Brexit and Parliamentary Sovereignty
| Published date | 01 July 2017 |
| Date | 01 July 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12281 |
Brexit and Parliamentary Sovereignty
Keith E wing ∗
This note addresses the implications of R (Miller) vSecretary of State for Exiting the European Union
for the legal principle of parliamentary sovereignty, and argues that the strong restatement of
the latter is the most significant feature of the decision. The aim here is to show howtraditional
principle in the Dicey tradition has been strongly applied against the competing claims of EU
law, the royal prerogative, the referendum and devolution. However, the note also argues that
the claims relating to parliamentary sovereignty could have produced a different result and that
the most compelling feature of the case was the argument that was not forcefully put by the
Government, namely that Parliamenthad already provided sufficient authority for the trigger ing
of Article 50.
INTRODUCTION
On 23 June 2016 the people of the United Kingdom and Gibraltar voted to
leave the European Union. The Brexiters won by a slim majority (51.89 per
cent to 48.11 per cent) on a 72 per cent turnout, and they lost comprehensively
in Scotland and Northern Ireland. The Brexiters nevertheless claimed that the
Government had a mandate to trigger Article 50 of the Treaty on European
Union (TEU) and to do so legally with prerogative power (and without parlia-
mentary approval), a claim perhaps reinforced politically by the Conservative
Party election manifesto in 2015.1The latter had set in train the referendum
process accompanied by a promise that the Conservatives if elected would re-
spect the result, evidently not expecting the outcome delivered. The problem,
however, is that the European Union Referendum Act 2015 was silent on the
legal effects of the vote, perhaps reflecting the confidence of all concerned that
the Brexiters would fail.
The defeated Remainers took a different view, with leading commentators
insisting that the country’s ‘most fundamental constitutional requirement is that
there must first be the approval of its Parliament’ for the change.2Some people
in both Northern Ireland and Scotland argued further that not only must the
Westminster Parliament approve, so too should the devolved legislatures, given
that Brexit would inevitably touch on devolved matters and that the people
of these two jurisdictions had voted to remain. These issues were tested in
separate legal proceedings, the first in Northern Ireland and the second in
∗Professor of Public Law King’s College London. Thanks to Alan Bogg, Fergal Davis and James
Grant.
1 Conservative Party, Strong Leadership, A Clear Economic Plan, A Brighter, More Secure Future (2015)
72: ‘We will hold that in-out referendum before 2017 and respect the outcome’.
2 G. Robertson QC, ‘How to Stop Brexit: Get Your MP to Vote it Down’ The Guardian 27 June
2016.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 685–745 711
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Brexit and Parliamentary Sovereignty
England and Wales. According to the High Court in Northern Ireland, there
was no need for legislation to trigger Article 50, which could be done using
prerogative powers, and there was no need for a legislative consent motion
by the Northern Ireland Assembly.3Several days later the Divisional Court
in England and Wales took a radically different position on the first of these
points, and had no cause to consider the second.4
The Divisional Court’s decision was clearly unexpected and caught the
Brexiters by surprise, leading famously to the vituperative personal attacks on
the judges involved by the pro-Brexit media.5The requirement that there
should be parliamentary approval to trigger Article 50 was nevertheless upheld
by the Supreme Court by a majority of 8-3 on the only occasion so far that all
members of the Court have sat to hear a particular case.6The Court also held,
however, that there wasno obligation on the par t of the Westminster Parliament
to proceed only with the consent of the devolved legislatures. There could be no
Scottish or Northern Irish veto. By now the Supreme Court decision was not
unexpected, and the reaction to it was much more muted than the reaction to
the Divisional Court’s decision, with the Supreme Court spared the abuse that
had been heaped upon the latter. The majority decision nevertheless touches
many aspects of constitutional law, and much will no doubt be written about
the various aspects of the Miller case, and the relative merits of the majority and
minority decisions.7
Looking forward, however, the most eye-catching feature of the decision is
its de fence o f parli ament ary sovereignt y. When all is strip ped away, the core o f
both of the major questions the court was asked to address is the role of the
Westminster Parliament in the modern British constitution, the reasoning if
not the result paradoxically responding in terms that reflect the sentiment of
the referendum result, at least in those parts of the country where a majority
of those voting did so to leave the EU. In thus delivering a clear statement of
constitutional orthodoxy and a clear re-assertion of parliamentary sovereignty
as the fundamental principle of the constitution, Miller has swept aside recent
uncertainties, equivocations and qualifications, so that the Government was
able confidently to claim only a week after the decision was reached that
The sovereignty of Parliament is a fundamental principle of the UK constitution.
Whilst Parliament has remained sovereign throughout our membership of the EU,
it has not always felt like that.8
3Re McCord [2016] NIQB 85.
4R (Miller) vSecretary of State for Exiting the European Union [2016] EWHC 2768 (Admin).
5Daily Mail 3 November 2016, referring to the three Divisional Court judges as ‘enemies of the
people’ for defying 17.4 million Brexit voters and engendering a constitutional crisis, which of
course never happened.
6R (Miller) vSecretary of State for Exiting the European Union [2017] UKSC 5 (Miller).
7 See the excellent piece by J. Grant, ‘Prerogative, Parliament, and Creative Constitutional Adju-
dication: Reflections on Miller’ (2017) 28 King’s Law Journal (forthcoming).
8 Department for Exiting the EU, The United Kingdom’s Exit from and New Partnership with the
European Union Cm 9417 (2017) at [2.1]. This led to headlines such as ‘The Brexit White Paper
completely contradicts a key argument for Brexit’: The Independent 2 February 2017.
712 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 685–745
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