Miller v Secretary of State for Exiting the European Union: A Critical Evaluation of Judicial Responsibility

CONSTITUTION LAW
1

Table of Contents
Introduction................................................................................................................................4
Background............................................................................................................................4
Academic Opinions................................................................................................................5
Central Argument...................................................................................................................5
Context and Legal Issue in Miller..............................................................................................5
Historical Background...........................................................................................................5
Context...............................................................................................................................5
The European Referendum Act, s.1 (1).............................................................................6
Article 50 (1) (implemented by EU (Amendment) Act 2008)...............................................6
Legal Issues and decision of the case.....................................................................................6
Aftermath of the case.............................................................................................................7
The concept of judicial responsibility........................................................................................8
Nature of judicial responsibility.............................................................................................8
Manner in which judicial responsibility can be questioned...................................................9
Reasoning of the judges in Miller............................................................................................10
Discussion of judges reasoning relating to application of prerogative powers by the
government...........................................................................................................................10
Compare and Contrast of above specified reason in relating to prerogative powers...........12
The judges reasoning relating to devolution........................................................................13
Judicial responsibility and prerogative powers........................................................................14
Attorney-General v De Keyser's Royal Hotel [1920] AC 508:............................................14
R v Secretary of State for Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552:............15
R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2
AC 513:................................................................................................................................15
Laker Airway v Department of Trade [1977] QB 643:........................................................15

Public Law Project v Lord Chancellor [2016] UKSC 39....................................................16
Judicial responsibility and devolution......................................................................................17
Scotland Act 1998, s. 28(7)..................................................................................................17
Scotland Act, s. 28(8)...........................................................................................................17
Sewell Convention...............................................................................................................17
H v Lord Advocate [2012] UKSC 24:.................................................................................18
HS2 Action Alliance v Sec of State for Transport [2014] UKSC3:....................................18
Miller judgement..................................................................................................................19
Academic perspective..........................................................................................................20
Conclusion................................................................................................................................21
Bibliography.............................................................................................................................22

INTRODUCTION
Background
Miller v Secretary of State for Exiting the European Union [2017] UKSC 5 deals with the
precisely legal question of if or if not the government is empowered to enforce Article 50
with absence of both Houses of Parliament passing the legislation allowing it to do the same
and the royal asset being provided by the Queen1. Further, the case came up to the challenge
position the Government that it can exercise its prerogative powers for issuing notification to
initiate the withdrawal from the EU without any legislation. The judgement is Miller is not
likely to have a considerable impact on the political affairs of UK and its exit from the EU.
The case assessed if or if not it will be feasible for the government to consider a formal notice
for leaving the EU, in an effective manner while providing end to the rights conferred by the
domestic law of UK on the citizens of Britain and thereby setting the Parliament’s legislation
aside.
The high court concluded the decision in favour of the Miller that the government has no
power, when there is no consent by Parliament to trigger the Article 50. The appealing on
decision by government was done and later on 24 January 2016, the Supreme Court of UK
conducted appeal dismissal and upheld High Court’s decision. The engaged parties agreed on
the aspect that when article 50 is invoked, then the notice cannot be then withdrawn,
highlighting the significance of having a pure strategy to enter into negotiations. The present
study is based on the critical evaluation of the Miller case, it will briefly explain its legal
issue in UK while defining concept of judicial responsibility2. The study will also cover the
1 James Bowen. "The Supreme Court's Article 50 Judgment: R (Miller) v Secretary of
State for Exiting the European Union [2017] UKSC 5." (Business Law International 18.2
2017).
2 Summer Woods. "We Kent Keep Transferring Kids without a Hearing: Using Recent
Supreme Court Jurisprudence to Revive Kent v. United States and End Mandatory Transfer
for Juveniles." (Crim. L. Prac. 3 2015) Pp 25.

relation of judicial responsibility and prerogative powers, and judicial responsibility and
devolution, whilst providing the reasoning of judges on the cited case.
Academic Opinions
Professor Mark Elliot of the University of Harvard has opined that the Supreme Court has
undertaken a lackadaisical approach in this case thereby being superficial with reference to
the concept of the sovereignty of the Parliament.
Central Argument
The essay is purported to examine the level of judicial responsibility of the Supreme Court in
this case. It is further intended to introspect over the constitutionality of the judgement as far
as the concept of the sovereignty of the Parliament is concerned.
CONTEXT AND LEGAL ISSUE IN MILLER
Historical Background
Context
The article 50 provides that as per the constitutional needs of at an individual perspective,
member state is allowed to withdraw from the Union3. Further, it is important that the
European Council is informed regarding withdrawal by member state. In accordance with
provision of code of conduct of European Council, the Union must confer and terminate an
agreement with that state, creating the arrangement for its pulling out
The European Referendum Act, s.1 (1)
In accordance with sub-section 1 of section 1 of European Referendum Act 2015, a
referendum is to be held on whether the United Kingdom would stay on the affiliate of
3 Catherine Barnard and Peers Steve Peers. European union law. (Oxford University
Press, 2017).

European Union (EU). In addition to this, the section does not state the process for activation
of Article 50 which can be specified as limitation of specified section4.
Article 50 (1) (implemented by EU (Amendment) Act 2008)
Article 50 (1), specifies that “any member state is capable of taking decision to withdraw
from the Union in accordance with its own legitimate requirement” was the legal challenge to
the government’s authority as it was the base to implement Article 50 of Treaty on EU, i.e.
the initial step in the procedure of separating from EU, is stated broadly as the legitimate case
of the century5. Further, it has been also assessed that media was curious about the decision in
significant extent in comparison to prior similar incidence of United Kingdom.
Legal Issues and decision of the case
Legal Issue 1
The primary issue was to assess that whether it is possible to exit EU under Article 50 of the
treaty. Further, it was a challenge for the court to determine the legal steps required to be
taken to initiate the procedure of leaving.
Prerogative Powers
Prerogative is referred as a power which is unique to sovereign and is also known as royal
prerogative in technical terms. The reason behind same is that the powers belong to Monarch
but they are practised by prime ministers and if required by cabinet members6. The specified
4 Piet Eeckhout and Eleni Frantziou. "Brexit and Article 50 TEU: a constitutionalist
reading." (Common Market Law Review 54.3 2017) Pp 695-733.
5 Gavin Phillipson. "EU Law as an Agent of National Constitutional Change: Miller v
Secretary of State for Exiting the European Union." (Yearbook of European Law 36 2017) Pp
46-93.
6 Federico G. Mancini,. "The making of a constitution for Europe." The new European
community.(Routledge, 2018). 185-202.