Brexit, sovereignty, and the contemporary British constitution: Four perspectives on Miller

To say that the Miller case has stimulated a wide-ranging constitutional debate would be to engage in rash understatement. The pages of the UK Constitutional Law Association Blog, in particular, are replete with posts that examine the issues raised by the case from a rich variety of perspectives and which advance a broad spectrum of views. As the debate has progressed, I have increasingly found myself wondering why the questions raised by the case have invited such strongly contrasting answers from those who have contributed to the discussion. Indeed, a particularly striking feature of the debate is the way in … Continue reading Brexit, sovereignty, and the contemporary British constitution: Four perspectives on Miller

1,000 words The Miller case in the Supreme Court: The key arguments

The decision of the Supreme Court in Miller — in which the UK Government will ask the Supreme Court to rule that the Article 50 process for withdrawing from the EU can be initiated without parliamentary involvement — may have significant consequences for how Brexit unfolds. But the Court is certainly not being asked to rule upon the wisdom of Brexit. What, then, are the legal issues that the Court is being asked to determine? The Government wishes to trigger Article 50 using the Crown’s ‘prerogative’, or inherent, power to conduct the foreign relations of the UK. However, the claimant … Continue reading 1,000 words The Miller case in the Supreme Court: The key arguments

Article 50, the royal prerogative, and the European Parliamentary Elections Act 2002

It has been argued by some that the European Parliamentary Elections Act 2002 (‘EPEA’) may present a particular obstacle to the use of the prerogative for the purpose of initiating the Article 50 process by which the UK will exit the EU. The argument concerning the EPEA essentially takes the form of a riposte to those who contend that the way in which the European Communities Act 1972 (‘ECA’) works means that it presents no obstacle to triggering Article 50 TEU using prerogative power. Even — it is said — if the ECA argument works, it founders when the EPEA … Continue reading Article 50, the royal prerogative, and the European Parliamentary Elections Act 2002

‘Brexit in the High Court’ — BBC Radio 4, Law in Action, 8 November 2016

Following the judgment of the High Court in R (Miller) v Secretary of State for Exiting the European Union (about which I have written briefly here, and in more detail, with Hayley Hooper, here), this week’s edition of BBC Radio 4’s Law in Action examines the implications of the decision and broader questions about the next steps that are likely to taken in relation to Brexit. The programme was recorded in Trinity College, Cambridge, a few days ago. During the programme, presenter Joshua Rozenberg, my colleague Professor Catharine Barnard and I discuss a range of Brexit-related matters, including the significance of the Miller judgment, the prospects for … Continue reading ‘Brexit in the High Court’ — BBC Radio 4, Law in Action, 8 November 2016

Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union

By Mark Elliott and Hayley J Hooper The judgment of the High Court in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), decided on 3 November 2016, has been subjected to astonishing and wholly misguided criticism by politicians and the press. Let us be clear, then, at the outset of this post that we entertain no doubt whatever about the constitutional appropriateness of the Court ruling on the question that was put to it in Miller. The question for the court was solely a legal question about the extent of executive authority. It was … Continue reading Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union

Courts, democracy and Brexit: Some home truths

There are three aspects of the High Court’s ruling in Miller — the implication of which is that Article 50 cannot be triggered without an Act of Parliament — that are significant. The first is whether the High Court was right as a matter of law. I have already written briefly about the legal merits of the judgment, and will comment further on that — in a piece I am writing with a colleague — in due course. The second is the political implications of the judgment for the future of the Brexit process, assuming it is not overturned by … Continue reading Courts, democracy and Brexit: Some home truths

The High Court’s judgment in Miller: A brief comment

The following short comment on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) was published on the Judicial Power Project’s website and is reproduced here with permission. The piece is part of a collection of short commentaries published by the Judicial Power Project; the full collection can be accessed here. I will be publishing a more detailed piece on Miller in due course.  Some of today’s press coverage of the judgment in Miller, accusing judges of acting undemocratically, is deplorable. It is entirely right and proper that the Court should determine the legal … Continue reading The High Court’s judgment in Miller: A brief comment