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Brexit, Miller, and the Regulation of Treaty Withdrawal: One Step Forward, Two Steps Back?

  • Alison L. Young (a1)
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In “the constitutional case of the century,” the U.K. Supreme Court concluded that the Government did not possess the prerogative power to withdraw from the European Union. However, while it may be clear from the decision that legislation was required to empower the Government to notify the European Union of its intention to leave, the scope of the Court's reasoning in Miller is otherwise uncertain. At its broadest, the decision would apply to the withdrawal from any treaty that had created rights for individuals, regardless of whether such a treaty had been implemented into domestic law or not. At its narrowest, it only applies to the EU Treaties, which created a set of arrangements in international law that are so esoteric, they are unique to the European Union. To demonstrate how one judgment can generate such a range of interpretations, this essay unravels the different strands of argument running through the decision and considers the criticisms leveled by scholars. It will argue that whether U.K. law requires legislation to withdraw from a treaty depends upon the extent to which that treaty creates rights in domestic law, the constitutional importance of the legislation incorporating the treaty into U.K. law, and the circumstances in which a legal challenge to the use of the prerogative arises. Miller provides no general answer, merely a series of questions.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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2 There is also considerable controversy as to whether the Supreme Court reached the right conclusion. See, e.g., Richard Ekins, Constitutional Practice and Principle in the Article 50 Litigation, 133 Law Q. Rev. 347 (2017); David Feldman, Pulling a Trigger or Starting a Journey? Brexit in the Supreme Court, 76 Cambridge L.J. 217 (2017); Mark Elliott, The Supreme Court's Judgment in Miller: In Search of Constitutional Principle, 76 Cambridge L.J. 257 (2017).

3 Miller, [2017] UKSC at 54.

4 Id. at 50.

5 Id. at 51.

6 Id. at 72–73 and 83.

7 Id. at 88.

8 Id. at 82.

9 Id.

10 John Finnis, Brexit and the Balance of Our Constitution (Sir Thomas More Lecture, Dec. 1, 2016).

11 European Communities Act 1972, c. 68 § 2(2) (U.K.).

13 Miller, [2017] UKSC at 55.

14 Id. at 56.

15 Id. at 57.

17 Miller, [2017] UKSC at 62 and 69–72.

18 Id. at 83–84.

19 Id. at 78.

20 European Communities Act 1972, c. 68 § 2(2) (U.K.).

21 Miller, [2017] UKSC at 79.

22 Human Rights Act 1998, c. 42 § 3 (U.K.).

23 Id. at § 6.

24 Id. at schedule 1.

25 Id. at § 21.

26 See Alex Peplow, Withdrawal from the ECHR After Miller—A Matter of Prerogative?, U.K. Const. L. Blog (Feb. 28, 2017); Jack Williams, Miller and the Human Rights Act 1998: Can the Government Withdraw the UK from the ECHR by the Royal Prerogative?, Pub. Sector Blog (Feb. 28, 2017); and Gavin Phillipson & Alison L. Young, Would Use of the Prerogative to Denounce the ECHR “Frustrate” the Human Rights Act? Lessons from Miller, 2017 Pub. L. 150.

27 Miller, [2017] UKSC at (Brexit Special Extra Edition) 60–61.

28 Id. at 80–81.

29 Id. at 90.

30 Id.

31 Id.

32 Id. at 67.

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