The Pros And Cons Of The Miller Case

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This essay will look at the judgments given in the Miller case with regards to Article 50, and the royal prerogative. Prior to Gina Miller’s litigation, the Government wanted to use prerogative powers to leave the EU without Parliament. The Government Ministers claimed that because it was foreign policy, it fell within the Government’s jurisdiction. The decision made in The Supreme Court on 24th January 2017 was that Parliament should be involved in withdrawal decisions. Both the majority judgment and the dissenting judgment will be discussed and evaluated.

Prerogative power is ‘one of the most significant elements of the UK’s constitution’ and is exercised by the Government in the name of the monarchy. Parliament’s role in the prerogative is purely reactive; they cannot prevent ministers from exercising the prerogative but they can call the ministers ‘to account for the way [it] has been exercised’. A. V. Dicey believed that prerogative powers were ‘discretionary powers that the Crown retains because they have not been abolished by Parliament or replaced by statutory powers’. However, William Blackstone held that they were the ‘special pre-eminence, which the king hath over and above all other persons’.

Despite these opinions, it can be concluded that prerogative powers are not supreme. They are easily displaced by statutes, as shown in the de Keyser case. It was decided that ‘if the whole ground of something which could be done by the prerogative is covered by the statute, it is the statute that rules’. Lord Brownie-Wilkinson supports this in the Fire Brigades Union case; ‘it would be most surprising if, at the present day, prerogative powers could be validly exercised…to pre-empt the decision of Parliament whether or not to continue with the statutory scheme’.

While the main focus of this essay is the Miller case, Article 50 is important in leaving the European Union. The European Council must be informed, and arrangements for the withdrawal and future relationship agreed. Under Article 50, any Treaties made with the withdrawing member will expire two years after the withdrawal notice.

In the Miller case, Mr Eadie argued that entering into and withdrawing from

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