Christopher Forsyth: Miller: Was it a draw?

Christopher Forsyth: Miller: Was it a draw?

Although the headlines record that the government lost the Brexit judicial review in the Supreme Court, in fact it might be more accurate to see the result as a draw. While the government lost on the question of whether the prerogative could be used to trigger article...

Sir Stephen Laws: Questioning Parliament in the courts?

The judgment‘s conclusions on the Sewel convention are welcome. Enacting the convention for Scotland had been risky. Would the courts construe it with an irrebuttable presumption of an intention to produce something legally enforceable? It is good that the Supreme...

Timothy Endicott: A treaty of paramount importance

The reasoning of the majority of the UK Supreme Court is undermined by Lord Reed’s rather beautiful explanation of the European Communities Act ([183]-[187], [197]). But at least the majority decision is not based on the mere fallacy in the argument for the claimants...

Carl Gardner: A Heady, Worrying Brew of Doctrines

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...

Simon Lee: On Appearances and Disappearances

If ever there is a case for interested ‘third’ parties to appear, or at least intervene through written submissions, now is the time for Professor John Finnis, the Judicial Power Project and other constitutional experts to present their views. It will then be for the...

Alison Young: Miller and Constitutional Adjudication

I can understand the reaction that Miller is an example of ‘judicial activism’. The High Court did not adopt a narrow interpretation of earlier case law on the relationship between prerogative powers and legislation. Instead it interpreted earlier cases as...

Stanley Brodie QC: Miller: Pointless and Futile

The decision of the Court, and the case itself, in Miller v Secretary of State, seems pointless and futile. It may be hailed as a great victory: but it is nothing of the sort. The Brexit process can, and will, continue uninterrupted. All that the Court has decided is...

Graham Gee: Mixing the Old and the New in Miller

Irrespective of whether you agree with the judgment – and, for many of the reasons detailed by other contributors, I regard it as mistaken – there is something slightly quizzical about how the High Court answered the question before it. As Aileen McHarg noted, the...

John Finnis: “Intent of Parliament” Unsoundly Constructed

The judgment’s basic thesis: the ECA’s requirement that no new EU treaty-based obligations and rights be introduced into UK law without “Parliamentary control” implies a “converse intent that the Crown should not be able, by exercise of its prerogative powers, to make...

Panel Discussion of Judicial Power and Brexit

COMMENTS FROM PROFESSOR RICHARD EKINS Professor Richard Ekins participated in Policy Exchange’s panel on Brexit and Judicial Power. Read his paper here. COMMENTS FROM DR GUNNAR BECK Dr Gunnar Beck participated in Policy Exchange’s panel on Brexit and...