Sir Jeffrey Jowell QC and Naina Patel: Miller Is Right

UK Constitutional Law Association

jowell-patelEven those of us who question the notion of absolute parliamentary sovereignty (eg. whether it should trump the rule of law in extreme situations such as the abolition of judicial review) wholly subscribe to the view that parliament, not the executive, should make or unmake our domestic laws.

In the case of R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), therefore, it seems plain that that in principle the prerogative power should not displace the power of parliament to trigger our withdrawal from the European Union (“EU”). Yet some of our respected colleagues writing on this website contend otherwise, drawing for analogy upon areas as remote from the Miller context as double tax agreements and the decision to exile the inhabitants of the Chagos Islands. Others are seeking to throw doubt on the Divisional Court’s judgment in Miller by questioning one of the…

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Albert Weale: The Constitution of Democracy and the Pretensions of the Plebiscite

UK Constitutional Law Association

albert-wealeWhen the UK’s High Court rendered its decision on whether the government could trigger Article 50 of the Lisbon Treaty under the royal prerogative to initiate the UK leaving the European Union, it released a storm of abuse against the judiciary in the press and among cabinet ministers.  ‘Enemies of the people’ snorted the Daily Mail; ‘The judges versus the people’ growled the Daily Telegraph.  These were the crudest examples. Yet, for all that,  they are representative of the Brexiteers’ critique.  Had not the people spoken on 23 June and decided the issue by a majority in a referendum?  How then, it was urged, could a group of unelected judges interpose themselves between the will of the people and the realisation of that will in policy?

For anyone who bothered to follow the issues in detail and read the judgement, the reality was, of course, quite otherwise.  That…

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Keith Ewing: A Review of the Miller Decision

UK Constitutional Law Association

keith-ewingI

Shortly after the referendum on 23 June, demands were made that continuing EU membership should now be considered by Parliament, with a view it seems to stop BREXIT happening, and to frustrate the will of the 17 million who voted to leave.  Indeed, the Guardian carried an article only five days later on ‘How we can stop Brexit – lobby our MPs’ (29 June 2016), no doubt as inflammatory and unacceptable to the BREXITEERS as subsequent developments have been to the REMAINERS. Fearing that Parliament was being enlisted with an agenda to defeat the referendum result, it is not surprising that the BREXITEERS should wish to exclude Parliament from the process altogether.

Even better if they could find legal authority to implement the referendum result that would not require Parliament’s formal input until much later in the process. So we discover only 12 days after the referendum that ministers…

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David Feldman: Brexit, the Royal Prerogative, and Parliamentary Sovereignty

UK Constitutional Law Association

David FeldmanThe issues in Miller

In R. (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) judges had to decide, as a matter of law, on the constitutionally correct procedure for deciding whether and when to notify the President of the European Council that the UK intends to leave the EU, pursuant to Article 50 of the Treaty on European Union.  This legal question is fraught with difficulty.  The situation is unprecedented, so judges have to answer the question from constitutional first principles.  Inevitably in such cases there is room for disagreement as to what the first principles are, and (more intractably) what weight each has as against the others in the particular circumstances of the case.

In Miller, the Divisional Court identified the principles as being (1) that the Queen in Parliament may make or unmake any law by way of an Act of…

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Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer

UK Constitutional Law Association

richard-langI’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the parties at least were in agreement on the point after all: it is not (they say) reversible: R (Miller) v Secretary of State for Exiting the EU, para 10 (hereinafter “Miller”).  However, I believe that there is a far simpler, and so far as I can see compulsory, route from the Supreme Court to Luxembourg in this matter, assuming that the Crown does indeed appeal today’s ruling to that court, and that is that (a) the case turns on the interpretation of the phrase “in accordance with its own constitutional requirements” from…

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Jeff King: What Next? Legislative Authority for Triggering Article 50

UK Constitutional Law Association

Jeff KingThe High Court judgment in Miller v Secretary of State for Exiting the European Union last Thursday made it clear that an Act of Parliament is required for a notice under article 50(2) of the Treaty of the European Union. My view is that an appeal is unlikely to be successful, but on any view we must be prepared for that outcome. The Government and Opposition should consider the form of such an Act without delay. So far, there has been little discussion about what form such legislation might take. This post seeks to begin that discussion, suggesting form, content and conditions that neither challenge the result of the 23 June 2016 referendum nor the Government’s stated timelines for giving notice.

The Form of Legislation

Bringing forward the Great Repeal Bill and trying to pass it before 31 March 2017 would be an awful idea, because it would embroil the…

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