There is an irony in the fact that the decision handed down last month in Miller v Secretary of State  EWHC 2768 (admin) was the week of Guy Fawkes’ Day night. There are parallels between the two events. I will come back to this parallel a little while.
The judgment, which ruled that the government does not have power to give notice of withdrawal from the European Union and Article 50 of the Treaty on European Union, is a remarkable document for all sorts of reasons. As with so many events in British history over the last millennium, it has much to do with the question of Britain’s independence from, or subservience to, Europe.
It should be said at the outset that the judgment will have come too many of us as a surprise. We have been used to the notion, we thought very well established, that the government of the day is entitled to exercise well-recognised prerogative powers, including the powers to make or end wars, and to make or unmake treaties. The Treaty on European Union is a treaty which has been amended, not least by the Lisbon treaty, which was ratified by the UK pursuant to the European Communities (Amendment) Act 2008. It is that treaty which provides for how a member of the European Union may leave the union, by Article 50. Article 50 is well known, but for ease of reference, its text is set out below. Now, the European Communities (Amendment) Act 2008 provides that in various respects, the authority of Parliament is required if various things are to be done. It does not provide that the authority of Parliament is required for an Article 50 withdrawal to be notified. You might think that it is pretty clear from that that Parliament has not abrogated the usual prerogative power of the government to do things pursuant to our international treaties. Not only, you might think, does the government have this power, but given the clear results of the referendum, ordered by Act of Parliament, it is a power which the government is required in conscience to exercise.
Not only is this part of our unwritten constitutional law, it also makes compelling and necessary sense. How would it have been, in 1939, if the government had been required to obtain an Act of Parliament before declaring war on Nazi Germany? How would it have been in 1945 if the government had been required to obtain the approval of Parliament to the negotiations at Yalta? How would it have been if the government had been required to obtain an Act of Parliament before throwing Argentina out of the Falkland Islands? Or negotiating the international trade treaties which are so important for our economy? All of these matters have a profound effect on the lives of British citizens, resident both in Britain and overseas. They have all had a profound effect on the rights which we enjoy, or do not enjoy. And yet it would be gravely damaging and utterly absurd if the government were not given freedom to act in these matters without the intervention of Parliament, which would cause huge delay and compromise our negotiating position by requiring the government to expose its negotiating hand in a public forum.
But take a step back. Suppose you passionately believe of the integration of European law into the United Kingdom. The last time England was invaded was nearly a millennium ago; the result of the Norman conquest was that most of what is now England and a good deal of what is now France were under common governance, with very considerable influence being exercised by the Catholic Church based on Roman. In 1485, the Plantagenet dynasty of the Normans was eventually toppled by Henry VII, and his son Henry VIII “took back control” by removing Rome’s dominance over much of people’s lives. There followed a long period where that independence was under very real threat from Roman Catholics, both at home and overseas. Philip of Spain raised an armada to try to invade. Catholic Bloody Mary tortured and murdered her way through her opposition. And, of course, Guy Fawkes tried to kill King James I by blowing up the Houses of Parliament. It has to be conceded, of course, that these people were passionate in their beliefs. They genuinely felt that the country should be part of the European community, as it then was, and did not think that they were breaking the law, because they thought that the Roman imperative – that England should never have left the fold – was the law.
That was not the end of it of course. Napoleon Bonaparte killed millions of people in his campaign for European unity, under French control, and there are many who even today regard him as a hero. Adolf Hitler killed even more. There are a few that regard him now as a hero, but when he was in power, he was hugely popular, particularly among people not only in Germany but also throughout Europe who welcomed a united Europe.
There are numerous other features of history which indicate the same thing. There is a big body of opinion on continental Europe that Europe should be politically and legally united. And a sizeable minority of opinion in the UK to the same effect.
So, if you are a passionate believer in One Europe, you probably think that EU law is now inextricably embedded into English and other UK law. And if, in your heart, you believe that, then you probably believe that the government has no power to invoke Article 50, even if so mandated by a referendum of the people. In fact, you probably think, in your heart, that requiring the government to go through the mill of endless moaning amendments from Jeremy Corbyn and his crew, not to mention the House of Lords, is quite a good wheeze for ensuring that the people never get their wish to leave fulfilled.
And here is the thing. The Chief Justice evidently does so believe. John Thomas, Baron Thomas of Cwmgiedd, the Lord Chief Justice, is one of the Founding Members of the European Law Institute, which describes itself as:
a non-profit organisation that conducts research, makes recommendations and provides practical guidance in the field of European legal development with a goal of enhancing the European legal integration.
Among ELI’s core tasks are:
to evaluate and stimulate the development of EU law, legal policy, and practice, and in particular make proposals for the further development of the acquis and for the enhancement of EU law implementation by the Member States;
I am not suggesting for one moment that The Chief Justice or the other members of the court were not seeking to bring an independent judicial mind to bear. But most eminent constitutional lawyers think the matter was wrongly decided. Thus
Finnis, ‘Terminating Treaty-based UK Rights’ UK Const. L. Blog (26 Oct 2016) (available at https://ukconstitutionallaw.org/)
Summary: It is incorrect to say that treaty-based rights cannot be removed by the executive. Rights given under the EU Treaties are not ‘statutory’ rights, and rather the ECA merely operates to give legal effect contingently to such rights as arise on the international plane. A parallel can be drawn with between the EU Treaties and the double-taxation treaties: the latter give rights which have legal effect through statute though, as Finnis argues, no one would suggest that Parliamentary involvement would be required to terminate those treaties.
