Would Brexit have gone ahead by now if Gina Miller had not forced the Government to involve Parliament?

Question

Background (from Wikipedia):

In June 2016, in the aftermath of the United Kingdom European Union membership referendum, [Gina] Miller privately engaged the City of London law firm Mishcon de Reya to challenge the authority of the British Government to invoke Article 50 of the Treaty on European Union using prerogative powers, arguing that only Parliament can take away rights that Parliament has granted.

On 3 November 2016, the High Court of Justice ruled that Parliament had to legislate before the Government could invoke Article 50.

If Miller hadn't done this, would May's deal (or something else) have rolled through, and the whole sorry mess be over by now?

Answer 1

Gina Miller's case has not changed the current situation at all, as the changes required to British law to enact Brexit require acts of Parliament, and always did. Gina Miller's case was solely about whether the government could enact Article 50 without an act of Parliament though executive powers, not about the subsequent process.

Answer 2

What Moo has said is basically based on the UK dualism doctrine, in which the government cannot change laws without Parliament's' approval, even though the government could enter/break foreign treaties by itself.

Since the Constitutional Reform and Governance Act 2010 however, the Parliament is (in theory) even capable of blocking treaties that don't require any internal laws to enact them. Insofar they have not done this. More details are provided in this this answer.

So Commons could have used the procedure spelled out in the 2010 Act to block article 50 invocation indefinitely and likewise for any Withdrawal Agreement, even (in the counterfactual scenario) in which these entailed no changes whatsoever to domestic UK laws.

Of course, what happens (and happened with Theresa May) in practice is that the Prime Minister effectively loses the majority's confidence after repeatedly butting against them, and resigns or is force out by a vote either in Commons or in their own party.

Answer 3

The reason Brexit is a "whole sorry mess" is not because of Miller, it's because Brexit is a highly complicated, controversial, contentious issue and we still have no specific objective agreed among Leavers (what Brexit should look like), let alone among Leave and Remain, all these months/years later.

Miller 'merely' confirmed what should have already been known to all concerned: that Government may not change domestic law unless so authorised by statute (Parliament-made legislation). The referendum legislation and result did not give the Government such authorisation. The Government may have intended to proceed without authorisation but had no legal right to do so - if they had proceeded without Parliament's authorisation they would have committed a constitutional wrong. If Miller did prevent the Government from committing a constitutional wrong, Miller is hardly at fault for the consequences.

We can only speculate what would have happened without Miller, although I think we can be reasonably certain that Parliament would have involved itself if Miller hadn't happened. That said, Miller is useful support, useful ammunition - it's powerful to have judgments from the High Court and then Supreme Court on your side, even though they don't say anything new about the constitution. Likewise, for some people it's a convenient fiction that Miller is to blame. They may even believe that.

But Miller did not give Parliament a new power. Nor did the judgments prescribe a process beyond saying 'our constitution says the Government must seek authorisation from Parliament to change domestic law' (I paraphrase). There's nothing in the High Court or Supreme Court judgments about "meaningful votes" and whatnot - that wasn't what the case was about. The judges didn't say Parliament must debate this in dozens of stages for nearly a year. They said, "For the reasons we have set out, we hold that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

The European Union (Notification of Withdrawal) Act 2017 is the result of that.

The European Union (Withdrawal) Act 2018, the legislation that has led to the meaningful votes etc, was originally drafted by Government and subsequently amended by Parliament during a series of debates and committee hearings because of Government and Parliament's choices. You can read the progress of the-then Withdrawal Bill at https://services.parliament.uk/bills/2017-19/europeanunionwithdrawal/stages.html.

It would have been constitutionally OK for Parliament to give the Government carte blanche with regard to Brexit immediately after Miller or any time since. It has not done so. Why not? Because whether Leave or Remain the majority of Parliamentarians want a say.

It may be helpful to compare/contrast this affair with the European Communities membership referendum of 1975. The Government and EC member states had previously negotiated and agreed in principle the new conditions of the UK's continued membership. The agreement with the EC was ready to be signed and its terms had been approved by Parliament. The referendum legislation bound the Government to act on the result - remain or leave. It was such that no further legislation was required to act on the result whatever it was. In the light of the past few years that looks like the model for how such things should be done.

Answer 4

Moo has the right facts but comes to the wrong conclusion.

If it were not for Gina Miller then the government would not have had to pass legislation in order to trigger Article 50. It was the requirement for legislation that forced the government to offer a "meaningful vote" on the final deal. The Lords then further amended it to ensure that the motion for the meaningful vote was also amendable.

https://en.wikipedia.org/wiki/Parliamentary_votes_on_Brexit

The specific reasoning that forced the need for a meaningful vote was that the prior Act autorizing the referendum was not adequate to authorize the triggering of Article 50 as well. It did not mention Article 50 and there was little to no debate about the leaving procedure before it was passed. The same logic also applied to the legislation passing the Withdrawal Agreement into law, although in that case the government did not argue the point having already lost twice (second time on appeal) in court.

The Lord ensured that the vote on the Withdrawal Agreement (the "deal") could itself be amended too. If no amendments had been possible then the government could have presented it as "take it or leave it", with the threat of crashing out with no deal hanging over MPs. By being able to amend the Act Parliament was able to reject it and propose an alternative way forward, which turned out to be asking the EU for an extension to Article 50.

Timeline:

June 2016: Questions are raised by academics and legal experts as to if the government needs an Act to leave the EU. The government responded that it thought it did not, and could use prerogative powers instead.

July 2016: Gina Miller files her complaint.

October 2016: Hearing begins, government argues that the 2015 Act setting up the referendum knew of the Article 50 procedure and effectively authorized it.

November 2016: The court sides with Miller and holds that the government has no power to trigger Article 50 without a further Act. The reasoning given is that the prior legislation could not reasonably be considered to have authorized any and all future actions on the matter.

January 2017: As a result of the ruling the government introduces the European Union (Notification of Withdrawal) Act 2017. Due to the Miller ruling the government is forced to concede that both the triggering of Article 50 and the final deal should be put to Parliament.