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The Brexit Case and Constitutional Conventions

Document Cited authorities 7 Cited in Related
Vincent
Author
Published date01 September 2017
Date01 September 2017
DOI10.3366/elr.2017.0442
Pages442-447
INTRODUCTION

In the Brexit case of R (Miller) v Secretary of State for Exiting the European Union,1 the main argument concerned whether the UK Government could give notice of its intention to withdraw from the European Union (“EU”) in accordance with article 50 of the Treaty on European Union (“TEU”)2 under the prerogative or whether this required statutory approval.3 The Supreme Court's ruling on that point – that legislation was required – has been overtaken by the enactment of the European Union (Notification of Withdrawal) Act 2017. The case is likely, however, to have long-term significance in other ways. Here I focus on its implications for the way in which the courts take account of constitutional conventions.

 THE COURT'S RULING

The issue of conventions arose because the devolved governments, all of whom participated in the proceedings in the Supreme Court, raised questions relating to their respective devolution settlements, including the Sewel convention, and its implications for the process of leaving the EU. The Sewel convention provides that the UK Parliament will not normally legislate on devolved matters without the consent of the devolved legislatures. It was argued that withdrawal from the EU would change the competence of the devolved institutions as all are subject to the constraint that they cannot legislate or act in contravention of EU law and so the Sewel convention was engaged. The practical significance was that, if the consent of the devolved institutions was needed, that would give them more influence in the Brexit process. The Court ruled that (i) although the removal of the EU constraints on competence implied by Brexit would alter the competence of the devolved institutions unless new legislative constraints were imposed, the UK's relations with the EU was a reserved matter and the devolved legislatures had no competence in relation to withdrawal from the EU. The Court further ruled that (ii) there was no legal requirement to obtain the consent of the devolved legislatures before notification was given of leaving the EU, but declined to make a ruling on what the Sewel convention might require. The way in which the court dealt with these issues has implications both for the way in which the courts take account of constitutional conventions in general and the Sewel convention in particular.

The court's reluctance to be drawn into commenting on what the requirements of the Sewel convention might be was based on reasons which apply to conventions generally. The key passages from the judgment are as follows:

Judges therefore are neither the parents nor the guardians of political conventions; they are merely observers. As such, they can recognise the operation of a political convention in the context of deciding a legal question (as in the Crossman diaries case – Attorney General v Jonathan Cape Ltd [1976] QB 752), but they cannot give legal rulings on its operation or scope, because those matters are determined within the political world. As Professor Colin Munro has stated, “the validity of conventions cannot be the subject of proceedings in a court of law” – (1975) 91 LQR 218, 228… In reaching this conclusion we do not underestimate the importance of constitutional conventions, some of which play a fundamental role in the operation of our constitution. The Sewel Convention has an important role in facilitating harmonious relationships between the UK Parliament and the devolved legislatures. But the policing of its scope and the manner of its operation does not lie within the constitutional remit of the judiciary, which is to protect the rule of law.4

If taken literally, these comments suggest that the courts should not settle disputed questions as to what a convention means or requires; at most they can note that a convention exists in the context of deciding a legal...

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