Public Law

Parliamentary Sovereignty casesSeparation of Powers Cases

R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

Key Point

• Government lacks the authority, through use of prerogative powers, to bring about the removal of EU law as an independent source fundamental constitutional change.
• EU law, by virtue of section 2 of the European Communities Act 1972, had become a source of domestic law, to give notice under Article 50 would entirely remove this source of domestic law,  a significant constitutional change that requires the consent of Parliament.

Background

• Under the dualist legal system in the UK, the authority to enter and break treaties is a prerogative power exercised by ministers on behalf of the Crown and treaties only have effect in international law - to have effect in domestic law they must be implemented by an Act of Parliament
• The EU Treaties including the TEU, however, were exceptions as they took effect in domestic law through the European Communities Act 1972, through s.2, which automatically incorporated EU law and rulings from the European Court of Justice, into domestic law (while the Act was still in force).

Facts

• In 2017, following the 2016 Brexit referendum, the UK Government announced its intention to trigger Article 50 of the Treaty on European Union (TEU) to withdraw from the EU.
• Miller and others sought in the High Court to bring an action for judicial review, claiming that the Government did not have the right to give the notice under article 50 without a vote in Parliament permitting it.
• The High Court considered that the Government did not have the authority to issue the notice under article 50, but allowed appeal to the Supreme Court.
• This was the first case to ever be heard en banc by the Supreme Court – i.e. with the full contingent of justices (11 in this case, with one vacancy).