At Defining Ideas, Michael McConnell: A Question Of Prerogative. From the introduction:
Next week the Supreme Court of the United Kingdom will hear arguments in the most important constitutional case in modern European history. At issue is whether Prime Minister Theresa May has authority to exercise Britain’s right to exit the European Union (EU) without a vote of Parliament. The case is styled Secretary of State v. Miller. … On November 3, the British High Court of Justice somewhat unexpectedly held that the Crown—meaning the Prime Minister—lacks authority to effectuate the results of the referendum without parliamentary approval. The government has appealed that decision, both sides have filed briefs, and the case will be argued for four days, beginning on December 5.
…
The British Supreme Court’s decision thus has enormous practical importance. It is therefore surprising that the legal logic of the case has received so little attention. It may seem presumptuous for an American constitutional scholar to wade into the arcane waters of British constitutionalism, but the Miller opinion rests on fundamental and long-standing legal principles, susceptible to analysis and understanding even by an outsider. I believe the High Court’s decision rests on a mistake. I do not know enough about the jurisprudence of the British Supreme Court, which was formed only in 2009 and has never faced a case of this nature before, to predict whether that court will affirm or reverse. But I do think there are strong grounds for reversal.
And from the core of the argument:
The Miller Court reasoned that Brexit would change domestic law because European laws and regulations would cease to apply when the United Kingdom was no longer part of the Union [Ed.: and therefore it it required an act of parliament] . With due trepidation as an outsider to British constitutional law, this strikes me as logically incorrect.
What happens if the Crown gives notice under Article 50 [of the EU treaty], and Britain ceases to be a member of the European Union? This depends on an interpretation of the ECA [European Communities Act, i.e., the U.K. implementing legislation]. The key language comes from section 2(1) of the Act: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the [EU] Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”
One possible reading (the more plausible, in my view) is that the rights, obligations, etc. arising “under” the Treaties are applicable in Britain only insofar as Britain is subject to the Treaties. If that is correct, there is no need for the Crown to go to Parliament in order to effectuate Brexit. The ECA already anticipates Brexit, and in the event of withdrawal from the Treaty, European law ceases to apply—not because the Crown has changed the law, but because the provisions of the law are triggered by membership in the EU.
A second possible reading is that the ECA has brought European law into force in Britain, and that it will require an Act of Parliament to repeal it. But this does not mean the Crown lacks power to give notice under Article 50. It merely means that the unmaking of the Treaty will not have full effect without passage of legislation. This is no different from any case in which a treaty calls for a change in law or the expenditure of money. Most treaties are not “self-executing,” but require implementing legislation. Merely because implementing legislation is needed does not mean the Crown cannot enter a treaty. …
This sounds right to me, and it has significant implications for U.S. constitutional law (which is similarly based on the fundamental proposition that the executive cannot change domestic law). In particular, it has implications for President Trump's possible withdrawal for various treaty regimes, particularly NAFTA (as discussed here and here).
(Via Instapundit).
Posted at 6:32 AM