The royal prerogative is a term given to the powers of the crown within the executive process of British politics. Before the Bill Of rights 1689, which is described as one of the basic instruments of the British constitution , there was much less restriction placed on the powers of the crown. However since then there was a complete discontinuation of laws without the consent of parliament.
This paper will aim to analyse the extents of prerogative power within the British constitution and Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union 2017 UKSC 5. I will also attempt to come to a conclusion on whether the majority judgement or the dissenting judgement is better able to answer the questions that arose surrounding the ability and authority of the government to initiate article 50 and the UK’s withdrawal from the EU without reference to Parliament.
The main question that arises is whether or not the government has the right to withdraw from the European Union without parliamentary involvement. The Miller case involved the claimant addressing this issue and arguing that it was out of the governments right to use its prerogative power to repeal or abolish Acts of Parliament, including triggering article 50. The claimant argued that the consequence of the government using it’s prerogative powers to trigger Article 50 would undermine the 1972 act ; along with this individuals in the UK had acquired rights through the EU law and these would be affected, the divisional court agreed and stated that article 50 cannot be triggered without an act of parliament.
Miller was then heard by a 11-justice panel of The Supreme Court who ruled, by an 8–3 majority, against the Government. The majority judgement consists of three key elements, the relationship between EU and UK law; the operation of the European Communities Act 1972 ; and the extent of the constitutional impact of EU membership. Lord Neuberger stated that the government has a prerogative power to change treaties however not if it will affect people’s rights in domestic law. The judges then declared “The supreme court holds that an act of parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union.”
Lord Reed took a dissenting view to this and stated that EU law derives from a statute which derives from the rule of recognition. Concerning the subject of triggering article 50 he also argues that has to be rejected because it ignores the conditional basis on which the 1972 Act gives effect to EU law. The lord stated that if the domestic rights of citizens are revoked it is not due to the crown’s exercise of prerogative powers but because of the act of parliament itself.
The dissenting judgement emphasises the point that Ministerial decisions that have greater importance than leaving the EU have been completed without any judicial control. Examples of this include the declarations of the world wars in 1914 and 1939. Lord Reed argues that if decisions such as this could be carried out with not parliamentary involvement
The judges reached a unanimous decision on the devolution issue that there was no legal obligation to consult the consent of devolved institutions. The judges stated that devolution acts were passed by parliament on the assumption that the UK would be a member of the European union , however this does not mean that the UK must remain a member. They also added that the devolved institutions do not have a veto on the UK’s decision to exit the EU.They believed that relations with the EU and foreign affairs do not concern the devolved institutions and are reserved to the UK government and parliament only.