Here are some very brief thoughts on the Divisional Court’s remarkable decision in the Brexit litigation this morning. In R (Miller) v Secretary of State for Exiting the European Union  EWHC 2768, an extremely strong bench (Lord Thomas LCJ, Lord Etherton MR and Sales LJ) held unanimously that the Article 50 notification which will trigger Britain’s departure from the European Union cannot be given by the executive acting alone under the prerogative but must instead be authorised by Parliament.
First, substance trumps form. In the Northern Ireland High Court judgment last week, Maguire J commented as follows on the triggering of Article 50 “On the day after the notice has been given, the law will in fact be the same as it was the day before it was given” (at para. 105). The rejection of the claimant’s arguments followed almost as a matter of course. By contrast, in today’s decision, the Court was very clear that the inevitable effect of triggering Article 50 would be to change the law of the land. Rights previously enjoyed would no longer be enjoyed (see especially paras. 63-66).
The Court made a particularly interesting point about one category of rights that would be removed: the freedom of movement rights of British citizens living elsewhere in the European Union. In a formal sense, these rights were not created by Parliament. They are obligations recognised in the domestic law of other member states pursuant to their own internal constitutional arrangements. (And, one might add, that at least in theory Parliament could legislate for freedom of movement rights for Britons abroad, though obviously no foreign authority would consider itself bound by such a law.)
In response, the Court recognised that this may be accurate “in a highly formalistic sense”, but was “divorced from reality” because Parliament “knew and intended” that the European Communities Act 1972 would provide the “foundation” for these “rights of major importance created by Parliament” (at para. 66). Accordingly, it would be “surprising” that the executive, by use of the prerogative, could remove such rights (at para. 66). It would not be enough, on this analysis, for the 1972 Act to remain — an empty shell — on the statute book. What matters is the substance that would have been removed, not the form that would remain.
Second, the “constitutional status” of the 1972 Act featured prominently. In classical theory, all of Parliament’s statutes are created equal. But the courts have suggested that some legislation, such as the 1972 Act, are “constitutional”. Indeed, the great normative force given to the 1972 Act in Factortame underpins this suggestion: see generally the Metric Martyrs case. And it may be thought to follow that such statutes have to be interpreted differently from ‘ordinary’ statutes: on this view, different principles might apply to the 1972 Act than, for instance, to legislation implementing taxation treaties.
For the Court, the government’s argument that the claimants had to identify an abrogation of the prerogative in the 1972 Act (the operation of which is contingent on the government entering into agreements on the international plane: see paras. 77, 93(3)) “left out part of the relevant constitutional background” (at para. 84). Ratther, statutory interpretation — especially of a constitutional statute — “must proceed having regard to background constitutional principles which inform the inferences to be drawn as to what Parliament intended by legislating the way it did”; the statute has to be read “in the light of constitutional principle” (at para. 82). In particular, “the major constitutional importance” of the 1972 Act belied the argument that “Parliament nonetheless intended that its legal effects could be removed by the Crown through the use of its prerogative powers” (at para. 88). That the executive has a broad foreign affairs prerogative is so only because this prerogative cannot be used to modify domestic law (see paras. 89, 91).
The “clear and necessary implication” of the provisions of the 1972 Act, read in their constitutional context, was to exclude the possibility that the legislation could be turned into an empty shell by the executive acting alone.
Third, it could be said that this represents a victory for the legal over the political constitution. As I wrote in July:
One might reasonably say that the prerogative can only be qualified by clear statutory language. But what is “clear” requires interpretation. This is where the legal and political constitutions might well come into conflict. On the one hand, exercising the prerogative in this matter would override fundamental rights (including those in the EU Charter) by executive fiat, fundamental rights moreover that Parliament has expressly incorporated into domestic law. On the other hand, the executive is responsible to Parliament, the prerogative must accordingly be given a wide scope and because s. 2(1) does not set out to limit the prerogative to enter into and withdraw from international agreements, it would disrupt orthodox constitutional arrangements to require legislation to authorize withdrawal from the EU. Whether judges will come down on one side or the other of this argument may well depend at least in part on their view of the UK Constitution, primarily characterized by legal constraints and due process from one perspective, but by public accountability and the political process from another.
Fourth, it is nonetheless striking that, as Aileen McHarg has already observed, there is a mix of the old and the new constitutions (or alternatively, the political and the legal). On the one hand, the ‘new’ constitution, with its distinction between constitutional and ordinary statutes is central to the decision. On the other hand, at paras. 105-108, the Court was clear that the legislation providing for a referendum was advisory only and did not fetter Parliament or enable the executive in any way. The referendum was purely and simply “a political event” (at para. 108) with no legal implications.
This fascinating decision will no doubt be commented upon at great length (not least in the legislation seminar that I co-teach!), as will the appeal to the Supreme Court, to be heard in early December.