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

This essay critically evaluates the Miller v Secretary of State for Exiting the European Union case, discussing the legal issues, judicial responsibility, and aftermath of the case. It examines the level of judicial responsibility of the Supreme Court in this case and introspects over the constitutionality of the judgement as far as the concept of the sovereignty of the Parliament is concerned.

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.

power was to be applied for triggering withdrawal from the treaties. The ground which was
applied as base was that ‘Great Repeal Bill’ would repeal the 1972 Act. Moreover, the courts
cannot initiate on the presumption that a bill is going to be proposed and will become law in
future and to take decision on the basis on same law as it stands.
Legal Issue 2
Another main issue was ‘devolution issue’ which raised the question that whether acceptance
of devolved institution would be compulsory before providing the notice of leaving EU
legally7.
Decision:
The judgement provided in the Miller case assets that UK withdrawal from EU can be
initiated without providing reference to Parliament. Further, it was claimed by Mr. Eadie
Queen’s Counsel that the Act of 1972 did not rule out the application of prerogative power
and the same could indeed ‘modify domestic law’. Furthermore, it was stated that the Act of
1972 had stipulated in case it decided to surrender the same. It was also argued that the main
objective of Parliament through by the virtue of doing away to mention the power to
withdraw was to remove the prerogative power without applying them.
Aftermath of the case
The reason on the basis it can be stated that Supreme Court did not made an appropriate
judgment in the case of Miller as it is believed that the decision is nothing but orthodox in its
strong affirmation of parliamentary sovereignty8. Further, the decision made was free from
the sceptical perspectives relating to parliamentary sovereignty which cropped up with time.
Moreover, it is not possible that government will use Royal Prerogative powers without
approval of Parliament which is sovereign. The following parts of the essay would present a
7 Sebastian Payne. "The Supreme Court and the Miller Case: More Reasons Why the
UK Needs a Written Constitution." (The Round Table 107.4 2018) Pp 441-450.
8 Mark A Pollack. Policy-making in the European Union. (Oxford University Press,
USA, 2015).

detail discussion of each perspective of the case in order to assess that whether Supreme
Court exercised its judicial responsibility in appropriate manner or not.
THE CONCEPT OF JUDICIAL RESPONSIBILITY
Nature of judicial responsibility
It is the responsibility of judge to comply with the principle of democracy in order to make
appropriate decision regarding every case9. The principle of democracy comprises two most
essential elements i.e. separation of powers and independence of judiciary. Thus, courts are
responsible for making decision relating to guilt and innocence and the High Court is
responsible for ascertaining whether law or action of government is constitutional or not. It
also implies natural justice as far as equity and fairness are concerned.
The rule of law
“The basic principle of unwritten constitution is based on the idea that law must be executed
in a fair manner that is equal for all, rulers and ruled identically” as implied from the Magna
Carta signed by King John II in 1215. The Bill of Rights was passed in 1689 by the
Parliament of England in order to uphold the doctrine of the rule of law as far as the Glorious
Revolution of 1688 is concerned. The same implies that it should be ‘government of law’
and not the ‘government of men’10. Here this phrase is used to explain that the rule of law is
non-partisan principle which brings harmony and bridges them across the political partition,
assisting to make a reasonable and fair community. Further, the important feature of it is that
this restricts the exercise of executive acts, certifying that ministers are performing according
to their legal power. Such a concept also implies equality before the law of the land as far as
prevention of discrimination on various grounds is concerned. However, the exception to this
concept is the aspects related to positive discrimination thereby implying the upliftment of
those people who were previously subjected to derogatory treatment to a considerable extent
9 Richard Gee Ekins. "Putting judicial power in its place." (U. Queensland LJ 36 2017)
Pp 375.
10 Shaheed Fatima. "Courts, Legitimacy and the Rule of Law." (Israel Law Review 50.3
2017) Pp389-445.

