Slides accompanying Cambridge Centre for Public Law talk in which Professor Mark Elliott discusses the UK Supreme Court's judgment in the Miller case

1. The Supreme Court’s
Judgment in Miller:
An Evaluation
Professor Mark Elliott

2. Evaluating the judgment
‘Constitutional scale’
Based on sound principle?
‘Source of law’
Irrelevant or incoherent
Territorial constitution
Neglect of principle?
Over-
constitutionalisation?
Under-
constitutionalisation?

3. ‘Constitutional scale’

4. ‘Major’ constitutional change
Majority Lord Reed
‘There is a vital difference
between changes in
domestic law resulting from
variations in the content of
EU law arising from new EU
legislation, and changes in
domestic law resulting from
withdrawal by the UK from
the EU.’
‘There is no basis in the
language of the Act for
drawing any such distinction.
[It] simply creates a scheme
under which the effect given
to EU law in domestic law
reflects the UK’s international
obligations under the Treaties,
whatever they may be.’

5. ‘Major’ constitutional change
It would be ‘inconsistent with long-standing
and fundamental principle for such a far-
reaching change to the UK[’s] constitutional
arrangements to be brought about by
ministerial decision or ministerial action
alone’.

6. ‘Major’ constitutional change
‘[A] major change to UK constitutional
arrangements can[not] be achieved by
ministers alone.’ Such changes can be
‘effected in the only way that the UK
constitution recognises, namely by
Parliamentary legislation’.

7. ‘Major’ constitutional change
‘[T]he main difficulty with the Secretary of
State’s argument’ is that it ‘fails to
acknowledge the constitutional implications
of withdrawal from the EU’. The implications
of withdrawal are ‘fundamentally different’
from the implications that would flow from
‘the abrogation of particular rights, duties or
rules derived from EU law’

8. ‘Major’ constitutional change
The ‘loss of a source of law is a
fundamental legal change which justifies
the conclusion that prerogative powers
cannot be invoked to withdraw from the EU
Treaties’.

9. • HRA/ECHR
• HRA protects ‘Convention rights’
• Certain provisions of ‘the Convention’ (s 1(1))
• ECHR ‘as it has effect for the time being in relation to the
United Kingdom’ (s 21(1))
• How would Miller apply?
• Could prerogative be used to withdraw from ECHR?
• Is ECHR-withdrawal a ‘major’ change?
• Is HRA therefore to be taken to preclude prerogative?
How to identify ‘major’ changes?

10. What is the ‘fundamental principle’?
Parliamentary
sovereignty
Separation of
powers
• Does it add anything?
• Conflates supremacy and
monopoly?
• Circular?
• Allocation of ‘major
changes’ to legislature?
• But treaty-making is an
executive function unless
incompatible with statute
• What does the statute
mean?

11. Sources of law

12. The majority’s view
EU law is ‘an independent and over-
riding source of domestic law’
‘The EU Treaties, EU legislation and the
interpretations placed on these
instruments by the Court of Justice are
direct sources of UK law.’

13. What follows from this?
1
2
3
4
The EU Treaties and EU legislation are direct
and independent sources of domestic law
EU law is therefore domestic law
The default consequence of triggering
Article 50 would be the removal domestic law
The prerogative cannot be used to change
domestic law and so cannot be used to trigger
Article 50

14. Is the majority right?
A
B
C
D
The rule of recognition was not altered
by EU membership and will not be
altered by withdrawal
EU law only has effect in the UK because
of the ECA
Proposition B is ‘unrealistic’.
EU law is a ‘direct’ and ‘independent’
source of domestic law

15. Two analyses
Dependent and
independent?
Merely descriptive
claim
Can EU law be both
dependent on ECA and an
independent/direct source
of law?
Is majority merely observing
that the EU ‘makes law’?
If so, does that claim have
any legal significance?

16. Lord Reed
‘EU law is not itself an independent source of
domestic law, but depends for its effect in
domestic law on the 1972 Act: an Act which does
not confer effect upon it automatically and without
qualification, but has to be interpreted and
applied in the wider context of the constitutional
law of the UK.’

17. The territorial constitution

18. The issue
Scotland Act 1998
Section 29
Lord Advocate
‘A provision is outside
[legislative] competence so
far as … it is incompatible
with … EU law.’
‘[I]f the Scottish Parliament
or … Government were to
do something [after
withdrawal] that would
previously have
contravened the Treaties,
this would not breach [“EU
law” as defined in the Act].’

19. The Sewel Convention
Devolved matters
Memorandum of Understanding
Devolved competence
DGN10
‘The UK Parliament would
not normally legislate with
regard to devolved matters
except with the agreement
of the devolved legislature.’
‘Provisions … which alter
the legislative competence
of the Parliament or the
executive competence of
the Scottish Ministers’

20. Majority on conventions
‘Judges … 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 … but they
cannot give legal rulings on its operation or
scope, because those matters are determined
within the political world.’

21. Majority on Scotland Act 1998, s 28(8)
‘[T]he UK Parliament is not seeking to convert
the Sewel Convention into a rule which can be
interpreted, let alone enforced, by the courts;
rather, it is recognising the convention for what it
is, namely a political convention, and is
effectively declaring that it is a permanent
feature of the relevant devolution settlement.’

22. Precedent and principle
Precedent Principle
Patriation Reference
Supreme Court of Canada
Evans
Upper Tribunal
Consistent with ‘recognising’
conventions when deciding
legal questions?
Marginalisation of conventions
— and of constitutional
principle?

23. Miller’s legacy

24. • Politics of Brexit
• Law and politics of territorial constitutionalism
• Juridical relevance of conventions
• Scope of royal prerogative
• Nature of parliamentary sovereignty
• Nature of constitutional adjudication
Miller’s legacy