Constitutional Law 101 Lessons: The Brexit Judgment on the Prerogative in R (Miller) v. Secretary of State for Exiting the European Union.

4 Pages Posted: 5 Nov 2016  

Rory O'Connell

Ulster University - Transitional Justice Institute

Date Written: November 4, 2016

Abstract

This offers an initial reaction to the Brexit judgment in the Miller case decided by the High Court of the United Kingdom. The Miller judgment is an immediate constitutional classic and has generated unprecedented media coverage and political controversy. The paper analyses the judgment's approach. The judges chose to adopt a single judgment as opposed to individual judgments; the judgment is clearly written and for the most part based on conventional legal arguments. At its heart, the judgment rests on the core Diceyan principles of parliamentary sovereignty and the rule of law. It reaffirms the view that prerogative is subordinate to acts of parliament in a system based on parliamentary sovereignty. The judgment explains how the European Communities Act 1972 has displaced the royal prerogative so that the latter cannot be used to trigger the UK's exit from the European Union. The judgment adopts what is sometimes called the 'constitutional rights' approach to statutory interpretation. In sum, the clarity of the judgment, the stature of the judges making it, its unanimity, all make it very difficult for a government appeal to the Supreme Court to succeed. The paper concludes with comments on the implications for similar litigation in Northern Ireland and the possibility that the judgment could entail a constitutional crisis not seen since the 1909-1911 parliamentary crisis.

Keywords: prerogative, rule of law, parliamentary sovereignty

Suggested Citation

O'Connell, Rory, Constitutional Law 101 Lessons: The Brexit Judgment on the Prerogative in R (Miller) v. Secretary of State for Exiting the European Union. (November 4, 2016). Available at SSRN: https://ssrn.com/abstract=2864224 or http://dx.doi.org/10.2139/ssrn.2864224

Rory O'Connell (Contact Author)

Ulster University - Transitional Justice Institute ( email )

Shore Road
Newtownabbey, County Antrim BT37 OQB
Northern Ireland

HOME PAGE: http://www.transitionaljustice.ulster.ac.uk/

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