In Defence of Miller

gina-miller.jpgIn June 2016, Jeff King, Professor of Law, UCL and Nick Barber, Associate Professor of Law, University of Oxford, argued that parliamentary approval was required before Article 50 could be triggered. At the time, their arguments were (wrongly) dismissed by various politicians and constitutional experts. Here, they present a rigorous and legally dense defence of the High Court’s recent decision that parliament must give its approval before the government can trigger Article 50. 

Miller v Secretary of State for Exiting the European Union has stimulated quite a bit of debate. Some criticism of the decision has been well-informed and thoughtful, whilst some of it has been, to put it charitably, less worthy of engagement. In this post we respond to what we view as the strongest arguments against Miller, taking account of the Government’s written case for appeal. We discussed the reasoning used in the case in an earlier post written with Tom Hickman, and will not repeat that explanation here. This post assumes knowledge of that earlier piece, which was written with the lay reader in mind. The present piece, more legally detailed, is necessitated by the quite subtle replies to the argument in that original post and to the judgment in Miller.

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The UK decision to withdraw from the EU: parliament or government?

high court.jpgIn light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s ‘constitutional requirements’ for leaving the EU entail, noting that Parliament has a role to play in any withdrawal decision.

The litigation concerning the triggering of Art 50 TEU is under way, with hearings this week and next. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Art 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.

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Is the United Kingdom a Mini-EU?

gb flagsRonan McCrea, Barrister and Senior Lecturer in Law at UCL, draws parallels between the political structure of the UK and the European Union and argues that, with the growth of independence movements in Scotland and Wales, the UK increasingly resembles a loose collection of sovereign nations.

The United Kingdom is to leave the European Union, partly in order to protect the right to self-government of the UK as a nation state as expressed through the sovereignty of the Westminster Parliament. Interestingly, the reaction to the decision to leave the EU reveals the degree to which through a combination of devolution with increased recourse to referendums, the United Kingdom has drifted into being a kind of voluntary grouping of sovereign nations that bears significant similarities to the European Union. Continue reading

The EU referendum and some paradoxes of democratic legitimacy

27678701211_6125a9b158_zIn parliamentary democracies referendums generate alternative, competing sources of legitimacy. This has been clearly demonstrated by the EU referendum result, with the public voting to Leave despite a clear parliamentary majority for continued membership. Nat le Roux, Strategy Director of The Constitution Society, discusses this paradox and suggests that it would not be unreasonable for some MPs to choose to vote against the invocation of Article 50.  

In a parliamentary democracy, referendums are potentially destabilising because they generate alternative, competing, sources of democratic legitimacy. A majority of elected representatives may hold one view on a matter of major national importance. If a referendum demonstrates that a majority of the public hold the opposite view, which manifestation of democratic legitimacy should trump the other? Continue reading