there is a constitutional principle (which it derives from the Case of Proclamations  EWHC KB J22) that the Crown cannot alter individual rights by prerogative. Withdrawal from the EU would remove rights enjoyed in England under EU law by virtue of the European Communities Act 1972, powers enjoyed under that Act, and individual rights enjoyed by UK citizens in other EU member states. Therefore it is impermissible.
That argument mis-states, or at least extends, the principle for which the Case of Proclamations really stands. The true proposition is that the Crown has no general prerogative to alter English law. But altering rights and altering law are not the same thing. Take, for example, the third category identified above. Whenever the Crown makes, or amends, or unmakes a treaty it is possible that UK citizens may acquire or lose rights under foreign systems of law. That is not prohibited; it does not alter the law at all.
The Case of Proclamations seems more relevant when it comes to the rights enjoyed under the Act. But even here the argument proves too much. The Act gives legal effect to rights which ‘from time to time’ arise under the treaties. That has not been taken to prevent the Crown from, for instance, agreeing the terms of EU legislation. When it does so, it presumably does so under the prerogative to conduct international relations. That doesn’t change English law. The law remains always that we have such rights as ‘from time to time’ arise under the treaties. Service of an article 50 notice is different in degree from, say, agreeing to the repeal of an EU regulation, but it is not different in kind. Both are instances of the exercise of the ordinary prerogative. Far from rejecting that prerogative, the scheme of the 1972 Act depends on it.
The second main plank of the court’s argument is that the Act is a ‘constitutional statute’. This is a recent and rather vague category. It was originally invented to explain why ordinary principles of implied repeal should not apply to the Act, where they would have wreaked havoc with the doctrine of supremacy. Whether any special category was needed for that purpose is doubtful. But even if it was, why should any particular conclusion follow from it, so far as the issue in Miller is concerned? No question of implied repeal arises. The Act will not be repealed. A principle that a subsequent act of parliament would not impliedly repeal the 1972 Act implies nothing about what is required to serve an article 50 notice. The ‘constitutional statute’ label then becomes an empty rhetorical device, into which the court can inject a novel doctrine about the prerogative. It doesn’t advance the analysis.
No special provision
That leaves the third plank of the court’s argument. For if it is fishy to suppose that any consequence can flow from simply labelling the Act as ‘constitutional’, we can probably all agree that EU law now occupies a special place in the legal landscape. That then becomes one of a number of features, none of them decisive in itself, which suggests the whole question is just too important to be left to the executive. Intuitively this has some attraction. But it has problems too. Was it always too important? Or did it become so at some point between 1972 and now? And if so, when? What is one to make of the fact that the legislature, knowing of article 50 when it decided to add the Lisbon Treaty to the list of treaties covered by the 1972 Act, made no special provision for it? If one is looking for some sort of implication, must the implication not be clear?The Supreme Court will grapple with these difficulties. Although there is a reasonable chance it will affirm, and will understandably want to be very measured in any criticism of the Divisional Court’s careful judgment, I respectfully suggest the proper answer is not the one the High Court gave.
Paul Stanley QC is a barrister at Essex Court Chambers