Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union: SC 24 Jan 2017

Parliament’s Approval if statute rights affected

In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying that the notice could be given under the Crown Prerogative.
Held: The appeal failed (Majority 8 to 3). Leaving the EU would inevitably involve alteration of citizens’ statutory rights, and as such parliamentary approval was required, and the government could not rely solely on use of the Crown Prerogative to issue the notice. The giving of the notice would lead to an inevitable conclusion.
‘although the 1972 Act gives effect to EU law, it is not itself the originating source of that law. It is . . echoing the illuminating analysis of Professor Finnis, the ‘conduit pipe’ by which EU law is introduced into UK domestic law. So long as the 1972 Act remains in force, its effect is to constitute EU law an independent and overriding source of domestic law.’
. . And: ‘ the fact that EU law will no longer be part of UK domestic law if the United Kingdom withdraws from the EU Treaties does not mean that Parliament contemplated or intended that ministers could cause the United Kingdom to withdraw from the EU Treaties without prior Parliamentary approval. 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 United Kingdom from the European Union. The former involves changes in EU law, which are then brought into domestic law through section 2 of the 1972 Act. The latter involves a unilateral action by the relevant constitutional bodies which effects a fundamental change in the constitutional arrangements of the United Kingdom.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes, Lord Hodge
[2017] UKSC 5, [2017] 2 WLR 583, [2017] WLR(D) 53, UKSC 2016/0196, [2017] NI 141, [2018] AC 61, [2017] HRLR 2, [2017] 1 All ER 593, [2017] 2 CMLR 15
Bailii, Bailii Summary, WLRD, SC, SC Summary, Vid 0512am, Vid 0512pm, Vid 0612am, Vid 0612pm, Vid 0712am, Vid 0712pm, Vid 0812am, Vid 0812pm, SC Vid ummary
European Union Act 2011, European Parliamentary Elections Act 2002 1, European Communities Act 1972, European Communities (Amendment) Act 2002, Treaty on the Functioning of the European Union, Bill of Rights 1688 1 2, Claim of Right Act 1689
England and Wales
Citing:
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Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
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Ban on Prisoners talking to Journalists unlawful
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. .
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The appellant challenged the absolute prohibition within the province of the giving of blood by any male who had had sex with another male, saying that the ban was incompatible with European law.
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UK free to disenfranchise citizens resident abroad
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Supreme Court of Canada
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Cited by:
See AlsoMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedCherry, Joanna Cherry QC Mp and Others for Judicial Review SCS 4-Sep-2019
(Outer House) . .
CitedCherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
CitedMiller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, European

Leading Case

Updated: 02 November 2021; Ref: scu.573344