Lord Reed's Dissent in Gina Miller's Case and the Principles of Our Constitution

Abstract

There was no legal authority for the majority decision in the Miller case. That places the decision in a long and honourable tradition of landmark constitutional cases for which there was no conclusive legal justification. This article asks whether such decisions can be understood as exercises in constructing the principles of our constitution through interpretation of our constitutional history, and argues that they can better be seen as the exercise of a judicial constituent power – that is, a power to make new constitutional rules. The problem with the Miller decision is not that there was no legal authority for what the Supreme Court did; it is that responsible government was not furthered by the creation of a legal requirement of legislation to authorize the initiation of the process of departure from the European Union.

Keywords: Constitutional law, executive power, prerogative, constructive interpretation, constituent power