as they belonged to a certain category. The concept of the rule of law is also intended to
uphold the basic human rights and civil liberties of each and every person thereby
guaranteeing them with the appropriate privileges as far as their protection related to safety
and security are concerned. The eminent English jurist and scholar Albert Venn Dicey has
asserted that the concept of the rule of law and the sovereignty of the parliament are the two
main elements governing the constitutional aspect of the United Kingdom. The European
Convention of Human Rights along with the Human Rights Act of 1998 have played an
extremely important role off late with regard to the elucidation upon the concept of the rule of
law.
Separation of Powers
“The main legislative objective is to provide final and decisive decision”. In order to have
implications regarding the same, the judgement made by Supreme Court seems to violate the
doctrine of separation of power. It was also assessed that in case Parliament perceives the
Executive in order to modify citizen’s right under 1972 act without its approval, separation
of power and doctrines of parliamentary supremacy would destabilize without due
autonomous process.
It is generally observed in most of the countries that there is a written constitution. But, in
UK there is no written constitution in terms of single rational code of fundamental law i.e. the
one which can be stated over all other sources of law11. It has been specified in the heart of
unwritten constitution is the separation of powers policy; which emphasizes on the principal
institutions of the state that are the executive government, parliament as well as the courts
comply various functions to protect liberties and guard against dictatorship. Such a
judgement basically implies the non-prevalence of the demarcation between the Parliament
and judiciary as far as exercising of the appropriate powers is concerned which is in extreme
contrast of the concept of separation of powers prevalent in the United Kingdom.
Distribution of Power
11 Venkat Iyer. "Separation of Powers: The UK Experience." J. (Int'l & Comp. L. 5
2018) Pp 507.

“It is necessary to acknowledge and sustain the balance between respective rules of
Parliament, the Executive and the court”12. As divisional court has viewed the matter in
binary manner and argued that it is not appropriate to access the matter of Miller’s case by
making simple choice between prerogative power and parliamentary sovereignty. As a result,
it is necessary to allocate appropriate discretionary powers to the Parliament, the Executive
and the court thereby implying non-transgression into each of their modus operandi by each
of them.
Manner in which judicial responsibility can be questioned
In present case, the judicial responsibility can be questioned on the grounds that axiomatic
responsibility stating that settlement of disputes has not been exercised in an appropriate
manner. The same is implied from the case in an effective and efficient manner. Further, the
majority decision relating to unavailability of prerogative powers turned its view that
significant constitutional modifications can be made only through legislation13. But the
statement does not specify the authority and leads to law a highly imprecise criteria in which
prerogative power is demarcated. Further, the other normative constitutional grounds which
are unarticulated are also not available.
Subsequent to all the sittings of Supreme Court, judges exercise of powers were questioned
relating to devolution issue because an attempt was made to make withdrawal from EU
Treaties through a formal notice without being discussing the matter or agreement of
devolved legislature14.
12 Robert Schütze. European Union Law. (Cambridge University Press, 2015).
13 R. E Ekins. "Constitutional practice and principle in the Article 50 litigation." (Law
Quarterly Review 133 2017).
14 Herman Finer. "Administrative responsibility in democratic government." Classics of
administrative ethics. (Routledge, 2018) Pp 5-26.

REASONING OF THE JUDGES IN MILLER
Discussion of judges reasoning relating to application of prerogative powers by the
government
The constitutional background
The Article 50 specifies that any member of State might make decision to leave from the
Union as per its individual legitimate requirements15.
The Royal prerogative and Treaties
The practice of Royal prerogative to get the UK out from the EU was considered as breach
subsequent to the 1972 Act, it was held that had evacuated the Royal prerogative to get the
UK out of the EU treaties16.
Status and character of the European Communities Act 1972
can be referred as a significant initiative of changing on the direct impact of the EU law in
the state legal system and reasoning was held that the intent of Parliament was that the Crown
must turn it off by practising its prerogative powers17.
Analysis of Divisional Court’s on the effect of the 1972 Act
The failure of Division Court in its responsibility to undertake non- obiter findings on law has
been analysed of the effect of the 1972 Act.
Significance of prerogative power in 1972 Act
15 Sionaidh Douglas‐Scott . "Brexit, article 50 and the contested British
constitution." (The Modern Law Review 79.6 2016) Pp 1019-1040.
16 Alison Young. "R.(Miller) v Secretary of State for exiting the European Union:
thriller or vanilla?." (Cambridge L. Rev. 2 2017) Pp 280-295.
17 David Feldman. "Pulling a Trigger or Starting a Journey? Brexit in the Supreme
Court." The Cambridge Law Journal76.2 (2017): 217-223.

