2016 Global Review of Constitutional Law

which not only established the distinctive
Northern Ireland (NI) power-sharing and
human rights arrangements, but also did so
on an irreplaceable assumption of continuing
UK membership of the EU. In the applicants’
view, immediate changes would occur in
these arrangements, including rights deriving
from EU law, by even the initial step of
a notification of withdrawal under Article 50
TEU. Since the prerogative cannot be used
to change domestic law, the applicants contended
that the UK Government needed prior
parliamentary sanction in the form of an
Act of Parliament to trigger Article 50.
The Court, however, was unable to find any
legal provisions applicable to Northern Ireland
that expressly or impliedly displaced
the prerogative in respect of the UK’s relationship
with the EU, even though the fact of
EU membership was assumed at the time the
1998 Act and other Agreements were put in
place. Moreover, the Court did not agree that
the mere act of triggering Article 50 would
affect any existing rights; although this may
well happen in the future, albeit through legislation
giving effect to the terms of the UK’s
eventual withdrawal. 24
If an Act of the UK Parliament was needed
for triggering Article 50, the applicants
argued, secondly, that by convention there
needed to be a ‘Legislative Consent Motion’
passed by the NI Assembly before the
UK Parliament could act. Given the High
Court’s finding on the first issue that the UK
Government has authority under the prerogative
to act, this was perhaps superfluous.
But it nevertheless considered the question
whether triggering Article 50 would affect
a devolved matter, and concluded it did
not; that is, within the scheme of devolved
(‘transferred’) or reserved (‘excepted’) mat-
ters under the 1998 Act, triggering Article 50
concerned relations with the EU institutions,
which is an excepted or UK competence. 25
The third argument averred that even if the
prerogative was available to the UK Government,
a number of public law restraints would
apply to its exercise to ensure that the Government
took all relevant considerations into
account – including the unique constitutional
arrangements of the NI within the UK and
the need to uphold EU law so long as the UK
remained a member-state – and that it would
not give excessive consideration only to the
referendum result. The Court questioned the
justiciability of many of the contentions on
this ground, concluding that triggering Article
50 would be a decision of high policy taken
at the highest levels of the state, pursuant to
a state-wide referendum, that would be inappropriate
for judicial review. 26
The last two of the applicants’ arguments
also found no favour with the Court. Briefly,
these were that the decision to trigger Article
50 would be in violation of the 1998 Act’s
provisions requiring the Secretary of State
for Northern Ireland to assess the measure’s
impact on equal opportunities in NI; and that
the Good Friday Agreement gives rise to a
substantive legitimate expectation that the
constitutional status of NI would not be altered
without a referendum. The Court found
that triggering Article 50 was not a matter
for the NI Secretary but for the Prime Minister
and other members of the UK Cabinet. 27
Similarly, it held that any referendum provision
in the Good Friday Agreement was
about NI remaining within the UK, rather
than the UK’s relationship with the EU. 28
These matters were all appealed to the Supreme
Court (see below). 29
The High Court judgment in the Miller case
Parallel to the litigation in Northern Ireland,
the applicants in R (Miller) v Secretary of
State for Exiting the European Union argued
that the UK Government’s plan to trigger
the process of leaving the EU under Article
50 TEU through exercise of the royal prerogative
power is unacceptable under UK
constitutional law. They contended that the
initiation of the process required statutory
authorisation from Parliament on the basis
that the prerogative has been displaced by
the European Communities Act 1972, which
was enacted to facilitate the UK’s entry
into the European Economic Community in
1973.
At first instance, the High Court issued a
judgment of 3 November 2016 30 holding that
the triggering of Article 50 TEU does require
the statutory authorisation of Parliament.
The judgment was met with fury by the anti-EU
press, including the Daily Mail’s now
infamous front page decrying the High Court
judges as ‘enemies of the people’. 31 The headline
was widely criticised as failing to respect
the independence of the judiciary and was the
subject of over 1,000 complaints to the Independent
Press Standards Organisation. 32
The UK Government appealed the decision
to the UK Supreme Court, which heard the
case on 5-8 December 2016, joining it to the
appeal against the High Court of Northern
Ireland in the McCord case.
The Supreme Court judgment
On 24 January 2017, the Supreme Court
handed down its decision in the joined appeals
against the judgments in Miller and
McCord. 33 In a joint majority decision of 8
judges (with 3 judges issuing separate dis-
24
Ibid: [65] – [108].
25
Ibid: [109] – [122]
26
Ibid: [123] – [136]
27
Ibid: [137] – [146]
28
Ibid: [147] – [157]
29
See also C Harvey, ‘Northern Ireland’s Transition and the Constitution of the UK’, U.K. Const. L. Blog (12 December 2016): http://bit.ly/2nKZ9YZ.
30
[2016] EWHC 2768 (Admin).
31
‘Enemies of the people: Fury over “out of touch” judges who have “declared war on democracy” by defying 17.4m Brexit voters and who could trigger
constitutional crisis’ Daily Mail 4 November 2016 http://dailym.ai/2et5SQE.
32
‘Daily Mail’s “Enemies of the People” front page receives more than 1,000 complaints to IPSO’ Independent 10 November 2016 http://ind.pn/2fAxn9S.
33
[2017] UKSC 5.
224 | I•CONnect-Clough Center