Brexit, Prerogative and the Courts: Why Did Political Constitutionalists Support the Government Side in Miller
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BREXIT, PREROGATIVE AND THE COURTS: WHY DID POLITICAL
CONSTITUTIONALISTS SUPPORT THE GOVERNMENT SIDE IN MILLER?
GAVIN PHILLIPSON
I INTRODUCTION
What makes the case of Miller v Secretary ofState for Exiting the European Union'
of interest in a volume dedicated to the rise ofjudicial power? What makes it noteworthy
as a point of contestation between legal and political constitutionalists? One might
observe first that Miller was probably unique in British constitutional history in terms of
the sheer scale of both academic and general public interest that it generated. Dubbed
the 'constitutional case of the century', it received saturation, if sometimes
sensationalist, coverage across the UK print and broadcast media and was widely
reported around the world. Given that it concerned the issue of Brexit - the most
explosively contentious as well as the most important issue in British politics - this was
perhaps not surprising. More importantly for our purposes, it produced a volume and
intensity of engagement by the academic community that was unprecedented. Several
hundred thousand words of commentary about it were published in a few short months,
on the UKCLA blog and elsewhere,2 including notable contributions by scholars from
Australia3 and New Zealand.4 It also provoked passionate disagreement. The public law
community was split down the middle. Moreover, as discussed below, academic
commentary, perhaps unusually, amounted to an important source of the legal arguments
used in the case.
Another notable feature of the case for our purposes is that Policy Exchange's
Judicial Power Project,' which takes a highly sceptical stance on judicial power in the
constitution, took a strongly pro-Government line throughout. This echoed the way that
the public law community split on Miller. Broadly speaking, those seen as having a
political constitutionalist bent - favouring political determinations of constitutional
questions, and democratic power over judicial determination and judicial power -
supported the Government side;6 legal constitutionalists the claimant side. There were
of course exceptions: Mark Elliott, whom I would regard as a moderate legal
Professor of Law, Durham University, UK. An earlier version of this paper was given at a seminar
at City University on 1 November 2017. The author is grateful to John Stanton for arranging and
chairing it and all the participants. Many thanks also to Robert Craig and Alison Young for very
helpful comments on an earlier draft of this article and particularly to Graham Gee for his
invaluable editorial input. The usual disclaimer applies. All websites were last visited on 15
December 2017.
R (on the application ofMiller) v Secretary ofState for Exiting the European Union [2017] UKSC
5; [2017] 2 WLR 583 (hereafter 'Miller').
2 See eg, the list of contributions compiled by R Craig, Miller: An Index ofReports and Commentary
(25 January 2017) Judicial Power Project <www.ukconstitutionallaw.org/2017/01/25/robert-
craig-miller-an-index-of-reports-and-commentary/>.
3 N Aroney, 'R (Miller) v Secretary of State for Exiting the European Union: Three Competing
Syllogisms' (2017) 80(4) Modern Law Review 685.
4 C McLachlan, 'The Foreign Affairs Treaty Prerogative and the Law of the Land', UK
Constitutional Law Blog (14th November 2016).
5 See generally <www.judicialpowerproject.org.uk/>.
6 I would include within this list Richard Ekins, John Finnis, Adam Tomkins, Sir Stephen Laws,
Mikolaj Barczentewicz, Timothy Endicott, Christopher Forsyth and Mike Gordon, all of whose
work is discussed and cited in this paper.](ViewImageLocal?handle=hein.journals/qland36&div=22&collection=&method=preview&ext=.png&size=3)
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Brexit, Prerogative and the Courts: Why Did Political Constitutionalists Support the Government Side in Miller
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