Miller, Structural Constitutional Review and the Limits of Prerogative Power
Public Law 2017
43 Pages Posted: 19 Apr 2017
Date Written: April 19, 2017
The Supreme Court in Miller upheld the Divisional Court, and decided that the government could not trigger Article 50 TEU to begin withdrawing from the EU without statutory authorization from Parliament. The result was widely predicted, with the media estimating that the Supreme Court would divide 7-4 in favour of the claimant. This was pretty accurate, given that the ruling turned out to be 8-3. The Miller decision has already achieved its place in the history books, being the most blogged about case in the UK. It is a record that will not easily be broken. The spectre of justice being conducted in media real time becomes the new reality, bearing affinity to the way in which we conduct other areas of life ranging from politics to war. The ratings for the Supreme Court televised hearings may not yet have usurped more traditional TV classics, but reality TV producers will assuredly see the potential of such hearings, although they may struggle to render arguments concerning fallacious constitutional syllogisms appealing to the wider public.
There is much that could be said about the case from a broader political perspective. This article will, however, focus on the issues of UK constitutional law raised by the decision. The case concerned structural constitutional review, in which the Supreme Court demarcated the ambit of legislative and executive power. It is axiomatic, as all students learn in first year constitutional law, that there are limits on prerogative power. Professors regularly intone those limits in lectures, and text writers duly repeat them in their books. A case is of enduring constitutional importance when it forces us to recognize the ambiguities inherent in such oft-repeated axioms. Miller is a hallmark decision as judged by this criterion. I believe that the majority was correct in its interpretation of these constraints, but the result was not simple or self-evident. There was a powerful dissent, most especially from Lord Reed, which has been supported by some weighty academic argument. These counter arguments must be taken seriously, and I do so in the ensuing analysis.
The structure of the article is as follows. The discussion begins with a brief overview of the stages of analysis involved when considering the prerogative. The following sections consider the classic limits on prerogative power, which are that it cannot be used to alter the law of the land, or where it would intrude on the same area as covered by statute. There is analysis of the case law underlying the respective propositions, followed by examination of how the majority and the dissent interpreted these precepts in the Miller case. There is then discussion of the normative values that underpin the limits on prerogative power, and the reasons why such power is accorded to the executive. The focus thereafter shifts to detailed inquiry as to the contending views of the majority and dissent on the ambit of the limitations on prerogative power. The article concludes with consideration of how the Supreme Court treated the claim that the devolved parts of the UK should be entitled to some voice prior to the triggering of Article 50 TEU.
Keywords: prerogative power, judicial review, Brexit, treaties
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