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For and duties in UK individuals, including the case

 For hundreds of years, the United Kingdom has
relied on its own system of governing, which has kept the rule of law separate
from the parliament. A constitution
is typically in the form of a readily identifiable document. It has a special
sanctity, thought to be concrete in nature, setting out the framework and main
functions of the state organs giving the principles they should adopt (adhering
to people’s rights and liberties). Unlike many of the leading countries around
the world, the United Kingdom’s constitution is uncodified and has not been
assembled into one consolidated document. However, over time, documents such as
the Magna Carta in twelve-fifteen, and the Bill of Rights in eighteen
sixty-nine, have provided stepping stones towards documenting the laws, customs
and conventions. As stated by Jack Straw, “….in no one document can be found what is called the
‘British Constitution’. The constitution of the United Kingdom exists in hearts
and minds and habits as much as it does in law”1.
 Over
the years judicial proceedings have served to clarify and confirm the rights
and duties in UK individuals, including the case of Bushell’s (1670), Vaughan (1677), Somerset v Stewart (1772), Beatty
v Gillbanks (1882). Theorists such as Blackstone, Bagshot, and May have
also played their part in contributing towards documentary sources for the United
Kingdom’s uncodified system.

The
main sources in the United Kingdom include statute law, common law, historical
documents, and conventions. The United
Kingdom European Union membership referendum and the Brexit referendum took
place on the twenty-third of June two thousand and sixteen. On the twenty-fourth of January two thousand
and seventeen, the Supreme Court gave judgment in R
(Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5,
259. “The Government then pursued to
establish that it could start the United Kingdom’s withdrawal from the European
Union without reference to Parliament. “The Supreme Court also considered
whether the United Kingdom’s devolution arrangements impacted upon the
Government’s capacity to trigger Article 50 of the Treaty on the European Union”2.
It can be noted that a sound
constitutional principle is a principle that the government, parliament and the
judiciary all have in common, so far as that they all rely on it to make a correct
and sound judgement. I plan to challenge and discuss whether or not a sound
constitutional principle really exists, what the majority judgement was in the
case of R (Miller) v Secretary of State for Exiting the European
Union 2017 UKSC 5, 259 and whether
the majority judgment in the case is based on this principle. The main question
I will be leading up to and answering is whether or not the majority got the judgement
right in the Miller case, if so why
and why not.

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Firstly,
we must establish what is a constitutional principle is.  The answer will require detecting some of the
key principles of the constitution of the United Kingdom. According to the United
Kingdom’s Constitutional Law Association “the prime constitutional principle is
that Parliament is sovereign and that ‘an important aspect’ of this principle
is that ‘primary legislation (in this case the European
Communities Act) is not subject to displacement by the Crown through the exercise
of its prerogative powers’ (25)”3.
“The Court found out that the Crown has no power to alter the law of the land,
whether it be common law or contained in legislation (25)”4. 
“This statement can be affirmed through examples such as The Bill of Rights
1688 and statement of the Privy Council in the case of The
Zamora 1916
2 AC 77″5.
“These constitutional principles indicate that the prerogative cannot be used
to replace European Union rights which have been set in domestic law through section
2(1) ECA”6.
“However, it is also clear that there are overriding constitutional principles
which may give weight to the Government’s assertion of the existence of the
relevant prerogative power. Initially, the United Kingdom is a democracy and
that the decision to exit the European Union was a decision dictated by the
exercise of choice by the people”7.
“Secondly, it is unconventional under the constitution of the United Kingdom that as a general rule applicable in the
normal circumstances, the conduct of international relations and the making and
unmaking of treaties on behalf of the United Kingdom are regarded as matters
for the Crown in the exercise of its prerogative powers (30)”8.
I will look at the main reasons for the opinion of the majority and find the
differences between them, and those of Lord Reed’s opposite opinion, which
Lords Carnwath shared.

 

Referring to the question asked, R (Miller) v Secretary of State for Exiting the
European Union 2017 UKSC 5, 259, the Government
sought to establish that it could initiate the UK’s withdrawal from the European
Union without reference to Parliament. “The Supreme Court also considered
whether the United Kingdom’s devolution arrangements impacted upon the
Government’s capacity to trigger Article 50 of the Treaty on the European Union”9.
As I have already mentioned,
the outcome of the case was that the Government did not have the power to
initiate the withdrawal, with a split of eight to three. As stated in the dissenting
argument by Lord Carnwath, who was agreeing with Lord Reed, was that the notice
“did not change any laws or affect any rights, and was merely the start of an
essentially political process of negotiation and decision-making within the
framework of that article”10. Lord Carnwath was of the view that the Court had
overlooked the importance of executive accountability. He believed that it was
wrong to consider the argument of choosing between parliamentary sovereignty and
prerogative powers of the executive. I have already mentioned that the United Kingdom’s
constitution is a balance between the roles of parliament, the executive, and
the courts. Lord Carnwath is mindful of the sensitivity that exists between the
bodies and that the Court could conclude that the accountability of the
executive would be enough to avoid the need for Parliament’s involvement. I
understand the three key aspects of the decision were the relationship between the
European Union and United Kingdom Law, The European Communities Act 1972, and the scale of impact on
the membership of the European Union.

