Comment on R (Miller) v. Secretary of State for Exiting the European Union  UKSC 5,  2 W. L. R. 583
13 Pages Posted: 11 Jul 2017
Date Written: July 7, 2017
This contribution will focus on one of the two main issues in the UK Supreme Court’s Miller Judgment; that of the prerogative powers of the executive under the constitution and in particular their relationship to domestic EU legislation and the European Communities Act 1972 (ECA) in particular (the other main issue being the devolution questions). It provides a brief summary of the relevant rules regulating the prerogative considered in the case along with how they were applied by the UKSC, arguing that the contorted logic of the majority in the case in applying the common law rules regulating the exercise of the prerogative are evidence that they were not the real grounds upon which the case was decided. Rather, the substantive reasons for the majority finding that the government lacked the constitutional authority to give Art. 50 notification in the absence of statutory authority was the newly minted principle of major constitutional change by legislation, based on the unique circumstances surrounding the reception and effect of EU law on the UK constitution.
Keywords: Prerogative Powers, UK Constitutional Law, EU Law, European Communities Act 1972
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