Talk of this judgment creating a “constitutional crisis” are overdone. But I do think Miller is wrongly decided, and problematic. What’s gone wrong is that a heady mixture of two fashionable interpretative doctrines brewed at home by British judges – the idea that there are higher “constitutional” statutes and what’s called the “principle of legality” – on top of some confusion about the nature of EU rights created by the European Communities Act has led judges, in the end, to strain the Act’s meaning well beyond what Parliament can seriously have intended either in 1972, or at any time since.
The court’s reasoning seems to me much thinner, when re-read, than it appears on the impressively coherent surface. Paragraph 93, for instance, which enumerates the textual reasons the courts says support what ought actually to be (according to the principle of legality) a non-textual approach departing from natural statutory language, is a weak list and suspiciously overdetermined. But the consequences of the judgment are worrying. The judgment raises such alarming prospects as that all previous amendments of EU treaties, which have surely affected UK law in the same way the court says art. 50 notification would, have been unlawful.
I’d like to think the Supreme Court will reverse this, but based on its enthusiasm for the “principle of legality” as shown in the Evans case, I doubt it. I worry about where we’re headed. The principle of legality may today seem a useful sword against government; but tomorrow it can cut Parliament just as deep, and no doubt will. I already mourn the relatively sensible framework of EU and human rights law our courts have been used to, and fear constitutional trouble ahead when it’s gone and common law ideas develop further, to replace it.
Carl Gardner is a former government lawyer and current writer at Head of Legal.
Click here for further analysis of the Miller case.