“By stirring up popular anger to pressure judges into deciding a case contrary to law to benefit the executive at the expense of Parliament, the reaction to Miller presents a grave threat to our constitutional order, a threat both to the rule of law and to the very structure of democracy in the United Kingdom. It is in our view the duty not only of the Lord Chancellor but of all constitutional lawyers and commentators of any conscience to condemn these attacks in unequivocal terms. We applaud those who have done so already.”
The most surprising thing about the decision in R (Miller) v Secretary of State for Exiting the European Union is that so many people have found the decision surprising. The reasoning in the case – essentially, that the executive is unable to use the prerogative to remove statutory rights – rests on a clear line of case-law going back four hundred years, and turns on a foundational principle of constitutional law. It is unremarkable that three of the country’s leading judges – the Master of the Rolls, the Lord Chief Justice, and the leading public law judge in the Court of Appeal – were able to produce a unanimous, clear, judgment restating this orthodoxy. The only remarkable thing about the judgment is how such quality was produced under such extraordinary time and political pressure.
We, along with Tom Hickman, have discussed the reasoning adopted by the court in an earlier…
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