Monday 7 November 2016

The High Court's decision in Miller - Collection of materials

"Justice is not a cloistered virtue: she must be allowed to to suffer scrutiny and respectful, even though outspoken, comments by ordinary men" - Lord Atkin - Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 (PC).

On 3rd November, the High Court handed down its judgment in a case that, for ease of reference, we may just call Miller - Here is the court's full judgment or via Bailii and previous post with links to the transcripts of the 3 day hearing -High Court hearing on article 50 litigation.  The court concluded that the Secretary of State does not have power under the Crown's prerogative to give notice pursuant to Article 50 of the TEU for the United Kingdom to withdraw from the European Union.

It follows from this conclusion that Parliament will have to somehow authorise the triggering of Article 50 and there are reports that a legislative Bill is being drafted.  The court was considering the process which, as a question of law, should apply to the triggering of Article 50.  The court was definitely NOT considering whether Brexit is desirable or not because that is a matter entirely in the political sphere.

The judgment has produced an astonishing amount of comment and this post offers links to as much of it as I have been able to find.  We should be thankful that, in our democracy, we are free to offer comment, critical or otherwise, about the decisions of the powerful whether they be judges or politicians.  Regrettably, some of the media comment has gone well beyond the boundaries of reasonable informed criticism.

The judgment is consistent with the fact that the UK has a system of Parliamentary Representative Democracy but it must be accepted that referendums have added an important dimension to politics as well as raising important issues about the Constitution.  (In March 2010, the House of Lords Constitution Committee published a report on Referendums in the UK.  The government response to the report was issued in October 2010).   The Miller case also highlights the immense powers which Ministers exercise under the prerogative and brings into focus the ways in which such powers are both limited by law and the extent to which they are subjected to Parliamentary scrutiny and control.

It is not possible at this stage to forecast how the Supreme Court may decide the appeal.  In part this is because the case may be argued differently.  For example, it was assumed by all parties in the High Court that notice under Article 50 could not be revoked by the UK.  The Supreme Court, as a final court of appeal, may consider it necessary to refer to the Court of Justice of the EU the question of revocability.  A further point is that, in the Supreme Court, there may be interventions on behalf of the devolved governments in the UK. and also, it is likely that the Northern Ireland High Court judgment will also be appealed and heard at the same time - previous post.


Useful documents are "Taming the Prerogative" and Review of the Royal Executive Prerogative Powers: Final report.

The links:

Added 26th November

Research Briefings Parliament - Leaving the EU: Future UK-EU relationship

Supreme Court announcement on interveners

Court of Justice of the EU - Recommendations to national courts - Preliminary references

Lord Millett - Prerogative power and Article 50 of the Lisbon Treaty

hK Constitutional Law Association blog - Gavin Phillipson - The Miller case Part 1 - a response to some criticisms

Added 24th November

Edwin Coe LLP has now filed Mr Dos Santos’ written case in the Supreme Court -

London review of Books - Frederick Wilmot-Smith - Who speaks for the State?

Added 23rd November

Oxford Human Rights Hub - Paul Craig - Miller: Alternative Syllogisms

Added 22nd November

UK Constitutional Law Association blog - Jeff King and Nick Barber: In defence of Miller

Added 21st November

Exeter University - Aurel Sari - Reversing a Withdrawal Notification under Article 50 TEU: Can the Member States change their mind?

Professor Mark Elliott - Article 50, the Royal Prerogative and the European Parliamentary Elections Act 2002

Added 19th November

Anderson Strathern - Article 50 legal challenges: an update

Mikolaj Barczentewicz - Consequences of the High Court's reasoning in the Article 50 judgment

Added 17th November

Alison Young - R (Miller) v Secretary of State for Exiting the EU: Constitutional adjudication - Reality over legality?

