The Miller Supreme Court case put parliament back in the driving seat but MPs squandered the opportunityby Mark Elliott / July 31, 2018 / Leave a comment
The Brexit-related machinations of recent weeks have certainly made for excellent political theatre. But they hardly reflect well on the British constitutional system, which is now audibly creaking under the weight of Brexit as different institutions vie for control of the process.
The writing began to appear on the wall almost immediately after the referendum, when controversy arose about who had the power to trigger Article 50. When the Supreme Court weighed in in the Miller case, it came down firmly in favour of parliament, ruling that the government would be able to initiate Brexit only if parliament empowered it to do so, albeit that the UK parliament could lawfully go ahead and authorise the triggering of Article 50 whether the devolved legislatures liked it or not.
At the time, Miller appeared to be of immense political significance because it put parliament so firmly in the Brexit driving seat. However, 18 months on, the picture looks rather different, and the judgment has proven to be far from the final word on the underlying controversies.
For one thing, the devolved and UK governments have remained at loggerheads, in particular over where “repatriated” powers should lie post-Brexit. Indeed, the European Union (Withdrawal) Act 2018 was enacted without Holyrood’s consent, notwithstanding a well-established convention that UK legislation concerning devolved matters and powers should normally be enacted only with devolved legislatures’ blessing. Thus, just as Miller was animated by disagreement about the relative constitutional powers of UK and devolved institutions when it came to triggering Brexit, so the Withdrawal Act is mired in controversy about their respective roles when it comes to shaping the post-Brexit legal landscape.
The Supreme Court has once again been called upon to settle the matter—judgment is expected later this year—following a challenge by the UK government to the constitutionality of Holyrood legislation enacted in the light of its opposition to Westminster’s Withdrawal Act.
While the territorial-constitutional aftershocks of the referendum continue to reverberate in the courts, the tussle between parliament and government also continues. Parliament attempted to assert some degree of control over the Brexit negotiations by adding provisions to the Withdrawal Act requiring a so-called meaningful vote. But whether those provisions really deliver is very far from certain. While the Act prohibits the ratification of any Withdrawal Agreement in the absence of parliamentary approval, a refusal by parliament to sign off…