Rory O’Connell. Rory is Editor of RightsNI, Professor of Human Rights and Constitutional Law at Ulster University School of Law and Director of the Transitional Justice Institute (TJI). He is a member of the Board of the Committee on the Administration of Justice (CAJ), one of the applicants in the Brexit case Agnew and others. This post is written in a personal capacity and does not reflect the views of any organisation. Comments, corrections, advice welcome via comments below, email to firstname.lastname@example.org or @rjjoconnell.
The Miller judgment on the use of prerogative powers has immediately become one of those classic landmark judgments where judges intervene in a major social and political debate. Like the US case on desegregation (Brown v Board of Education), the Indian Essential Features case, the House of Lords judgment in Pinochet, it will be the focus of both forensic scrutiny and political debate.
In some ways Miller offers lessons in Constitutional Law 101 for the government, whose legal position comes in for criticism. What follows are some initial thoughts on the judgment and its implications.
Strikingly the judgment is a unanimous one of three judges on the Divisional Court. There are no concurrences, no dissents. Indeed, this is not even a sole authored judgement where other judges have simply concurred. From the judgment it appears to be a single judgment of all three judges. This is unusual in high profile cases where judges frequently wish to make their individual opinions known.
It is reminiscent of the approach sometimes adopted in the US Supreme Court (SCOTUS) where in extremely high profile and potentially controversial cases SCOTUS judges strove for unanimity of all nine judges – think of the Brown case on desegregation or the Nixon judgment on executive power or the joint opinion in Cooper v Aaron rejecting an attack on the authority of the Supreme Court. It is notable that these cases tended to involve situations of a fundamental challenge to the rule of law.
The unanimous judgment in Miller is significant symbolically and practically. It sends out a strong signal that this is a clear legal decision, and that no one member of the Court can be the subject of criticism (or indeed praise). It also means there is no scope in dissents or concurrences to find any leeway or wriggle room in the judgment.
If the Supreme Court is minded to uphold the Divisional Court judgment, it might well consider the merits of a short unanimous opinion affirming the reasoning of the Divisional Court.
The strength of this is enhanced by the stature of the judges involved: the Lord Chief Justice and the Master of the Rolls are the two most senior judges in the courts of England and Wales. If any Divisional Court judgment is difficult to overrule, this is one such judgment. (The composition of the Court also attracted attention in one of the most appalling headlines ever to appear in the Daily Mail.)
It is not just the composition or unanimity that makes this a difficult judgment to overrule. In many ways, it is strong, clear and legally convincing.
One of the judgment’s strengths is that legally it is very conventional even conservative. The judgment at its heart is a vindication of parliamentary sovereignty and the rule of law. According to no less a traditional figure of the UK’s constitution than the 19th century Albert Dicey, these are the two principles of the constitution.
The judgment relies on basic principles common to any Constitutional Law 101 module. Academics and litigators could develop numerous imaginative arguments on these issues but the reasoning of the Court is conventional. In paragraph 33 for instance the Court sets out the traditional position on the role of unincorporated international treaties. This does not go down the imaginative routes advocated by some such as Lord Steyn or Lord Kerr of giving a special role to unincorporated human rights treaties.
The judgment relies on conventional legal arguments about statutory interpretation and the position of the royal prerogative. The royal prerogative refers to (in this case) autonomous executive powers of government. The discussion on the royal prerogative – the residue of royal power at any time left in the hands of the government – invokes classic constitutional law precedents from Case of Proclamations (1610) to the Fire Brigades Union case (1995). The prerogative is used for multifarious purposes, including the conduct of foreign affairs. It is commonplace that the prerogative must yield to an Act of Parliament in a system based on parliamentary sovereignty and Hickman, Barber and King pointed out the implications for Article 50 in this blog. It then becomes a question of statutory interpretation as to whether the European Communities Act 1972 displaces the prerogative.
