35 U. Queensland L.J. 331 (2016)
Parliament, the People and Interpreting the Law: Miller v Secretary of State for Exiting the European Union

handle is hein.journals/qland35 and id is 337 raw text is: 





   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/.

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