Yesterday a government minister (Lord Callanan) had to apologise to the House of Lords for misrepresenting what the “Miller” case said about Article 50.
This seems to be a good time to clarify some things, in particular what the “Miller” judgement in the Supreme Court did (or rather did not) say.
- The Supreme Court decision on “Miller” did not adjudicate on whether Article 50 is revocable. It accepted the Government’s contention that once the Government triggered the Article 50 notification it would not be revoked.
- The Supreme Court decision did not pass judgement on whether it was necessary for Parliament to make a decision on the UK leaving the EU before authorising the Government to notify the UK’s intention to leave the EU.
The question asked and adjudicated on by the Supreme Court was “Is the Government entitled to use Royal Prerogative to trigger an Article 50 notification?”
The answer to that question was an emphatic “No”, the Government was required to seek Parliament’s authority to trigger the Article 50 notification.
The Supreme Court ruling did say:
- Fundamental rights granted by Parliament can only be removed by Parliament;
- Therefore the Government’s intention to use Royal Prerogative, with no intention to withdraw said notification, was contrary to the constitutional requirements for the UK to trigger Art. 50;
- Consequently Parliament had to pass primary legislation (an Act of Parliament) in order for the UK to notify its intention to leave the EU.
The Supreme Court said about the form of the legislation:
“What form such legislation should take is entirely a matter for Parliament but, in the light of a point made in oral argument, it is right to add that the fact that Parliament may decide to content itself with a very brief statute is nothing to the point”
And went on to say:
“A notice under article 50(2) could no doubt be very short indeed, but that would not undermine its momentous significance. The essential point is that, if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.”
There are a number of things that flow from the “Miller” judgement, not the least of which is the “The Three Knights Opinion”, commissioned by The People’s Challenge, which gives a credible and authoritative argument that Parliament is Sovereign and it is for Parliament to decide whether to accept the Exit terms, to reject them and leave the EU anyway, or to reject them and remain in the EU.
So far, despite specific questions, the Government has avoided contesting the “The Three Knights Opinion”.
Indeed the Government has been extraordinarily careful (particularly for a careless and accident-prone government) to stress that not revoking the Article 50 notification is a matter of Government policy and not legal certainty. This in itself may well be an indicator of the legal advice the Government has been given.
There is more than enough substance in the “Miller vs R” judgement and the “The Three Knights Opinion” to dispute the outcome that the Government is trying to impose on Parliament and the UK public.
The Supreme Court judgement required that the notification of intention was authorised by an Act of Parliament. A consequence of that judgement is that the eventual acceptance or rejection of the exit terms also requires an Act of Parliament.
It is for Parliament to make the final and definitive decision, once the exit terms are known.
So please ask your MP:
- How will the fundamental rights of UK citizens be protected?
- What happens if the exit terms (or no terms) leave the UK worse off than it is as a member of the EU?
- The People’s Challenge Three Knights Opinion.
The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for The People’s Challenge Group in Miller vs R, Helen Mountfield QC and Gerry Facenna QC.
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.