 

Regarding the relationship, the majority view was that United Kingdom
Law in the form of the European Communities Act was the source of European Union
Law. Without the Act, European Union Law would have no domestic status. The
majority view from this was that with European Union Law recognised as domestic
law, the executive is not fit for purpose to trigger Article 50. The dissenting
view, as presented by Lord Reed, was that European Union Law was derived from
Statute (Act), and the Statute derives authority from the rule of recognition
(H.L.A Hart’s Theory of Legal Positivism11),
in other words, what counts as law. Lord Reeds sees the European Communities Act of 1972, as giving
the power for the executive to trigger the article. Therefore, the prerogative
remains exercisable unless legislation precludes its use. The majority are of the view that the European Communities Act
does not allow for the abolition of European Union law by a prerogative act
effecting withdrawal. The view is that Parliament endorsed the membership of
the European Union, and so, to go against this approach with withdrawal would
be incompatible.

 

However, looking at the constitutional implications, the
majority consider the size of the issue. It was an unprecedented issue at the
time of its formation in nineteen seventy-two, and so, will be the withdrawal.
The majority were mindful that when European Union membership was created, it
was the first time in the history of the United Kingdom, that an international
source of law was grafted into, and above, United Kingdom’s domestic law,
Parliament and the Courts. The withdrawal will also be unprecedented. Therefore,
in order to trigger the Article 50, legislation should be created. The majority
view was that whilst the European Communities Act accommodated changes in European
Union Law, it did not accommodate complete withdrawal. The dissenting view was
that European Communities Act was capable of accommodating triggering Article
50. I would suggest that Lord Reed had a point. Legislation does not require
everything to spelt out, no matter what the scale of the issue. However, given
the size of the issue, there is also an argument that could be said for that
too. When looking at the matter from a legal perspective, I would agree with
Lord Reed. It can be said that the two main reasons for the differing views
relate to the differing perspectives on European Union Law and the political
and legal control of the executive. I have already mentioned that the majority
had the view that the European Communities Act (1972) gave the green light for
European Union Law to become an important part of United Kingdom Law. Lord Reed
dissenting was of the view that European Union Law is distinct from United Kingdom
Law. It did not create statutory rights in the same sense as other statutes.
All it did was give legal effect in the United Kingdom to a body known as European
Union Law. I am of the opinion that it is reasonable to suggest that European Union
Law has become more than a law which has been given legal effect in the United Kingdom, for example, in the Independent article on “15 EU laws and
regulations we will miss in post-Brexit Britain”12.

 

When considering the political and legal control of the
executive, the majority view was that if prerogative powers could trigger
Article 50, they could have triggered Brexit without the need for a Referendum.
They were dismissive of judicial review
as a safeguard against casual executive-initiated withdrawal. Lord Reed, on the
other hand, was of the view that the controls over carrying out ministerial
powers under the constitution were not of a legal character. I believe Lord
Reed has a point. It puts into question the courts’ capacity to control the
exercise of certain prerogative powers. It should not lead a court that is
satisfied that the relevant power exists to then doubt its existence. Finally, “The
Supreme Court also considers whether the UK’s devolution arrangements impacted
upon the Government’s capacity to trigger Article 5013”.
The question was whether the legislation now needed would fall within the Sewel
Convention. Whilst the Court did not say it was inapplicable, they did say that
even if it did fall within the Convention, it was not legally enforceable.
Given the Scottish ministry’s devolution ambitions, it could be argued that
this is a politically motivated approach.

 

To conclude, the point of
the Miller case was all about the
question: what is a sound constitutional principle? Historically, the United
Kingdom has not got a defined constitution, however, there are certain aspects
of it which correspond to the understanding of the constitution.

1 Jack Straw, Modernising the Magna Carta, (2008),                                                        

as well as The Independent –

http://www.independent.co.uk/news/uk/politics/the-big-question-why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html

2 The relationship between EU and UK law –
Analysis / The Supreme Court’s Judgment in <i>Miller</i>

3
 J. Adenitire, ‘Exiting the EU
Constitutionally’, U.K. Const. L. Blog (9th Nov 2016)

John Adenitire: Exiting the EU Constitutionally

4
 J. Adenitire, ‘Exiting the EU
Constitutionally’, U.K. Const. L. Blog (9th Nov 2016)

John Adenitire: Exiting the EU Constitutionally

5  J.
Adenitire, ‘Exiting the EU Constitutionally’, U.K. Const. L. Blog (9th Nov
2016)

https://ukconstitutionallaw.org/2016/11/09/john-adenitire-exiting-the-eu-constitutionally/           

6
 J. Adenitire, ‘Exiting the EU
Constitutionally’, U.K. Const. L. Blog (9th Nov 2016)

John Adenitire: Exiting the EU Constitutionally

7
 J. Adenitire, ‘Exiting the EU
Constitutionally’, U.K. Const. L. Blog (9th Nov 2016)

John Adenitire: Exiting the EU Constitutionally

8
 J. Adenitire, ‘Exiting the EU
Constitutionally’, U.K. Const. L. Blog (9th Nov 2016)

John Adenitire: Exiting the EU Constitutionally

9 The Supreme Court’s judgement in Miller https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/

10 Lord
Carnwath (dissenting) in R (Miller) v Secretary of State for Exiting the European
Union 2017 UKSC 5, 259.

11 Hart, H. L. A. (1994). The Concept of Law (2 ed.).
London: Oxford UP.; superseded by 3rd edition 2012, edited by
Leslie Green.

                                                                                                                         

12 The Independent, Andy McSmith, Saturday 25 June 2016, 17:45 BST
– http://www.independent.co.uk/news/uk/politics/brexit-15-eu-laws-we-will-miss-in-britain-a7103031.html

13 The Supreme Court’s judgement is Miller
– https://publiclawforeveryone.com/2017/01/25/analysis-the-supreme-courts-judgment-in-miller/

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