Tag: Miller v Secretary of State for Exiting the European Union
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Roger Masterman: Reasserting/Reappraising Dualism
Dualism is considered a staple characteristic of the UK’s constitutional order. Recognised as a necessary derivative of the concept of parliamentary sovereignty, the notion of dualism is ‘based on the proposition that international law and domestic law operate in independent spheres’ and that interaction between those spheres is formally contingent – in the forum of…
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Nicholas Kilford: The Supremacy of Retained EU Law: ‘We’re Lost, But We’re Making Good Time!’
The UK’s departure from the EU was marked, at least in legal terms, by a curious combination of change and continuity. One key issue ripe for change was the principle of the supremacy of EU law. Vote Leave argued before the referendum that this principle ‘stops the British public from being able to vote out…
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Adam Perry: Enforcing Principles, Enforcing Conventions
Did the UK Supreme Court enforce a constitutional convention in Miller (No 2)? Most writers say no. I say yes. Miller (No 2) I won’t go through the case in detail. For my purposes three points matter. First, the UKSC says that there is a constitutional ‘principle of Parliamentary accountability’. It gives three examples of…
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Tanzil Chowdhury: Miller (No 2), the Principle-isation of Ministerial Accountability and Military Deployments
Has the court in Miller (No 2) done the very thing it said it wouldn’t do in Miller (No 1)? Has it given legal enforceability to the constitutional convention of ministerial accountability? Several authors appear to suggest that is has (here, here and here). Indeed, conventions were given rather peculiar judicial treatment in Miller (No…
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Daniel Halberstam: EU Brexit Litigation: A Short Guide to the Perplexed
Given Boris Johnson’s explicit vow that he’d rather “be dead in a ditch” than ask Brussels for an extension, and his consiglieri’s statement that the government would “scupper” any extension by refusing to negotiate because the “duty of sincere cooperation will be down the toilet,” one might be forgiven for thinking that the Government’s strategy—despite…
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Michael Detmold: The Monarch in the Room
(Let’s be clear. Why is an Australian constitutional lawyer writing about the UK Constitution? It’s simple. She’s our Queen, too.) The Court in Miller/Cherry (at 35) distinguished between the question ‘whether a prerogative power exists’ and ‘whether, granted that a prerogative power exists, and that it has been exercised within its limits, the exercise of…
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Simon Lee: The Supremes’ Seventh: Dominant or Diminished?
Seven points about the Supreme Court judgment in Miller II/Cherry are in danger of being missed amidst the political noise. The tone of our reception of the Justices’ seventh paragraph, in particular, could determine whether there is any way of finding constitutional harmony in our democracy. First, Tuesday’s summary of the unanimous, unambiguous, unequivocal and powerful judgment…
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Michael Detmold: The Unconstitutional Brexit Letter
1. Responsible Government Parliament is an institution of responsible government. The essence of the common law principle of responsible government is the constitution of a regime of confidence: a government is required to carry the confidence of Parliament. This is the fundamental connexion of the executive (the Government) to the Parliament. The European Union (Withdrawal)…
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Stephen Tierney: Prorogation and the Courts: A Question of Sovereignty
The request made by the Privy Council that the Queen prorogue Parliament was a clumsy and inappropriate attempt to shorten the time available for parliamentary scrutiny of the Brexit process. That much seems clear from papers submitted to the Court of Session in Cherry. It is therefore no surprise that the Inner House was receptive…
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Ewan McGaughey: Is There a ‘Legal Measure’ to Judge Parliament’s Prorogration?
A central theme of the High Court judgment in Miller v Prime Minister is that there is ‘no legal measure by which the court could form a proper judgment on’ the matter of whether prorogation was excessive to prepare for the Queen’s Speech (at [56]). It was also said to be ‘impossible for the court…