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Editorial: Constitutional Litigation - Aidan Ellis, Temple Garden Chambers

30/01/17. Though not a personal injury claim, it would be churlish for this editorial to overlook the most important legal case of the month. In Miller v Secretary of State for exiting the European Union, the Supreme Court decided by majority that withdrawal from the treaties establishing the European Union required an Act of Parliament and could not lawfully be done by the executive alone. Though the Supreme Court decision attracted less florid criticism than the earlier Divisional Court judgment, it remains a highly controversial decision both legally and politically. This editorial does not intend to wade into the merits of the decision, but to ask why a legal case generated such vitriol.

On one level, the answer is straightforward. The case followed a divisive referendum that has led to allegations of dishonesty in both campaigns. People divided into opposing camps by the referendum were divided again in their response to the case. But it is suggested that this cannot provide a complete explanation for a situation in which a newspaper feels able to label senior Judges as ‘enemies of the people’.

Another relevant factor might be that genuine constitutional litigation remains relatively rare in the United Kingdom. The legal interest in this case arose from the tension between two fundamental constitutional principles: the undoubted prerogative power exercised by ministers to conduct international relations and enter treaties and the equally clear principle that the executive, without the authority of parliament, may not alter national law. The key cases on the extent of royal prerogative powers cited in the judgment were the Fire Brigades Union (1995), Burmah Oil (1965) and De Keyser’s Royal Hotel (1920); all cases which would have been familiar to law students 20 years ago. Decades have passed in between these decisions. As a result, it is hardly surprising that as a nation we are simply not used to such issues being determined by a Court, unlike for example the accepted role of the Supreme Court in the USA.

Another factor might be that our constitution is inaccessible. Our constitutional rules have developed organically over time and one result of that process is that the rules are rarely neatly gathered together in one place. Instead, key principles are often buried deep in constitutional law textbooks. The historical dimension is particularly relevant in relation to the prerogative powers, where a historical analysis may be required to determine the scope of a prerogative power and then to determine if that power has expressly or impliedly been abrogated by statute in the intervening years. Whilst paragraphs 40 – 59 of the majority judgment should be commended for their lucid summary of the relevant principles, that we need to look to the detail of judgments itself shows that the constitution is not readily accessible.

One solution to these matters would be to codify a written constitution. That would be an enormous undertaking, made only slightly easier by removing a layer of European complications. But if a constitution could be drafted, it would make constitutional law more accessible. Perhaps in that case constitutional litigation would occur more frequently, be met with less hostility and law students would not have to wait another twenty years for the next blockbuster case.

Aidan Ellis
Temple Garden Chambers

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