Feldman, ‘Brexit, the Royal Prerogative, and Parliamentary Sovereignty’ UK Const. L. Blog (8 Nov 2016) (available at https://ukconstitutionallaw.org/)
Summary: It is not the case that a notification under Article 50 cannot be withdrawn once given, and therefore the High Court’s decision was based on a false premise. This false premise makes it far harder for the claimant to persuade a court that the Article 50 notification directly causes a loss of rights. The Court was wrong to interpret that ECA 1972 as precluding the use of royal prerogative: the Court, in relying so heavily on constitutional principles as guides for statutory interpretation, essentially presumed the answer to the question it was asking. Further, there are several examples of the Courts recognising that prerogative powers can be used to change domestic law if the power genuinely is part of the prerogative and so long as the change is not inconsistent with an Act of Parliament which occupies the field in question.
Elliott and H.J. Hooper, ‘Critical reflections on the High Court’s Judgment in R (Miller v Secretary of State for Exiting the European Union UK Const. L. Blog (7 Nov 2016) (available at https://ukconstitutionallaw.org/)
Summary: The ECA 1972 does not create statutory rights, but rather is a conduit for rights which are created by EU law. EU law has not acquired a sui generis status, and the Court was insufficiently sensitive to the nature of the rights in question: if they are not domestic rights created by Parliament, then it is wrong to suggest that the executive’s prerogative power would displace or override the will of Parliament. Neither is the Court’s conclusion that the ECA is a ‘constitutional statute’ irreproachable. Whether a statute is ‘constitutional’ is a question of common law and not, as the Court seemed to approach the issue, Parliamentary intent. The questionable conclusion that the ECA is ‘constitutional’ led the Court to rely unduly on constitutional principles in its interpretation and, further, the Court did not ord due weight to competing principles such as the context of the question and popular sovereignty.
There are dissenting voices, suggesting that although the court was wrong on the letter of the law, yet it is preferable to be cautious:
Young, ‘R (Miller) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin): Constitutional Adjudication – Reality over Legality?’ UK Const. L. Blog (9 Nov 2016) (available at https://ukconstitutionallaw.org/)
Summary: A striking feature of the Court’s approach in Miller was its focus on substance rather than form. For example, whilst as a matter of strict legal principle the ECA 1972 is a conduit through which EU rights are incorporated into UK law, the Court preferred to consider the active effect of the Act, that is that the legislation ‘endorsed’ those rights, thus making them the equivalent of statutory rights. Professor Young concludes that the Court was right to adopt a substantive (as opposed to a formalistic) approach because of the context of the decision: the actual consequences of triggering Article 50 are unknown, and it is preferable to prevent the executive acting unconstitutionally as a pre-emptive measure. The Court erred on the side of caution, and it was appropriate for it to do so.
It is an interesting feature of the Brexit debate that “Project Fear” (as it was known) won the ground of suggesting that staying in Europe was the safer option. Given the turmoil of the EU that is now emerging, there is much to be said for the opposite view: that getting out now is the safe option. Views will differ about this.
The matter is coming back to the Supreme Court this coming week. Query if it is smart for the government to rely on the advocacy in court of the Attorney-General, Jeremy Wright MP, who is a relatively junior lawyer recently promoted to high office (well, he is a Tory MP) and, some might say, well and truly outgunned by the much more experienced lawyers on the Remain side. How will it go? The fact that Uncle Tom Cobley and all from the Remain side (including people from Guyana, the Portugual, Scotland, Ireland, etc) are being allowed to intervene, but not it seems anyone who is English and who wants the referendum vote actioned without delay, does not bode well. It is hard to disagree with Professor Mark Elliott, who remarks:
Whether one finds the various arguments for or against the Government more compelling is perhaps ultimately (at least in part) a matter of perspective that raises questions about the extent to which EU law remains distinct from (or is conversely a part of) domestic law, and about the extent to which traditional analyses of the constitution remain viable in this new era of devolution.
How many members of the Supreme Court believe in their hearts that the laws of EU have become an indivisible part of the law of the United Kingdom? I have no idea. But we are about to find out.
Nobody can seriously doubt that this is a wrecking action, designed to frustrate the result of the referendum. The real danger, if the Supreme Court upholds the Divisional Court, is a constitutional one, and in particular as to the position of the House of Lords, for it is there that the opposition to Brexit will probably be strongest. There is a prospect, not entirely fanciful, that the government might appoint a thousand Brexiteer peers, to see them off. That would be pretty terminal for the House of Lords. And an early general election would be pretty terminal, one might think, for the Labour Party. Leaving the SNP as the biggest opposition party. And thus setting up England v Scotland.
Nor can anyone seriously doubt that we are in choppy constitutional waters here. The vast majority of the establishment (whose nests are now very well-feathered, thank you for asking) want to stay in the EU. The British people have voted to leave.
Who will win? The elite, or the people?
Article 50 states:
“1. Any Member State may decide to withdraw from the Union in
accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
 I am indebted here to the useful summaries of Ben Haseldine of Keating Chambers.
 We are not told who all the parties were in the Divisional Court decision. Some were described as “AB, KK, PR and Children”. They were described at para 7 of the judgment as “another group of interested parties … who are children and their carers whose immigration status in the United Kingdom may be affected as a result of notification under Article 50.”