The case of government states that the ACT 1972 does not rule out the use of prerogative
power of ministers to pull out from the EU treaties.
Subsidiary arguments
The arguments agreed with no formal decision that the activity of minister in the lawmaking
process is into affect as per the Royal prerogative.
Conclusion (1972 Act)
The Court concludes that section 2 of the 1972 Act was stated as a conduit pipe, and this
makes the EU law a domestic law source, which can altered if the law is changed by
Parliament. However, the European Parliament has to be consented in order to make such
changes. As a result, such a conclusion drawn by the Supreme Court is not comprehensive.
Legislation and events after 1does not invalidate 1972: from 1973 to 2014
If the legislation unfinished the prerogative power, then it may be restored by that legislation
repeal.
Legislation and events after 1972: the 2015 Act and the referendum
The did not lay down legal outcomes, but some other Acts examples authorized referendums.
Compare and Contrast of above specified reason in relating to prerogative powers
The European Communities Act 1972
The Government is not empowered to make use of prerogative power taking account of
Article 50. It is based on three interlocking arguments concerned with the connection amount
EU and UK law that is European Communities Act 1972 operations (‘ECA’)18.
The amendment of the 1972 Act (EUA 2008, section 2)
Section 2 of the 1972 Act does not put up a power of ministerial for the withdrawal from the
EU Treaties. It provides effect in legal terms to viable t EU law in the UK.
18 Jacob M Nolan. "Was R (Miller) v Secretary of State for Exiting the European Union
Correctly Decided." (ISLRev 4 2016) Pp 38.

Other post-1972 legislation
The other legislation is of secondary significance, states about the Parliament based on
legislation that there was no restriction of prerogative, and also states that Parliament is able
to clarify its intention to limit the prerogative exercise.
Using the prerogative to alter the law, or take away statutory rights?
The statutory rights are not created under the 1972 act in the similar sense and the prerogative
is not able to do law alteration or deprivation of the citizen rights.
Using the prerogative to revoke a source of law?
The status of the European Union institutions as a law sources would be revoked and the
same will be an essential alterations, which can be only done by the Act.
The analogy with the De Keyser case
The analogy tends to be misplaced without alteration in the basic governing rule that is for
the recognition of sources of law, thereby resulting in EU membership.
Ex p Rees-Mogg
Lord Reid certified the grounds of the court in that states that prerogative is bind by
implying curtailment.
What if there had been no referendum, or a vote to remain?
The judges reasoning relating to devolution
The legislative consent motions have been passed by devolved legislatures, at the time when
Parliament of UK has legislated on situations which decreased in the parliamentary ability of
devolved legislature, also at the time when the Parliament has established provision that in a
direct manner do the alteration of the legislative competence of the devolved disclosure19.
19 Barnard, C. "Law and Brexit." (Oxford Review of Economic Policy 33.suppl_1 2017)
Pp S4-S11.

