Gina Miller 2016/7 case study

Events

• 2016 - Post-Brexit ref govt used prerogative powers to withdraw from EU

  • This was done by David Davis serving an Article 50 notice (from the 2009 Treaty of Lisbon) to withdraw the UK from EU treaties without prior authorisation by an Act of Parliament

Issues with the serving of Article 50 (Gina Miller’s argument)

• Miller and Dos Santos argued that prerogative powers couldn’t be applied to acts which might lead to a change in domestic law

• Withdrawal from the EU would change domestic law so the govt needed an Act of Plmt to trigger the withdrawal from Article 50 (example of representative democracy)

• Case heard in the High Court in Oct 2016, bought to appeal in the SC later in 2016

Result and actions taken

• Majority 8-3 in favour of Miller

• Act of Plmt required to authorise ministers to give notice of the decision of the UK to withdraw from the EU

• Key reason given: European Communities Act 1972 authorised EU law becoming UK law and taking primacy over UK domestic law

  • Leaving EU would change law so AoP needed

• Plmt passed the Act and Article 50 was triggered

Significance (constitutionally and practically)

• Most important constitutional case in recent history

• Set precedent by reasserting the authority of Plmt (over the govt) and defining the boundaries of executive power

• Maintains principle that govt can make and unmake treaties but only plmt can change the law

• Showed that the rule of law takes precedent over political considerations

  • Judgement had little to do with the political issues or benefits of withdrawal from the EU/timing or nature of the departure/future arrangements with the EU

• Plmt passed an Act and Article 50 was triggered within the original deadline of March 2017 so did not have any effect on the UK leaving the EU

Criticisms of the case/judges

• Although it was maintained that it was an apolitical decision, the judges were dubbed ‘the enemies of the people’ by the Daily Mail for ‘blocking the popular will of the public’

  • Claim that the judgement would lead to constitutional crisis

• High court case attracted vitriolic criticisms

• Brexiteers such as Farage condemned the judges for unwarranted judicial activism and for allowing Europhile sympathies to affect their judgement

• Before the SC case, the media intently scrutinised the judge’s personal positions on the EU on social media and via their family

• Lord Chancellor, Truss - publicly defended the independence of the judiciary