The UK Constitution After Miller: Brexit and Beyond

Description

The judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union is of fundamental legal, constitutional and political significance. The Supreme Court’s judgment discussed the relative powers of Parliament and the Government, the relationship between Westminster and the devolved legislatures, and the extent to which the UK’s membership of the EU had changed the UK constitution, both prior to and even after departure. It also provided further evidence of the emerging role of the UK’s Supreme Court as a constitutional court, despite the lack of a codified constitution in the UK. This edited collection critically evaluates the decision in Miller, providing a detailed analysis of the reasoning in the judgment and its longer-term consequences for the UK constitution through the period of Brexit and beyond. The case is used as a lens through which to evaluate the modern UK constitution and its potential future evolution. Whatever form Brexit may eventually take, the impact that EU membership and the triggering of Brexit has already had on the UK’s constitutional settlement is profound. The book will be of great value to anyone interested in the effect of the Miller case and Brexit on the UK’s constitution. Foreword by Sir Stephen Sedley Contents List of Contributors 1. The Miller Tale: An Introduction I. Prologue II. Miller in the Divisional Court III. Miller in the Supreme Court IV. Noteworthy Aspects of the Litigation V. Implications of Miller VI. Contributions to this Volume VII. A Brief Look Ahead 2. Prerogative Powers After Miller: An Analysis in Four E's I. Introduction II. The Analytical Framework: The Four E's III. Defending the Four E's Framework Against Possible Challenges IV. Application: Leaving the European Union V. Conclusion 3. Miller and the Prerogative I. Miller and Limits on the Prerogative II. Treaties and the Prerogative III. Treaty-making Reform and Increasing Parliamentary Accountability IV. Miller—A Constitutional, Rather Than a Legal, Outcome V. The Value in Retaining the Prerogative VI. Conclusion 4. Miller, Treaty Making and the Rights of Subjects I. Frontispiece II. The Orthodoxy as Recently Questioned III. Historical Antecedents IV. The Separation of Powers V. Conclusion 5. Miller, EU Law and the UK I. Pre-Brexit II. Brexit, Betwixt and Between III. Post-Brexit IV. Conclusion 6. Of Power Cables and Bridges: Individual Rights and Retrospectivity in Miller and Beyond I. The Power Cable or the Bridge? II. The Retrospective Consequences of the Power Cable Theory III. The Adoption of the Power Cable Theory in Miller IV. The Inconsistent Assumptions of the European Union (Withdrawal) Bill V. Some Implications and Lessons for the Future 7. Constitutional Change and Territorial Consent: The Miller Case and the Sewel Convention I. Brexit and the Territorial Constitution II. The Sewel Convention and Constitutional Change III. The Justiciability of the Sewel Convention IV. The Implications of Miller for the Territorial Constitution 8. Sovereignty, Consent and Constitutions: The Northern Ireland References I. Introduction II. The (Pre-Brexit) Northern Ireland Constitution: Some Fundamentals III. The Northern Ireland References: Agnew and McCord IV. Constitutional Futures V. Conclusion 9. The Miller Case and Constitutional Statutes I. Introduction II. Miller III. The Primacy of EU Law? IV. The Source of EU Law in the United Kingdom V. Delegated Legislation VI. The Impact of the Concept of a Constitutional Statute VII. Silence in Statutes VIII. Constitutional Statutes: General Lessons IX. Referendums X. Henry VIII Powers XI. Conclusions 10. Sovereignty, Primacy and the Common Law Constitution: What has EU Membership Taught Us? I. Factortame and the British Way II. Inundated by the 'Incoming Tide'? III. The Majority Judgment in Miller IV. Legislative Suspension of Implied Repeal? V. Constitutional Statutes, the Common Law and Parliament VI. Factortame and HS2 Compared VII. Lessons Learned 11. Miller, Constitutional Realism and the Politics of Brexit I. Introduction II. The Referendum and the Elite Cry of Rage III. Politics by Other Means? Framing Strategic Litigation IV. Constitutional Law and Constitutional Practice in the Supreme Court V. Who Guards the Constitution? VI. Notes on the Next 'Crisis' VII. Conclusion 12. Miller and the Future of Constitutional Adjudication I. A 'Fundamental' or 'Realistic' Approach to the European Communities Act 1972 II. The Use of General Principles of Constitutional Law III. Abstract Constitutional Adjudication in All But Name? IV. The Sewel Convention: An Overly Narrow Approach? V. Conclusion Index