R (on the Application of Miller) v Secretary of State for Exiting the European Union ('Miller No1')
[2017] UKSC 5; [2017] 1 All ER 593
Supreme Court
Facts:
The SoS attempting to withdraw from the EU (triggering Article 50) through prerogative power.
Legal Facts / Procedural History:
Divisional Court (High Court)
Supreme Court
Legal Issues:
Whether a minister could use the prerogative power of entering into and withdrawing from international treaties to withdraw from the EU without primary legislation.
Appellant (Secretary of State for Exiting the EU) Arguments:
The minister has prerogative power which allows them to act without prior legislation.
Explicit authorisation is given in the European Communities Act 1972.
The Sewel Convention does not make it a legal requirement for the UK government to seek the consent of the devolved legislatures.
Respondent (R) Arguments:
Withdrawing from the EU is not merely withdrawing from a treaty but changing domestic law. Ministers cannot use prerogative powers to change domestic law according to our constitutional framework under the Case of Proclamations. Statute must give this power to a minister for it to have effect.
Exiting the EU will be an irrevocable change, forcing Parliament to pass legislation relating to the exit.
Laws that confer or deprive individual rights can only be altered by Parliament.
Judgement (Neuberger PSC, Hale DPSC, Mance JSC, Kerr JSC, Clarke JSC, Wilson JSC, Sumption JSC, Reed JSC, Carnwath JSC, Hughes JSC and Hodge JSC):
Ministers could not use the prerogative power of entering into and withdrawing from treaties to withdraw from the EU. This power assumes that domestic and international law exist in separate spheres that do not interact with one another.
Ministers cannot use executive power to make constitutionally fundamental change. Exiting the EU is as much a constitutional change as entering it, so legislation is required. Primary legislation is required to withdraw as there would be a constitutionally significant effect on UK domestic law by withdrawing, especially on matters about rights.
UK ministers are not legally required to consult members of the devolved legislatures. It is merely convention that the UK Parliament would not legislate on devolved matters without the consent of the devolved parliament (Sewel Convention).
Parliament did not expressly grant ministers the power in the 1972 Act. The court has to interpret the law as it is.
Prerogative powers cannot be exercised as to change the current law, unless expressly allowed under primary legislation.
Reed JSC, Carnwath JSC and Hughes JSC dissenting.
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