One aspect of the Supreme Court’s ruling last week that might have escaped your attentionby Sionaidh Douglas-Scott / January 31, 2017 / Leave a comment
Constitutional cases rarely enter the public consciousness in the UK, but the Miller case is different. Miller has been widely proclaimed as the most important constitutional case of its generation. Indeed, how could this be otherwise, given its high media profile, and arresting press headlines which castigate judges as “enemies of the people,” or give potted biographies of our senior judiciary?
Most of those who have taken an interest in this case will know it as one in which the importance of parliamentary sovereignty was reaffirmed, and in which the Supreme Court agreed with the High Court (albeit by majority) that parliament must give legislative authority for Theresa May to trigger Article 50. But there is probably less awareness of the other key issue decided in Miller—which is that devolved parliaments have no legal right to refuse their consent to such legislation. On that issue, the UK Government won its case unanimously. In fact, Miller relates not just to the rights of one parliament at Westminster, but to the rights of four parliaments in each of the UK’s four capital cities.
This devolution dimension is highly important, for it goes to the very existence of the United Kingdom. Brexit is revealing the fractures within Britain. Leaving the European Union may lead to the breakup of the UK, which is not a unitary state, although there was just one EU Referendum throughout the UK. But of course, Scotland and Northern Ireland voted in favour of remaining in the EU and argue that their votes should also be respected. Since 1998, there has been considerable devolution within the UK, leading, some argued, to a fundamental change in the British Constitution. In Miller, lawyers for the Scottish, Northern Irish and Welsh governments argued that legislation devolving powers to Holyrood, Stormont, and Cardiff required agreement of those legislatures before the Article 50 notice was served. Miller is notable for the copious references made by advocates to old cases, dating from the English civil war, as support for the argument that the executive should not claim prerogative power at the expense of parliament. But the authorities cited by the Scottish Lord Advocate were no less ancient, with reference to the Acts of Union of 1706 and 1707, and the Scottish Claim of Right of 1689. Each side was staking its claim on aged and revered constitutional history.