The Sewel Convention implies that a motion is passed by the Scottish Parliament implying
that the Parlaiment of UK can pass a statute as far as devolution is concerned. Similar suit can
be followed by the Welsh Assembly and Northern Ireland Assembly.
The Lord Reed and the judges accepted with most of the issues of devolution, the changes of
reconsidering the judgement which has not been described, yet he stated no view, and there
are controls over politics like ministerial accountability to Parliament20.
Majority and Lord Reed approved that the section 2(1) provided effect to the EU law body of
differing content, and the Act scheme being to allow state law to minor law. Thereby, the of
EU legislation done with amendment, enactment and replacement, therefore the body of
rights effected by section 2(1) alters21. On the other hand, not like the majority, the Lord Reed
was all set by retaining that the ECA can lodge a situation wherein by withdrawal dint, the
EU law body declines and effect as non-existent. Lord Reed stated that there is no basis
present in the 1972 Act language for the draw of difference among distinction the EU law
content taking place from reformed EU legislation and result of changes from the
abandonment made by UK from the EU22. In contrary to this, the conclusion has drawn by
majority that at the same time Act can lodge changes to EU law by the institution of EU or by
the treaty variation; it cannot lodge the changes of inclusive withdrawal.
JUDICIAL RESPONSIBILITY AND PREROGATIVE POWERS
Attorney-General v De Keyser's Royal Hotel [1920] AC 508:
20 Christopher McCorkindale, McHarg Aileen and F. Scott Paul. "The courts,
devolution, and constitutional review." (U. Queensland LJ 36 2017) Pp 289.
21 Thomas Poole. "Devotion to legalism: On the Brexit case." (The Modern Law Review 80.4 2017)Pp
696-710.
22 Koen Lenaerts,. "The principle of subsidiarity and the environment in the European
Union: keeping the balance of federalism." European Environmental Law. (Routledge, 2017).
129-178.

Attorney-General v De Keyser's Royal Hotel Limited is a dominant case in the English law
which decision in made by the and it assessed the principles by which the courts make
decision on if or if not the statue has confined prerogative power. This case states that the
constitutional principle is that when the Executive power to interfere with the subject liberty
has been positioned as per the control of Parliament and statue regulates the same directly23.
No longer shall the Executive has the power from the Royal Prerogative but from the side of
Parliament and that in practising such the Executive is forced to inspect the limitation which
are imposed by Parliament on the subject.
R v Secretary of State for Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552:
The Rv Secretary of State for Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552, set out
the legality of the government, while providing sign to the global treaty by which national
laws did not alter and thereby did not hinder in the sovereignty of the Parliament24 contrary to
the judgement delivered in Miller.
R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2
AC 513:
R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC
513 a House of Lords case concerned about how the award of compensation is giver as per
the Criminal Injuries Compensation Scheme25. Further, the case is stated as a very significant
ruling on a scale of the prerogative powers of the Minister in comparison to Miller judgemnt.
Laker Airway v Department of Trade [1977] QB 643:
The prerogative is considered discretionary powers which is exercised by the administrative
government for the welfare of general people, in some aspects of the government activity for
which no provisions are made by the law, for example the prerogative or the treaty
prerogative. In addition, the law do not impede with the clear discretion exercise by the
23 Attorney-General v De Keyser’s Royal Hotel [1920] AC 508
24 R v Secretary of State for Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552
25 R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]
2 AC 513

executive in such scenarios26. However, it can restrict it by stating the bounds, and can
interfere if the exercising of discretion is mistaken or improper this is the basic principle of
the constitution27.
Public Law Project v Lord Chancellor [2016] UKSC 39
The Supreme Court has commonly enabled the appeal of the Public Law Project, present in
the case that assessed the legal terms of the attempt made by the Lord Chancellor to establish
a residence test meant for the civil legal aid by the amendment of the legal aid28.
The majority was set to invoke the tactic constitutional principles in the favour of the
perception that the prerogative can be implemented to impact main changes or eliminate a
law source, the position is executed in regards with the convention is responsible to have the
effect of processing the role that these conventions and generally basic principles animating
them, can have a great role in constitutional adjudication. Thus, the majority is set to allow
those factors to put forth very crucial influence on the provision construction. In addition,
higher consideration is given towards the rule of law as well as separation of powers held in
oppose to the broad executive power to overrule the judgements of the UK constitutional law.
It can be said that principles do not consider out to be more essential than that, and it is surely
the case that the doctrine of sovereignty has significant normative purchase on the questions
regarding the level of prerogative power, use of this power in a manner that would weaken
legislation of Parliament will be incompatible with the supremacy of Parliament.
Lord Reed examined in the Miller, that there are persuasive practical reasons for realizing the
prerogative power to maintain global relations; it is fairly uncontroversial that the treaty-
making prerogative enlarges to the unmaking of treaties. On the other hand, the Miller argued
that the average position had to defer in the situations of the case. Particularly, it was
26 Neil Parpworth. Constitutional and administrative law. (Oxford University Press,
2018).
27 Laker Airway v Department of Trade [1977] QB 643
28 Jarret J Huang. "Miller and Brexit: Prerogatives on Parliament and Public
Law." (Cambridge L. Rev. 2 2017) Pp 129.

