The Supreme Court's Judgment in Miller: In Search of Constitutional Principle

30 Pages Posted: 13 Apr 2017 Last revised: 19 Apr 2017

Mark Elliott

University of Cambridge - Faculty of Law

Date Written: April 13, 2017

Abstract

In R (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the United Kingdom (a) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (b) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority’s analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment’s restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

Keywords: Constitutional Law, European Union Law, European Communities Act 1972, English law, Brexit, royal prerogative, statutory interpretation, constitutional principle, parliamentary sovereignty

JEL Classification: K00, K1, K10, K19, K3, K30, K39

Suggested Citation

Elliott, Mark, The Supreme Court's Judgment in Miller: In Search of Constitutional Principle (April 13, 2017). Cambridge Law Journal, July 2017; University of Cambridge Faculty of Law Research Paper No. 23/2017. Available at SSRN: https://ssrn.com/abstract=2952331

Mark C. Elliott (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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