If ever there is a case for interested ‘third’ parties to appear, or at least intervene through written submissions, now is the time for Professor John Finnis, the Judicial Power Project and other constitutional experts to present their views. It will then be for the ‘first’ and ‘second’ parties, as well as the Justices, to consider them in what promises to be a great constitutional law symposium of a case in the UK Supreme Court. For example, in the Conjoined Twins’ case [2001] 2 WLR 480, discussed in Uneasy Ethics (2003), the then Archbishop of Westminster’s amicus curiae brief set out the moral principles in a way which shaped the judgments in the Court of Appeal, even though the judges understandably disagreed with the intervener’s application of those principles to the particular case. In Miller, now is the time to point out where the swift judgment in the High Court has left us in suspense. For instance, paragraph 68 of the Miller judgment spotted a statutory difference between increasing powers of EU institutions over the UK and withdrawing from those powers: ‘Section 6 of the 2008 Act provided for parliamentary control of Ministers before they took action in relation to certain decisions to increase the powers of the EU institutions. It did not provide for any similar parliamentary control in relation to a decision to give notice under Article 50 of the TEU.’ The second sentence is then left hanging. We are not told that s6 was repealed by s14 of the European Union Act 2011. Paragraph 71 concludes by explaining that the new version, s4 of the 2011 Act, ‘sets out cases where a referendum would be required, focusing on cases where there would be an extension of the competences of powers of EU institutions’ but omits the point in the second sentence of paragraph 68, ie that it also did not provide for any similar parliamentary control re art. 50. This difference between extending powers to the EU and withdrawing from the EU under the 2011 Act is point 5 of the Secretary of State’s submission as recorded in paragraph 76. But then the 2011 Act disappears from the judgment of the High Court, save for a passing dismissal of any need to address the claimants’ arguments on this statute in paragraph 102. With a little more time, and regardless of which way they interpret the law, it would be good to see Supreme Court Justices’ judgments solving all the mysteries of this case.
Simon Lee is Professor of Law at Open University and Emeritus Professor of Jurisprudence at Queen’s University Belfast.
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