2016 Global Review of Constitutional Law

sents), the Supreme Court upheld both judgments.
34
Regarding the matters raised in Miller, the
Supreme Court upheld the judgment of the
High Court requiring that Parliament must
pass an act authorising the Government to
notify the UK’s intention to withdraw from
the EU under Article 50 TEU. The judgment,
like the first instance judgment, was framed
as an analysis of the constitutional relationship
between the Parliament and the Executive,
focused on detailed analysis of the nature
of the royal prerogative power exercised
by Government ministers.
The main question centred on two foundational
rules: (i) the Executive cannot,
through exercise of the royal prerogative,
change domestic law; 35 and (ii) the making
and unmaking of international treaties is a
foreign relations matter that falls within the
competence of the Executive. The Court
considered that use of the prerogative power
to vary the content of EU law (arising from
new EU legislation) could not be equated
to the ‘fundamental change in the constitutional
arrangements of the UK’ 36 occasioned
by exit from the EU, that the absence of any
express conferral of power to the executive
to withdraw from the European Community
(now Union) under the 1972 Act meant that
such a power did not exist, and that individual
rights enjoyed as a result of EU membership
would be affected as soon as Article 50
was triggered. 37
Regarding the devolution-specific arguments
raised in McCord, the Court dismissed the
appeal against the judgment of the High
Court of Northern Ireland (as well as similar
arguments advanced by the Scottish Government
before the Supreme Court), by holding
that the consent of the devolved legislatures
is not required for the triggering of Article
50.
The Supreme Court’s analysis centred on
the constitutional status of the ‘Sewel convention’
(that the UK Parliament would not
normally legislate with regard to devolved
matters except with the agreement of the
devolved legislature), which is referred to
expressly in the Scotland Act 2016. The
Supreme Court, while recognising that the
Sewel Convention can play a fundamental
role in the constitutional framework concerning
devolution, took the view that its
enforcement was a political matter, reflecting
the systemic tendency to avoid judicial
resolution of matters ruled by convention.
With regard to Northern Ireland specifically,
the Supreme Court dismissed the additional
argument that the consent of the people of
Northern Ireland was required to take Northern
Ireland out of the EU, based on Article 1
of the Northern Ireland Act 1998, which provides
that Northern Ireland shall not cease to
be a part of the UK without the consent of
the people. 38
The three dissenting judges (Lords Reed,
Carnwath, and Hughes) took no issue with
the majority’s decision on the devolution
framework, but disagreed fundamentally
with the majority on the requirement for parliamentary
authorisation to trigger exit under
Article 50 TEU. Lord Reed, for instance,
stressed that the principle that the conduct of
foreign relations is a matter for the Crown is
“so fundamental” that it can be overridden
solely by an express legislative provision or
by necessary implication, 39 and considered
that the 1972 Act in no way precluded the
use of the prerogative power to trigger Article
50 TEU, given that the domestic effect
accorded to EU law by Parliament in enacting
the 1972 Act was ‘inherently conditional’
on the UK’s membership of the EU, the 1972
Act itself imposes no requirement of UK
membership of the EU, and that the 1972 Act
had not changed in any way the fundamental
sources of domestic law or the principle of
parliamentary sovereignty. 40
The Supreme Court’s judgment was not met
with the same level of vituperation as the
High Court judgment, and was hailed (by
some) as ‘the most significant constitutional
judgment for a generation’ and ‘a triumph
for Britain’s judicial system and the Supreme
Court’. 41 The pro-Brexit media turned their
attention to the potential derailing of Brexit
in Parliament. Nevertheless, the Supreme
Court’s centrality in resolving this constitutional
dispute has brought virtually unprecedented
scrutiny to an institution that does not
have the power to strike down statutes.
CONCLUSION
The decision to leave the European Union
will put great strain upon Parliament and
Government as they seek to extricate the
UK from over 40 years of EU membership
and the tens of thousands of laws emanating
from Brussels. It will also put great strain
upon the territorial constitution, particularly
as the Brexit decision has served to revitalise
nationalism in both Northern Ireland and
Scotland.
The courts played a role in the Miller case
where they intervened to clarify the power of
Parliament in relation to important prerogative
powers and constitutional conventions.
It is likely that they will continue to have influence
as Brexit is achieved and as the new
territorial statutes for Scotland and Wales
take effect. But the main challenges ahead
are political. The new devolution settlements
for Scotland and Wales have brought with
them a range of powers that are now shared
with the central Government while Northern
Ireland remains a very delicate situation
where devolution is both volatile and fragile.
The real task facing the UK constitution
in the coming years is that of intergovernmental
relations. The UK Government must
34
A useful summary can be found in ‘Robert Craig: Miller Supreme Court Case Summary’ U.K. Const. L. Blog (26 January 2017) http://bit.ly/2oP2BP0.
35
This includes legislation enacted by Parliament and the common law.
36
[78].
37
[40] – [57].
38
[126] – [135].
39
[194].
40
See in particular [177].
41
See R Greenslade, ‘How the press reacted to the article 50 verdict’ The Guardian 25 January 2017 http://bit.ly/2ofFsHJ.
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