Miller reorientates our attention: away from the relationship between judicial and legislative power towards the relationship between the legislature and the executive. It reminds us of the importance of events preceding 1688, and the fact that many constitutional principles were forged in the contest between Parliament and the Crown. The most fundamental of these is, the Court confirms, the sovereignty of Parliament. The authority for this is Dicey. There is no hint (of the kind seen in Jackson v Attorney-General, and popular among academics) that legislative power is, in fact, constrained. The sovereign Parliament can make and unmake any law it wants, and so can empower the Crown to abrogate rights created by statute, or curtail the prerogative power. In order to determine whether Parliament has done so, we must ascertain its intention, which is portrayed as a real and useful thing (eg. ).
So stated, the judgment seems fairly orthodox. Yet, the decision (re)opens other fault-lines.
Some say that the High Court upheld the rule of law; others that it undermined it. This seems further proof of that concept’s ability to be all things to all people. I tend to be sceptical of references to the rule of law – yet there does seem to be a real rule of law issue here. Judicial opinions ought to be scrutinised, frankly and fearlessly. If the judges got it wrong, we ought to say so (and I express no view as to whether they did). There are also many good reasons why judicial power ought to be constrained. However, judges should not be attacked for deciding a case that is properly justiciable in a way with which the “people” do not agree. Whatever it may entail, the rule of law constrains the people’s will as well as that of government – as the Court suggests at .
Miller (and Brexit) raise important questions, of interest in many jurisdictions (including Australia). What are the merits of giving the people a direct say on matters of fundamental public importance? Is this compatible with traditional Anglo-Australian understandings of representative democracy? How can popular votes be accommodated within existing constitutional frameworks? How might they be designed to minimise uncertainty, and fall-out? Though the Court in Miller seems to endorse a series of foundational principles that flow from the British constitutional settlement, much else is far from settled.
Dr Lisa Burton Crawford is Lecturer at the Faculty of Law, Monash University.
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