acknowledge that it will not be compatible with theca 1972 for the use of prerogative to start
a process whose evade outcomes can be loss to the EU laws rights29.
JUDICIAL RESPONSIBILITY AND DEVOLUTION
Scotland Act 1998, s. 28(7)
The Section 28 (7) of the Scotland Act 1998 is amended by the Act of Parliament , this
section is not able to impact the UK Parliament power to make Scotland laws and protects the
convention that the Parliament of Scotland is long term, established in the constitution and
the is not dissoluble as an institution30.
Scotland Act, s. 28(8)
The Government of UK made an agreement to place convention on the statutory footing; this
has been conducted by the Section 2 of the Scotland Act 2016, which significantly duplicates
the statements in the Memorandum of Understanding considers the amendment of section 28
of the Scotland Act 1998 to contain the new sub-section (8). However, it is held that the UK
Parliament will not usually legislate in context with the devolved matter when there is no
consent of the Parliament of Scotland.
Sewell Convention
The Sewell Convention is applicable when the Parliament of UK considers legislation on a
situation which is usually addressed by the Parliament of Scotland as their duty. As per the
Convention terms this will take place only if the Parliament of Scotland has provided its
consent31. It offers that the Parliament of UK might not consider legislation for the matters
which are devolving in the absence of consent impacted devolved legislature. With the
29 Public Law Project v Lord Chancellor [2016] UKSC 39
30 Alan Page. "‘Scotland in the United Kingdom: An Enduring Settlement’?." (Claims
for Secession and Federalism. Springer, Cham, 2019) Pp 127-138.
31 Nicholas Aroney. "R (Miller) v Secretary of State for Exiting the European Union:
Three Competing Syllogisms." (The Modern Law Review 80.4 2017) Pp 726-745.

introduction of Section 2 of the Scotland Act 2016 the Sewel convention must be placed on a
statutory footing arising to various complex constitutions for the Parliament, government and
court of Scotland and UK32.
H v Lord Advocate [2012] UKSC 24:
This decision states if or if not the appellants was to be transferred, it is due to the basic
nature of constitution on the settlement that was attained by the Acts of Scotland33. Moreover,
this particularly must be held to deliver its incapability of altered if not then by an immediate
enactment34. The provisions of this act are not able to be stated as susceptible to alteration by
implying from some other enactment wherein the purpose is for the alteration of the Scotland
Act is not to establish on the face of the statute35.
HS2 Action Alliance v Sec of State for Transport [2014] UKSC3:
HS2 Action Alliance v Sec of State for Transport [2014] UKSC3 is the law of UK
constitution, concerned with the law conflicts among the state legal system and the EU union
law36. It has been found by the Supreme Court that the UK possesses the instruments of
constitutions that the courts will not understand to be revoked with no close inspection.
32 Sean Swan. "A democratic outrage: Scotland’s constitutional position and
Brexit." (British Politics and Policy at LSE 2017).
33 H v Lord Advocate [2012] UKSC 24
34 Jan Klabbers,. "Constitutionalism lite." Globalization and International Organizations.
Routledge, [2017]. 197-224.
35 Graziella Romeo, and Mostacci Edmondo. "A Br-Exit Strategy: Questioning Dualism in
the Decision R (Miller) v. The Secretary of State for Exiting the European Union." (2017).
36 HS2 Action Alliance v Sec of State for Transport [2014] UKSC3

