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Mark Elliott, Jack Williams and Alison Young (eds), The UK Constitution after Miller: Brexit and Beyond

Document Cited authorities 5 Cited in Related
Vincent
DOI10.3366/elr.2019.0565
Pages293-295
Date01 May 2019
Published date01 May 2019

The Supreme Court's decision in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61 will be remembered as one of the most high profile decisions in the court's history. This excellent book opens with a substantial chapter laying out the background of the “Miller Tale”. Reviewing this precis of the case, one is reminded of the swiftness with which the Supreme Court was able to produce its judgment; the case was heard over four days beginning on 5 December 2016, with the judgment handed down on 24 January 2017. The court must be congratulated for engaging as deeply as it did with the relevant issues in such a short space of time. However, the judgment is not a paragon of clarity and the present volume makes a significant attempt to clarify many of the apparent inconsistencies within the decision.

The contributions take Miller as the starting point to discuss a number of fundamental constitutional issues which arise from the case. Broadly speaking, the contributions can be divided into those which deal with: (i) the prerogative power to enter into and withdraw from international treaty obligations; (ii) the nature of EU law within the UK constitution; (iii) the nature of judicial control of executive actions; and (iv) the court's analysis of the Sewel Convention.

The space provided for this review cannot possibly allow one to do justice to the depth of analysis contained within this volume nor the extent of the academic debate(s) which it is likely to inspire. The following survey touches upon some of the most thought-provoking chapters.

Credit must be given to Jack Williams who provides a spirited defence of the majority judgment and seeks to place it within a new conceptual framework as to how the courts must interpret prerogative powers. Rather than simply focusing on whether a prerogative power has been excluded by statute, Williams highlights that the necessarily preliminary questions of the existence and extent of the power in question must be dealt with first. The critical framework provided is of significant use and it is submitted that its utility extends beyond analysis simply of the treaty-making powers which were the subject of Miller.

One of the most striking analogies used within Miller was the description of the European Communities Act 1972 (“1972 Act”) as a “power cable” through which EU law was able to “charge” domestic law rather than a “bridge” over which EU law would travel. The critical distinction...

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