In discussing statutory interpretation the Court offers useful advice on how to approach reading statutes. Sometimes people may refer to a series of specific rules for statutory interpretation (the literal rule, golden rule etc). But the Court highlights a more basic point: acts of parliament must be interpreted against a set of background assumptions about the constitutional principles in the UK (paragraphs 82-85). This is important for anyone interested in statutory interpretation. The Court tells us that the Government’s arguments did not address this properly: their argument is ‘flawed at this basic level’ (paragraph 85).
This is also important because this approach to interpretation is sometimes known as the presumption of legality or the constitutional rights doctrine. An Act of Parliament will be assumed not to take away constitutional rights unless its language does so expressly or by necessary implication. The notion of constitutional rights received judicial attention in the 1990s (see the Witham case) prior to the adoption of the Human Rights Act 1998. This endorsement of this approach has wider constitutional significance – it suggests that even in the absence of a Human Rights Act the courts will be ready to offer some protection to some rights. (I am not suggesting this is preferable to the Human Rights Act – for several reasons the Human Rights Act is a much better way to protect rights than the 1990s doctrine.)
The Divisional Court is especially impressive in identifying with clarity the rights that would be affected by the triggering of Article 50 (paragraphs 57 – 66). Much of the human rights discourse about Brexit has focused on rights like workers’ rights, anti-discrimination rights, data protections rights – see the excellent papers at the CAJ & TJI conference on Brexiting and Rights. These are rights that, in theory, a UK Parliament (or NI Assembly) could re-enact post-departure. The Court though points out that this is one category of rights affected but there is a second and a third category. The second category includes the rights UK nationals enjoy when travelling in other countries of the EU. The third category includes rights unique to being a member of the EU eg the right to vote for the European Parliament, to run for the European Parliament etc. The Secretary of State accepted that the last category would be lost for ever but disputed this in relation to the first two. On the second category the Court judgment is sharp:
‘In a highly formalistic sense, this [the Secretary of State’s argument] may be accurate. But in our view, it is a submission which is divorced from reality.’ (paragraph 66).
The Court examines the language of the European Communities Act 1972 very closely in its paragraph 99 and concludes that the Act, properly interpreted, intends to create extensive EU rights in UK law and it would be inconsistent with that intention for the Executive to end those rights unilaterally through the royal prerogative.
The judgment is silent as to what must precisely must happen for Article 50 to be triggered. The House of Lords Constitution Committee has recently canvassed the options including a vote in the Commons, a joint resolution or an Act of Parliament. The legally most secure route would be an Act of Parliament expressly amending the European Communities Act or otherwise expressly authorising the triggering of Article 50.
Some commentators have expressed puzzlement that the Miller judgment has reached a different outcome from that in the McCord and Agnew applications. Part of the answer is that the Northern Ireland High Court deliberately decided not to answer the central issues that were being discussed in London. Instead the McCord judgment focuses on the specifically Northern Ireland issues about the Northern Ireland Act, devolution implications (legislative consent motions), section 75 (equality of opportunity). It does not address the core question of UK constitutional law. Having said that, in Miller the Divisional Court points out that some of the arguments in the earlier McCord judgment may have been based on the wrong ‘starting point’ and may not have fully considered the effect of Article 50 (paragraph 104).
The effect of the Divisional Court’s judgment – assuming it is upheld on appeal – may set the stage for the next chapter in the constitutional turmoil enveloping the political constitution unleashed by the vote of 23 june 2016. In the event of a clash between parliamentary democracy and the direct democracy of a referendum we may have a constitutional crisis of the sort not seen since the 1909-1911 crisis sparked off by the Lords’ rejection of the People’s Budget (discussed in Jenkins’ book Balfour’s Poodle).
In that crisis, Irish parliamentarians ultimately played a decisive role. It is not certain how this will be resolved in Parliament, but given the stakes involved for everyone living in this jurisdiction and in these islands, there would be a strong case for all of Northern Ireland’s elected parliamentarians to participate in any parliamentary vote.