Editor’s Note: Policy Exchange’s Judicial Power Project invited leading academics and practitioners to offer short comments on the Supreme Court’s decision on Article 50 in R(Miller and Dos Santos) v Secretary of State for Exiting the EU. We sought contributions from commentators with a range of views; some might be expected to be sympathetic to the Project’s central concerns, and others less so.


A treaty of paramount importance

Timothy Endicott

The reasoning of the majority of the UK Supreme Court is undermined by Lord Reed’s rather beautiful explanation of the European Communities Act… Read more

The Miller Majority: Reliant on European Perspectives and Counsel’s Failings

John Finnis

The European Communities Act 1972 was visibly crafted in every detail for a precise political-constitutional purpose, ignored by the Miller majority… Read more

The “principle of legality” is out of control

Carl Gardner

“The fact that a statute says nothing about a particular topic can rarely, if ever, justify inferring a fundamental change in the law… Read more

Constitutional adjudication in a mixed constitution

Aileen McHarg

Perhaps the most challenging aspect of the Miller case was how to navigate the judicial role in a complex constitutional environment which is only partially regulated by law… Read more

Questioning Parliament in the courts?

Sir Stephen Laws

The judgment‘s conclusions on the Sewel convention are welcome. Enacting the convention for Scotland had been risky… Read more

Miller: Was it a draw?

Christopher Forsyth

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… Read more

The novelty of Miller: An Australian perspective

Lisa Burton Crawford

Like the decision of the High Court before it, the majority judgment begins by reciting a set of orthodox constitutional principles… Read more

Circular reasoning in the Supreme Court’s Miller decision

Nicholas Aroney

‘[A]t some risk of over-simplifying,’ Lord Hughes said in his dissenting judgment in the Miller case, the main question for decision centred on two well-accepted constitutional rules… Read more

Miller: Maintaining the delicate divide between law and politics?

Alison Young

In Miller, the Supreme Court touched on the difficult divide between ‘law’ and ‘politics’… Read more

Brexit, article 50 and asking a different question

Janet McLean

Article 50 (1) of the Treaty of the European Union states that “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements… Read more

Taking the principle of legality too far

Mikołaj Barczentewicz

The majority of the Supreme Court in Miller decided to uphold the High Court judgment… Read more