Book Review: Alexander Hudson on “The UK Constitution After Miller: Brexit and Beyond”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alexander Hudson reviews Mark Elliott, Jack Williams & Alison L Young (eds.), The UK Constitution After Miller: Brexit and Beyond (Hart 2018).]

–Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity, Fellow Group “Comparative Constitutionalism”

In a very timely volume, Mark Elliot, Jack Williams, and Alison L. Young have assembled eleven essays that consider the impact of the United Kingdom Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union[1] on the Brexit process, the United Kingdom (UK) constitution, the manner of constitutional adjudication in the UK, and indeed the impact upon the Supreme Court itself. The authors of the various chapters include both scholars and practitioners, and provide a wide range of views on the various merits and demerits of the litigation and of the judgment delivered by the Supreme Court. Two of the authors were directly involved in the litigation. The combination of first-hand views and scholarly analysis by some of the UK’s leading law professors makes this volume an authoritative resource on the Miller judgment and its broader importance for the UK constitution.

While at the time of writing this review (December 2018) the Brexit process is still fraught with uncertainty, and the content of the book is highly politically relevant, the authors of these chapters focus on the larger constitutional implications of the Miller judgment. No matter how Brexit plays out, the Miller precedent will have implications for separation of powers and constitutional adjudication in the UK. Another pressing concern after Brexit will be the extent to which the sojourn within the EU has impacted domestic law in the UK. Several of the chapters address this question, and also provide some indications about which parts of EU law might remain after Brexit is completed.

The authors of the various chapters assume a high level of knowledge about constitutional law in the UK, but the book is accommodating of readers who have not followed the Miller litigation closely. The introductory chapter provides a brief history of the Brexit referendum, and the litigation in Miller and a similar case in Northern Ireland (Re McCord and Agnew[2]), before summarizing the arguments of the various chapters. While clearly not the intended audience, there is much for scholars of comparative constitutionalism to learn from this book. It is likely to be of some interest to those who study separation of powers in Westminster systems.

The editors have assembled chapters that provide a comprehensive view of the Miller judgment and its consequences. Some of the chapters speak to each other, or at least engage with earlier works by authors of other chapters. Each of the chapters can stand alone, which while making for some repetition (such as summaries of the main legal questions decided in Miller) would allow a reader to choose the chapters of interest without missing the larger context of the book. It is also noteworthy that the authors of the various chapters disagree with one another about the merits and demerits of the majority judgment in the case. While space prevents a full summary, I will preview the structure of the book and highlight aspects of a few chapters that are likely to be of greater interest to comparative constitutional law scholars.

As noted, the book begins with an introduction to Brexit and Miller written by the editors. In the first substantive chapter, Jack Williams provides an analysis of how the Miller judgment affects prerogative powers. Anne Twomey’s contribution also deals with prerogative powers, arguing for a narrow application of the judgment. Erik Bjorge’s chapter criticizes the way that the majority judgment conceptualizes the relationship between domestic and international law. A chapter by Paul Craig explores the relationship between UK law and EU law, including some options about how this will develop post-Brexit. David Howarth’s contribution considers the legal procedures through which EU law entered UK law. Aileen McHarg then addresses the relationship between the Brexit process and devolution. The chapter by Gordon Anthony explores these issues with a focus on Northern Ireland. Sir John Laws’ contribution to the volume explores how treating the European Communities Act as a constitutional statute could have informed the Miller judgment. Mark Elliott’s chapter describes Miller in the context of the UK’s flexible and pragmatic constitutional order. A chapter co-authord by Richard Ekins and Graham Gee critically examines the political context of the Miller litigation. The concluding chapter by Alison Young considers what Miller may tell us about the future of the UK Supreme Court.

There is some implicit debate between the authors of several chapters (as within the majority of the Supreme Court) about the mechanism through which EU law entered UK law, and whether this process resulted in the creation of statutory rights. This is characterised by David Howarth in his chapter in terms of the metaphors of a power cable or a bridge. In the former case, repeal of the European Communities Act would immediately terminate the power of any EU derived rights. In the latter case, whatever had already entered UK law at the time of a Brexit would remain within UK law. Clearly this distinction would matter in terms of the central question in Miller, which was whether Brexit would remove rights and thus be beyond the powers of ministers. This issue is also implicit in the strong criticism of the majority judgment that is found in the chapters by Mark Elliot, and Richard Ekins and Graham Gee. The Ekins and Gee chapter is especially notable for its criticism of the motivation behind the Miller litigation, and its no-holds-barred deconstruction of the majority judgment.

One chapter that will be of interest to scholars of comparative constitutional law is Anne Twomey’s contribution, which assesses the Miller judgment from an Australian perspective. Her analysis here is useful for constitutional law scholars in other Commonwealth realms, as Crown prerogatives function differently in the UK in comparison with the Crown’s other realms. This makes a comparative interpretation of the meaning of the judgment in Miller a bit more complicated.

Given the details of the agreement reached between the UK government and the EU in Autumn 2018 (and the subsequent political crisis in the UK), Gordon Anthony’s chapter on the Northern Ireland references is also worthy of note. Anthony participated in the McCord and Agnew litigation, and in this piece analyses the likely impact of the judgment of the Northern Ireland High Court in that reference. Anthony notes some of the matters left undecided in that judgment, and anticipated some of the features of the Brexit agreement negotiated by the UK government in the Autumn of 2018 with respect to the border between Northern Ireland and the Republic of Ireland. He also argues that ratification of any Brexit deal must include the consent of the devolved government of Northern Ireland on the grounds that the status of Northern Ireland (and the legislation that facilitated the peace process) would be especially affected.

As Brexit continues to unfold in 2019, this various chapters in this volume will be good resources for those who wish to gain a greater understanding of the constitutional ramifications of the UK leaving the EU, and the ongoing development of the UK Supreme Court.

Suggested Citation: Alexander Hudson, Review of “The UK Constitution After Miller: Brexit and Beyond”, Int’l J. Const. L. Blog, Dec. 21, 2018, at: http://www.iconnectblog.com/2018/12/book-review-alexander-hudson-on-the-uk-constitution-after-miller-brexit-and-beyond

[1] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] WLR 583.

[2] Re McCord and Agnew [2016] NIQB 85, [2017] CMLR 7.