Miller Case Brief PDF

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Miller Case Brief...

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Case R (on the application of Miller and another) v. Secretary of State for Exiting the European Union

Nature of Case

Citation [2017] UKSC 5

Author Lord Neuberger Lady Hale Lord Mance Lord Kerr Lord Clarke Lord Wilson Lord Sumption Lord Hodge

Ministers overstepping their power. Whether Government ministers can provide formal notice under the UK’s constitutional arrangements without prior authorization from an Act of Parliament. REVIEW OF EXERCISE OF PREROGATIVE POWER BY COURT/ Notification of intention to withdraw from EU The Supreme Court upheld the Divisional Court's decision that the Secretary of State For Exiting the European Union did not have power under the Crown's prerogative powers to give notice pursuant to art 50 of the Treaty on European Union for the United Kingdom to withdraw from the EU.

Facts

The authority of primary legislation was required before that course could be taken. Consequently, the Secretary of State's appeal against the High Court's decision would be dismissed. The Supreme Court further ruled on certain devolution questions referred to it by the Attorney General for Northern Ireland and the Court of Appeal, Northern Ireland. Appeal from the appeal courts to the supreme court. (use key words) - Judicial review - Constitutional Law - Prerogative Power - EU Membership/ withdrawn - Article 50 - Devolve Powers - 1972 Act o On 1 January 1973, the United Kingdom became a member of the European Economic Communist and certain other associated European organizations. o In the past 40 years, over 20 treaties relating to the EEC, the European Community and the European Union were signed on behalf of the member states, in the case of the United Kingdom by ministers. After being signed, each such treaty was then added to the list of “Treaties” in section 1(2) of the 1972 Act through the medium of an amendment made to that statute by a short appropriately worded statute passed by Parliament, and the treaty was then ratified by the United Kingdom. o The Treaty of Lisbon introduced into the EU Treaties for the first

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time an express provision entitling a member state to withdraw from the European Union. It did this by inserting a new article 50 into the TEU. In addition to adding the Treaty of Lisbon and the TFEU to section 1(2) of the 1972 Act, the 2008 Act, referred to at the end of para 24 above, contained certain restrictions on the UK government’s agreement to changes in the rules of the European Union. Following a manifesto commitment in the 2015 general election to hold a referendum on the issue of EU membership, the UK government laid before Parliament a Bill which became the 2015 Act. Section 1 provided that “[a] referendum is to be held” on a date no later than 31 December 2017 “on whether the United Kingdom should remain a member of the European Union”, and it specified the question which should appear on the ballot papers. The referendum duly took place throughout the United Kingdom on 23 June 2016, and it resulted in a majority in favour of leaving the European Union. Ministers have made it clear that the UK government intends to implement the result of the referendum and to give Notice by the end of March 2017.

Why did this case GO to court? Be Specific about the legislation Too Detailed., you need to include legislation. Procedure is important Article 50 Section 1 and 2, is important, it indicates that member states can withdraw from the EU on its own accord. Procedural History

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Devolution arguments relating to Northern Ireland were raised in proceedings brought by Steven Agnew and others and by Raymond McCord against the Secretary of State for Exiting the European Union and the Secretary of State for Northern Ireland. Those arguments were rejected by Maguire J in a judgment given in the Northern Ireland High Court on 28 October 2016 Miller was 18th of October 2016. The divisional Court.

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The Attorney General for Northern Ireland supports the Secretaries of State’s case that no statute is required before ministers can give notice of withdrawal. In addition, there are interventions on devolution issues by the Lord Advocate on behalf of the Scottish government and the Counsel General for Wales on behalf of the Welsh government; they also rely on the Sewel Convention

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The main issue was raised in proceedings brought by Gina Miller and Deir dos Santos (“the applicants”) against the Secretary of State for Exiting the European Union in the Divisional Court of England and Wales. Those proceedings came before Lord Thomas of Cwmgiedd LCJ, Sir Terence

Etherton MR and Sales LJ. They ruled against the Secretary of State in a judgment given on 3 November 2016 - R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin). This decision now comes to this Court pursuant to an appeal by the Secretary of State.

Issue

Ratio

Which court was it in first? It was in divisional court and it was appealed. “Leap of Procedure” It leaped from the court of appeal. The court of appeal would not have had any powers to be able to make any decision. Time was of the essence. Prerogative powers, the main issues on this appeal concerns with the ability of ministers to bring about changes in domestic law by exercising their powers at the international level, and it arises from two features of the UK constitional arrangements. - 1972 Act ( Paragraph 34) - The question before the court, not what happened before, what are the questions before. - What are the legal steps required to leave the EU? - The core question, can the UK government, constitutionally and lawfully give notice without prior authorization of an act of Parliament. - Second Question: Devolution, does the devolved governments of Scotland, Ireland and wales have to be consulted? Or is it all the UK government. - Legal Precedent, this is the decision and the detail of why, answer to the questions and the elements that follow the precedent. - Paragraph 60, 67, 68 and 69. - Secretary of state can exit and enter treaties without an act of parliament. However, the secretary of state cannot do this if it causes a change in UK domestic Law. - The effect of the 1972 Act was unprecedented. - If domestic law is affected then it MUST go through parliament rather than apply prerogative powers. Devolution: Can they be consulted? No.

Reasoning

Disposition of Judgment

The Supreme Court considers that the terms of the ECA, which gave effect to the UK’s membership of the EU, are inconsistent with the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament Paragraphs 88 section 2, does not give ministerial power to withdraw and the court looked at the long title of the act. The Supreme Court by a majority of 8 to 3 dismisses the Secretary of State’s appeal (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting). In a joint judgment of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the

decision of the UK to withdraw from the European Union. Each of the dissenting justices gives a separate judgment.

Concurring or Dissenting

Outcome of the case. - First question: dismissed 8 to 3 - Second Question: unanimous decision. Lord Reed, with whom Lord Carnwath and Lord Hughes agree, considers that the effect which Parliament has given to EU law under the ECA is inherently conditional on the application of the EU treaties to the UK and therefore on the UK’s membership of the EU. The ECA does not impose any requirement or manifest any intention in respect of the UK’s membership of the EU. It does not therefore affect the Crown’s exercise of prerogative powers in respect of UK membership [177].  Lord Carnwath observes that service of notice under Article 50(2) will not itself change any laws or affect any rights but is merely the start of an essentially political process of negotiating and decision-making within the framework of that article. The Government will be accountable to Parliament for those negotiations and the process cannot be completed without the enactment by Parliament of primary legislation in some form [259]. Article 50 started the process but the executive can conduct arrangements as they saw fit. Lord Hughes Paragraphs 277-281 Parliament can make or unmake any law and the triggering of that unmaking could be done by prerogative powers. Devolution: is the statutory delegation of powers from the central government of a sovereign state to govern at a subnational level, such as a regional or local level. - Paragraphs 1-5 talked about the referendum. They kept talking about how there is no legal requirement to act out on the referendum.

Notes

Tutorial Notes: o o o

Make sure to put paragraph reference You would not be marked down if you write ratio and reasoning similar. Even if there is a clash, you can sort of include it in both. Make notes while briefing the case....