BiE's Prof Abimbola Olowofoyeku provided an analysis of the key issues in Miller, during a public debate on Brexit at Brunel University London on December 8.
The appeal before the Supreme Court in the Miller case is (like the original proceedings in the Divisional Court) not about whether “Brexit” happens or not. Rather, it is about the process for withdrawing from the EU, i.e., the UK’s “constitutional requirements”, for giving notice under Article 50 TEU.
The specific questions that arise from the submissions before the Supreme Court are
(i) which branch of the state (the Executive or the Legislature) has the legal and constitutional authority to make the decision that the UK will withdraw from the EU;
(ii) which branch of the state (the Executive or the Legislature) has the legal and constitutional authority to give notice under Article 50 of the UK’s intention to withdraw from the EU;
(iii) whether the legal or constitutional authority of that branch of the state is constrained by the constitutional structure of the UK as a Union of formerly independent nations forged into a state by international treaties, and;
(iv) whether the legal or constitutional authority of that branch of the state is constrained by the UK’s devolution settlements.
One question that is central to the appeal is whether EU law rights are statutory rights (i.e., whether the ECA 1972 created rights, or whether it simply made ethereal rights material). This is relevant to the issue whether an Article 50 notification by the exercise only of royal prerogative powers would result in changes in domestic law and/or the loss of existing rights under current UK law. A second important question is whether Parliament has, via the ECA 1972, already given the Executive the authority to invoke Article 50 – i.e., effectively to cause a repeal of the ECA 1972 by executive action.
Whatever the outcome, the Supreme Court’s decision in Miller will have far-reaching consequences for UK constitutionalism, and, potentially, for the survival of the UK as a single entity.