An In-Depth Look at the Miller Case

As it is widely known, last June the electorate of the UK voted to leave the European Union. Subsequently, Theresa May was elected by the Conservative party as the leader of the Government, arriving with the mantra of “Brexit means Brexit” and the aim of implementing Brexit at any cost. It is therefore crucial to analyse the latest legal developments in the context of the new Brexit reality, and to do so, this article will address the impact of the case of R (Miller and Dos Santos) v Secretary of State for Exiting the European Union. (Source: R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5).

Soon after Theresa May was elected, she started proceedings aimed at triggering Article 50 of the Treaty of Lisbon, which is the mechanism that a Member State needs to activate to start negotiations to leave the EU. However, Miller and Dos Santos brought a case against the Government not to stop Brexit, as many people have assumed, but to make sure that the Government does not abuse its power by subverting Parliamentary Sovereignty. Thus, the main purpose of the case was to ensure that the Parliament gives the Government the power to trigger Article 50. (Source: R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin))

Firstly, the reason why this case is so important is because of the political and public attention that it received and the precedent that would have been set if this case had not been brought forward. Brexit has been one of the biggest political debates that this country has ever taken part in, and has produced severe emotions on both sides. When the case concluded in the High Court, it became front page news. Notably, the Daily Mail printed a very controversial front page entitled “Enemies of the People”. This headline broke down the old tradition that the media does not over-criticise judges, so that they can keep their political independence- a core value of the judiciary. Interestingly, Lord Neuberger, President of the Supreme Court, took part in an interview where he stated that “unjustified attacks on the judiciary undermined the rule of law”. Such statement hence stresses the importance of the need for the media to respect the independent role of the judiciary in our modern and civilised society and the legal expertise of the said judges. To further emphasise the significance of the analysed issue, it is crucial to note the statement of the Lord Chancellor, Elizabeth Truss. Bound by the oath of her office to protect the independence of the judiciary (Source: Constitutional Reform Act 2005), she did eventually release a statement defending the judges, however, it was criticised for being far too late and inadequate in its performance. In this context, it is also imperative not to forget the oath taken by the judiciary. The said oath emphasises that judges complete their duty “without fear or favour, affection or ill will”.

Other issues that must be considered with regard to R (Miller and Dos Santos) v SOS for Exiting the EU are the potential consequences of such a case not being brought forward and the results factually achieved by the case. The Government argued that triggering Article 50 is based on the royal prerogative, thus any consultation of elected members of Parliament was unnecessary. However, the applicant argued to the contrary because of the constitutional significance of leaving the EU and the fact the referendum was only advisory. The author agrees with the applicant, on the basis that if the Government were allowed to trigger Article 50 without the consent of Parliament, this could set a precedent to allow the executive to abuse their powers in the future. In fact, Nicola Sturgeon instructed Lord Advocate of Scotland to also bring an action against the Government, so that the devolved powers of Wales, Scotland and Northern Ireland should have a hand in the negotiations. While the Supreme Court denied the plea of the devolved powers (Source: R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5), it could be argued that they should nevertheless have a direct say about the course of the negotiations.

What is even more disturbing is that Brexit and the R (Miller and Dos Santos) v SOS for Exiting the EU case was defended by a Government that has technically not been elected and whose manifesto has not been approved by the electorate. Furthermore, although the referendum provided a “winner” of 52%-48%, the winning percentage actually decreases to 26% once those who did not vote or could not vote are included. In addition, speaking from a legal perspective, the question asked at the polling station was overly simplistic and ambiguous.

In conclusion, the case of R (Miller and Dos Santos) v SOS for Exiting the EU stresses the significance of consulting the Parliament on any constitutionally important issues by the Government. It also emphasises that the independence of the judiciary should be reaffirmed in the apparent new age of popularism, which appears to be present in the political plane of the UK and several other countries across the world.