Miller judgement
The Court raised an argument that if or if not the European Communities Act 1972 which is
generally known as constitutional statute, stating that it is not able to be completely revoked
by other legislation but only when there is presence of express revoke provision is resistant
from having its effect considered by the royal prerogative37. The judgement of the Miller case
initially is to exemplify the statue as a constitutional statue is not relieving the courts of their
responsibility to understand the structural provisions in devolved issue38. Further, the statue
will be always a constitutional statue delivering its immune from implied revoke, if it
situations the legal connection among the nation and citizens in some overarch and general
manner or extents or eliminates the extent of the basic constitutional rights39.
The Supreme Court was undisputed on the issues of devolution. The Supreme Court is highly
liable for the decisions of the cases on the separation of powers among the devolved
institutions within UK and Scotland’s own institutions40.
Academic perspective
Phil Syrpis, Professor of EU Law at the University of Bristol has opined that the Supreme
Court has been intrusive in nature in concluding upon the Miller judgement as far as
encroaching upon the powers of the Parliament is concerned41. Richard Ekins, Associate
Professor at the University of Oxford has stated that the Miller judgment is contrary to the
37 Hobolt B Sara,. "The Brexit vote: a divided nation, a divided continent." Journal of
European Public Policy 23.9 (2016): 1259-1277.
38Farrah Ahmed, and Perry Adam. "Constitutional Statutes." (Oxford Journal of Legal
Studies 37.2 [2017] Pp461-481.
39 Jan Klabbers. "The redundancy of soft law." Sources of International Law. (Routledge,
2017. 189-204.
40 Miller v Secretary of State for Exiting the European Union [2017] UKSC 5

concept of Parliamentary sovereignty thereby being unconstitutional42. According to Alison
Young, Professor of Public Law at the University of Oxford, the Miller judgement serves as
an example of the laying down of constitutional guidelines by the Supreme Court thereby
upholding Parliamentary sovereignty43. Fergal Davis, Reader in Public Law at the Dickinson
Poon School of Law, King’s College London has compared the Miller judgment to the
decision undertaken by King William in 1835 with reference to the dissolution of the Whig
Government as far as Parliamentary sovereignty is concerned44.
41 Tonia Novitz. "Collective bargaining, equality and migration: the journey to and from
Brexit." (Industrial Law Journal 46.1 2017) Pp 109-133.
42 Richard Ekins, "Restoring Parliamentary Democracy." (Cardozo L. Rev. 39 2017)Pp 997.
43 Alison L. Young. "Brexit, Miller, and the Regulation of Treaty Withdrawal: One Step
Forward, Two Steps Back?." (AJIL Unbound 111 2017)Pp. 434-439.
44 Fregal Davis. "Brexit, the Statute of Westminster 1931 and Zombie Parliamentary
Sovereignty." (King's Law Journal 27.3 2016)Pp 344-353.

CONCLUSION
On the basis of above analysis, it can be concluded that, the Supreme Court has cleared its
intentions out that the devolved legislatures have the shortage of legal power to obstruct
Brexit. However, the Court has found that the Parliament of UK does not have the
prerogative power, as it merely can enable trigger of Article 50. The conclusions have been
drawn by Lord Reed that the Case of Proclamations and other related cases have set out the
key principle of sovereignty of Parliament above the domestic law, yet there is no
requirement of Act. It is because when the 1972 Act comes into effect, it was conditional in
an entire manner on the EU Treaties application to the UK and thereby on the membership of
UK of the EU. It was been made clear by the Court that this a precise legal issue and
withdrawal politics or the further relationship of UK with EU cannot be interfered. It can be
said that the position of UK Government, to come into effect with referendum, it is essential
to sanction a wide view of foreign affairs prerogative in regards with the EU law. Thus, the
Miller is one of the most significance constitutional cases, ever seen by the Supreme Court of
the United Kingdom. Similarly, the government needs the power of primary legislation prior
to changing the laws of the constitution of UK as a whole. It is considered as the reminder of
the role of the rule of Law and constitution.

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