Miller and the Future of Constitutional Adjudication

Posted: 1 Feb 2018

Date Written: January 24, 2018

Abstract

This paper examines the extent to which the decision of the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union can be classified as an example of constitutional adjudication and what this may mean in the UK context. The majority's reasoning was novel in its adopting of a 'realistic' or 'fundamental' approach to the interpretation of the European Communities Act 1972, its focus on a more 'top-down' as opposed to 'bottom-up' use of constitutional principles and its analysis of a question as to the potential legality of a future act. Nevertheless, these developments are not completely unique, with similar examples being found in earlier case law. Moreover, the context of the decision justifies the adoption of this style of constitutional reasoning in the case. However, the paper also argues that future misgivings and misunderstandings of the legitimacy of the Supreme Court reasoning in this manner could be avoided were the UK to adopt a reference procedure allowing the giving of opinions on abstract issues of constitutionality in a manner similar to that adopted in other constitutions.

Keywords: UK Constitutional Law, Brexit, Miller, Constitutional Adjudication

Suggested Citation

Young, Alison L., Miller and the Future of Constitutional Adjudication (January 24, 2018). Available at SSRN: https://ssrn.com/abstract=3108481

Alison L. Young (Contact Author)

University of Cambridge ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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