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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