R (Miller) v Secretary of State for Exiting the European Union: Three Competing Syllogisms

AuthorNicholas Aroney
Published date01 July 2017
Date01 July 2017
DOIhttp://doi.org/10.1111/1468-2230.12282
was made clear by Shindler,80 that could have been dealt with without an Ar-
ticle 267 reference, in what after all is only the first step of a long journey
towards Brexit, in which Parliament will continue to play an essential role, as
it has done thus far. So although the restatement of parliamentary sovereignty
is eye-catching, it is not clear what or whose purpose has been served by the
Miller litigation.
R (Miller) vSecretary of State for Exiting the European
Union: Three Competing Syllogisms
Nicholas Aroney
The Miller case concerned the constitutional requirements for the UK to give notice of its
intention to withdraw from the EU pursuant to Article 50 of the Treaty on European Union.
The parties made submissions in terms of two competing syllogisms. The Government argued
that ministers, exercising Crown prerogative, had the power to give notice without statutory
authorisation. The Applicants argued that the process required authorisation by Act of Par-
liament because the UK’s withdrawal would deprive people of rights arising under EU law.
However, a majority of the Supreme Court decided in favour of the Applicants based on a third
and significantly different syllogism, based on the proposition that the European Communities
Act had established EU law-making and law-interpreting institutions as new ‘sources of law’.
This note assesses the three competing syllogisms and examines the constitutional significance of
the majority’s proposition that these new EU sources of law were integrated into UK domestic
law without disrupting the principle of parliamentary sovereignty.
INTRODUCTION
The referendum on Britain’s withdrawal from the European Union was, from
an international point of view, one of the most important political events of
accordance with its own constitutional requirements’, which returns one to the issue in the
current proceedings’ (Miller n 6 above at [104]). But in fact it does not return to the issue of
the Miller proceedings, but rather opens up a new line of inquiry. If Article 50 was a statutory
power,the prerogative would be irrelevantand displaced (De Keyser n 29 above), and the question
would be simply one of determining whether constitutional requirements had been met. Given
the nature of the British constitution it is difficult to see how these ‘requirements’ had not been
met on grounds explained in the text.
80 Shindler n 25 above, especially per Elias LJ.
Visiting Professor, Universit´
ePanth
´
eon-Assas; Visiting Fellow, Programme for Foundations of Law
and Constitutional Government, University of Oxford; Professor of Constitutional Law, Univer sity
of Queensland. This case note develops themes outlined in a public lecture sponsored by the Institut
Michel Villey at the Faculty of Law, Universit´
ePanth
´
eon-Assas (Paris II) on 27 January 2017 and
a seminar sponsored by the Programme for Foundations of Law and Constitutional Government at
Trinity College, University of Oxford on 7 February 2017. My thanks are due to participants at
those venues for commentary and feedback, especially Denis Baranger, Nick Barber, Olivier Beaud,
Richard Ekins, Ian Leigh, Julian Rivers, Ewan Smith and Alison Young, as well as Horst Lucke,
and the anonymous reviewer. The support of Australian Research Council grant FT100100469 is
gratefully acknowledged.
726 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 685–745
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Nicholas Aroney
2016. Britain’s anticipated departure from the EU will not only have immedi-
ate and momentous implications for the people of Britain and the nations of
Europe, it will have significant ramifications for people throughout the world.
What is more, the wider consequences are not only political and economic;
they are profoundly constitutional. For the legal questions raised in R (Miller)
vSecretary of State for Exiting the European Union (Miller), concerning the re-
quirements imposed by the British constitution on the process by which the
UK can withdraw from the EU, have a special resonance in countries within
the British Commonwealth of Nations, whose theories of executive power and
parliamentary authority are rooted in the historic prerogatives of the British
Crown and the sovereign powers exercised by the Parliament at Westminster.1
It is therefore very important that we are clear about what the Supreme Court
meant when it decided in Miller that British ministers could not give notice of
the UK’s intention to withdraw from the EU without first being author ised to
do so by an Act of Parliament.2Theissuesinthecaseposeafascinatingpuzzle
about the nature of the legal relationship between governments and legislatures
in Westminster-derived systems of government throughout the world.
At the heart of the case, initially, were two competing syllogisms, one which
suggested that government ministers, exercising the prerogatives of the Crown,
already had the power to initiate the process of Britain’s withdrawal from the
European Union, and a second which suggested that the process could not be
initiated without specific authorisation by an Act of Parliament. The parties in
the case made their submissions in terms of these two competing syllogisms,
the Government arguing that the international prerogatives of the Crown were
sufficient, the Applicants arguing that statutory authorisation was required.
However, in a move unexpected by the parties and commentators alike, a ma-
jority of the Supreme Court devised a third and significantly different syllogism,
on the basis of which they resolved the case in favour of the Applicants. In this
note these three competing syllogisms are explained and examined.
The note begins by describing the first two syllogisms and showing how
they operated in the decisions of the two lower courts that considered the
question. The note then explains how the Supreme Court came to formulate
its alternative third syllogism. It does this by reviewing the legislation that was
crucial to establishing the minor premises of the first two syllogisms and then
by showing how difficulties in establishing those minor premises gave rise to
the need for an alternative line of argument if the Court was to find, as it
did, in favour of the Applicants. Through this third syllogism, it is argued, the
majority of the Court circumvented the UK’s traditional dualist approach to the
relationship between domestic law and international treaty law by arguing that
the UK’s membership of the EU constituted the EU treaties and law-making
institutions as new sources of domestic law, established as integral parts of the
UK’s internal legal order. The note shows how the majority’s development of
1 See, for example,P. Sales and J.Clement, ‘Inter nationalLaw in Domestic Courts: The Developing
Framework’ (2008) 124 Law Quarterly Review 388.
2R (Miller) vSecretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017)
(Lord Neuberger, Lady Hale,Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, LordSumption
and Lord Hodge; Lord Reed, Lord Carnwath and Lord Hughes dissenting).
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 685–745 727

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