Francesco de Cecco - Miller, Article 50 revocability and the question of control

Queens University Belfast - Brexit Resource and also article by Professor Dagmar Schiek - High Court ruling on withdrawal from the EU - a legal perspective

Aberdeen University - Dr Robert Brett-Taylor - The Brexit case: The reasoning, implications and potential consequences of the High Court's judgment

Aberdeen University - Dr Justin Borg-Barthet - Yeah but, No but: Why the High Court was right and wrong in the Brexit case

Added 16th November

Ewan Smith - Treaty rights in Miller and Dos Santos v Secretary of State for Leaving the EU

Robert Craig: The abeyance principle and the frustration principle

Added 15th November

Professor Sionaidh Douglas-Scott - Why the government should still lose in the Supreme Court even with new arguments

House of Commons Library - Research Briefing - Brexit and the EU Court

Added 14th November

University of Bristol Law School blog - Dr. Eirik Bjorge - EU rights as British rights

UK Constitutional Law - Campbell McLachlan QC - The Foreign Affairs Treaty Prerogative and the Law of the Land

UK Constitutional Law - Kieron Beal QC - The taxing issues arising in Miller

Monckton Chambers - George Peretz QC - Will the Supreme Court have to make a reference to the Court of Justice of the EU in Miller/: further thoughts

Matrix Chambers - Brexit Round-up - Week commencing 7th November

Added 10th November

Andrew Henshaw QC (Brick Court Chambers) - The Brexit case: an alternative view 

Keith Ewing - UKCLA - A Review of the Miller decision

Added 9th November

Judicial Power Project - Christopher Forsyth - The High Court's Miller judgment - (A clearly written analysis of why the author considers that the High Court may have gone wrong)

UK Constitutional Law Association - David Feldman - Brexit, the Royal Prerogative and Parliamentary Sovereignty

Added 8th November

UK Constitutional Law Association - Jeff King (Professor of Law, UCL) - What next? Legislative authority for triggering Article 50.

Youtube (4 mins) 5th July 2016 - Professor Michael Dougan (University of Liverpool) talking to Parliamentary committee about the process of leaving the EU.

UK Human Rights Blog - Parliament prevails

7th November and before

Mark Elliott and Hayley J. Cooper: Critical reflections on the High Court's judgment in R (Miller) v Secretary of State for Exiting the EU - (Here is a detailed critique of the Miller judgment.  Lengthy but worth the effort).

Oxford Human Rights Hub - Sandra Fredman - The least dangerous branch: Whose role is it to protect Parliamentary Sovereignty?  Miller and the human rights implications of Brexit

UK Constitutional Law Association - Nick Barber and Jeff King: Responding to Miller

Greg Callus - A Typo in the Constitution blog - After the Miller judgment  

Paul Daly - Administrative Law Matters - Some thoughts on R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768. 

Prospect - What does today's High Court ruling on Article 50 mean?

David Allen Green - Financial Times (£) - The Article 50 decision is taken out of Theresa May's hands

LSE - Jo Murkens - The High Court ruling explained: An embarrassing lesson for Theresa May's government.

Queen Mary University - Professor Sionaidh Douglas-Scott responds to Brexit judgment

How to Crack a Nut blog - Albert Sanchez Graells - Why an appeal of the High Court Parliamentary Approval Brexit judgment will bring the litigation to the Court of Justice of the EU

EU Law Analysis - Steve Peers - Brexit: can the ECJ get involved?

Liverpool University - Viewpoint: Legal analysis of today's successful; Article 50 challenge

Barrister Blogger - Rushed, barely coherent thoughts on today's Article 50 judgment

Law Society Gazette - Brexit: the court speaks

Head of Legal - Carl Gardner - Why the High Court got the law wrong about Brexit

Public Law for Everyone - Prof Mark Elliott - On whether the Article 50 decision has already been taken

Public Law for Everyone - Prof. Mark Elliott - The High Court's judgment in Miller: A Brief Comment

Judicial Power Project - High Court Miller Judgment: Expert reactions 

Jamie Foster - Brexit gunpowder treason and plot

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