Miller, structural constitutional review and the limits of prerogative power

Journal article

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.

Authors: Craig, P

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Sweet and Maxwell
• Journal: Public Law
• Publication date: 2017-04-19
• Acceptance date: 2017-04-01
• Keywords: Brexit; prerogative power; treaties; judicial review