Parliament, the People and Interpreting the Law: Miller v Secretary of State for Exiting the European Union
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PARLIAMENT, THE PEOPLE AND INTERPRETING THE LAW:
MILLER V SECRETARY OF STATE FOR EXITING THE
EUROPEAN UNION
PATRICK EMERTON*
LISA BURTON CRAWFORD
In June 2016, a referendum was held in the United Kingdom, asking the people
whether they should remain a member of the European Union, or leave. A majority
voted to leave. The result has sent shockwaves through the UK and the rest of Europe
which continue to reverberate, not least in the High Court of England and Wales's
recent decision in R (Miller) v Secretary of State for Exiting the European Union
('Miller').' In this case, the Court found that the executive government of the United
Kingdom currently lacks the power to commence the Brexit process pursuant to Article
50 of the Treaty on European Union ('EU Treaty').2 Hence, the Article 50 trigger
cannot be pulled unless and until the Parliament in Westminster provides for that to be
done.
The decision has been both commended and criticised, on many different bases,3
and the UK government has recently been granted permission to appeal to the Supreme
Court. While the decision in Miller is certainly not the end of this story, it is worthy of
examination in its own right. To some extent, the case refocusses our attention, away
from the relationship between judicial and legislative power that has attracted so much
interest in recent years, and towards the relationship between the legislature and the
executive, and between the judiciary and the people. Miller reminds us of the
importance of the events that culminated in 1688, and the fact that many principles of
British constitutional law were forged in the contest between Parliament and the
Crown. The most fundamental of these, the Court affirms, is the sovereignty of
Associate Professor at Monash University Faculty of Law.
Lecturer at Monash University Faculty of Law. The authors would like to thank members of the
Monash University Faculty of Law's Public Law Group, and particularly Triantafyllos Gkouvas,
for discussing Miller with us, and providing feedback on some of our initial thoughts about the
judgment.
[2016] EWHC 2768 (Admin) ('Miller'). Henceforth, all references are to this case, unless
otherwise specified.
2 Henceforth 'the Treaty'. For ease of exposition we elide changes of both nomenclature and
substance in relation to the EU and its historical antecedents.
3 A range of expert reactions was collected by the Judicial Power Project, which can be found at
http://judicialpowerproject.org.uk/high-court-miller-judgment-expert-reactions/. See also and
further Mark Elliott and Hayley Hooper, 'Critical reflections on the High Court's judgment in R
(Miller) v Secretary of State for Exiting the European Union', UK Constitutional Law
Association, https://ukconstitutionallaw.org/2016/11/07/mark-elliot-and-hayley-hooper-critical-
reflections-on-the-high-courts-judgment-in-r-miller-v-secretary-of-state-for-exiting-the-
european-union/; Robert Craig, 'The Abeyance Principle and the Frustration Principle', UK
Constitutional Law Association, https://ukconstitutionallaw.org/2016/11/16/robert-craig-the-
abeyance-principle-and-the-frustration-principle/; John Finnis, 'Terminating Treaty-Based UK
Rights', Judicial Power Project, http://judicialpowerproject.org.uk/john-finnis-terminating-
treaty-based-uk-rights/.](ViewImageLocal?handle=hein.journals/qland35&div=26&collection=&method=preview&ext=.png&size=3)
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Parliament, the People and Interpreting the Law: Miller v Secretary of State for Exiting the European Union
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