What follows is a layperson friendly version of my earlier note at https://dbfamilylaw.wordpress.com/2016/11/05/rights-and-the-miller-brexit-case/
On 3 November 2016 the High Court (in this case, three senior judges: the Lord Chief Justice Lord Thomas, the Master of the Rolls Sir Thomas Etherington and Lord Justice Sales) handed down their judgment in R (Miller & Anor) v The Secretary of State for Exiting the European Union  EWHC 2768 (Admin) (‘Miller’; http://www.bailii.org/ew/cases/EWHC/Admin/2016/2768.html). For me the central question is: what are the court’s views on the question of a UK citizen’s rights (ie not only rights under Human Rights Act 1998); and how should Parliament deal with them?
The case concerned whether the Government – the ‘executive’ – could decide on its own to trigger leaving the European Union (Art 50); or whether the UK constitution requires that Parliament is consulted on the process; and that it considers the options and makes the decision as to triggering Art 50.
In what follows the terms ‘executive’, ‘government’, ‘Crown’ and ‘Secretary of State’ are used interchangeably and mean the same thing. They are the executive and exercise ‘prerogative’ power. They are to be contrasted (so far as possible under the UK constitution) from Parliament (ie the legislature) under the theory of separation of powers.
It is clear that, from the start, Parliament proceeded on the assumption that it could only be advised by a referendum, not bound by its result; and MPs had a House of Commons briefing paper to this effect before they voted. Nothing in the judgment affects the fact that a UK referendum has said that a majority of those who voted want to leave the EU. It is a question of the legislation to achieve this which the case was all about.
In English law rights are mostly defined by our common law – that is judge-made law; or they are created or restricted by statute. Thus what might once have been a right – for example, to carry a gun or to drive a car at whatever speed the driver chooses – are banned, restricted or regulated by Act of Parliament.
The question the court dealt with in the Miller case was: who defines the extent to which rights can be restricted, changed or withdrawn? Is it the Government (Crown prerogative, ie the executive); or is it Parliament (ie the legislature)? The examples given were two actual cases: a hotel which was requisitioned by the Army in the First World War; and a scheme for compensation of victims of crime. In both cases statute law said that the hotel could claim compensation, where the Army (ie the Government) said it need not pay; and that the victim could claim more than the Government department allowed, when setting up a later scheme.
Of both of these cases the courts said: if Parliament had said the claimant was entitled to more it was not for the Government by its unilateral dictat to say less. If something different was to be setup than what the original law allowed for, only Parliament could say so. The hotel and the victims both were entitled to compensation as Parliament intended.
Applied to EU withdrawal (‘Brexit’) these legal principles mean that if rights are to be withdrawn then only the legislature (Parliament) can do it. It cannot legally be done by the executive (the Government) alone under any prerogative powers. What is more, if Parliament is to withdraw rights effectively, it must be done in clear and specific terms by Act of Parliament. It is only fair that we should know our rights. And even more is this so if our rights are to be taken away.
So how does all this affect the Miller claimants? It affects them because, as a result of UK joining the EU in 1973 (under European Communities Act 1972 (ECA 1972)) various rights were, said the judges, created by Parliament. These rights depended upon UK being part of Europe. The rights include:
- (i) Rights which are ‘capable of replication’ in English law. If Parliament choses it can redefine or recreate these rights. As yet it has no clear plans to do so, beyond reference by the Government barristers to a ‘Great Repeal Bill’. The judges were sceptical on this point. The rights which could be lost include UK workers’ rights in the EU and benefits and health rights of UK nationals living elsewhere in the EU.
- (ii) The rights of UK citizens and companies in relation to their activities in other EU countries.
- (iii) Rights which have an effect in UK domestic law, but which would be lost on withdrawal from EU. These rights include, said the court, the right to seek a reference to the Court of Justice of the European Union and to seek to persuade the EU Commission to take regulatory action over environmental protection legislation occurring within UK and grant a remedy in relation to it.
- (iv) The judges also stressed that ‘it is important to bear in mind that there are other substantial areas of EU law such as the schemes of regulation which take effect as part of the law of the United Kingdom’ which – for good or ill – will be lost. For example, in my area of law, the conformity provided for children law and maintenance enforcement will be lost to UK nationals, and this will be to their additional expense and disadvantage.
In all these cases – especially (i) – domestic law rights created by ECA 1972 will be lost. Category (ii) rights depend on membership of the EU so cannot be recreated by Parliament without reciprocal agreement from member states.
So what power rests with the Government – prerogative rights – to alter an individual’s domestic law rights? There is no power to alter the law, save where Parliament says so by clearly expressed statute. This, as the court stressed, is the constitutional principle argued for by Parliamentarians against the king in the 17th century; and it was resolved in Parliament’s favour – in favour of democracy – by the Glorious Revolution settlement in 1688. The principle enabled Tom Paine in 1776 to assert that the law was king, not the king law. And it was these principles which underlay the resolution of the claims for the hotel and the criminal injuries claimants.
So what did Parliament intend when it passed the original ECA 1972? Can Parliament then be taken to have left everything to the Government? No said the court. It is especially unlikely that Parliament ‘intended to leave [changes in domestic law] in the hands of the Crown through the exercise of its prerogative powers’ (ie to the Government unchecked by Parliament). Parliament had ‘taken the major step of switching on the direct effect of EU law in the national legal systems by passing the ECA 1972’, the judges refused to believe that Parliament ‘intended that the Crown should be able by its own unilateral action under its prerogative powers to switch it off again’.
Any change to the law and to regulation of UK citizen’s rights should only by Parliamentary approval. Triggering Art 50 notice to leave the EU would, as night follows day, affect personal and commercial rights. That could not be provided for by Government action alone. Certain rights were created for UK citizens by Parliament by ECA 1972. If they are to be removed, this must be done by Parliament and not by the Government (executive, Crown etc). That is the way English law operates. And it has done so since the 17th century.
The judges’ decision does not mean UK will not leave the EU; but if their decision remains after any appeal to the Supreme Court, the result is that the referendum was only the first step in that direction. Parliament – not the vague answers of the referendum or the dictat of Mrs May or her Government – must control the next steps as our law has required, at least since the late 17th century.