Mark Elliott and Hayley J. Hooper: Critical reflections on the High Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union


UK Constitutional Law Association

Mark ElliottHayley J HooperThe judgment of the High Court in R (Miller) v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), decided on 3 November 2016, has been subjected to astonishing and wholly misguided criticism by politicians and the press. Let us be clear, then, at the outset of this post that we entertain no doubt whatever about the constitutional appropriateness of the Court ruling on the question that was put to it in Miller. The question for the court was solely a legal question about the extent of executive authority. It was not, as some tabloid newspaper outlets have suggested, an opportunity seized by an elite judiciary to usurp the will of the people. Questions on the legal limits of governmental authority are par excellence questions for courts in any democracy based on the rule of law.

To criticise the Miller judgment — and the judges…

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37 comments

  • “The decision in Miller turns upon the application of the constitutional principle that (as the Court put it) ‘the Crown has no power to alter the law of the land, whether it be common law or contained in legislation’. Triggering Article 50 plainly will not alter or repeal the ECA itself. That will, quite properly, be a matter for Parliament, via the so-called ‘Great Repeal Bill’. But will Article 50 nevertheless alter ‘the law of the land’ by ultimately causing a removal of at least some of the legal rights presently enjoyed by individuals as a matter of EU law?”
    So what is to stop the government introducing legislation giving domestic authority to all EU Regulations (which would otherwise fall were we to leave the EU), and enshrining all EU ‘rights’ (whatever they may be) into domestic law.
    Then nothing will change if we leave the EU, except that Parliament will then have the authority to repeal them, which it presently lacks.

    • That’s exactly what will happen when the ECA is finally repealed.

      • Yes indeed – it is quite ironic that a law which will give domestic force to a load of EU Regulations is called the Great Repeal Bill.

        • Well, to be fair, there aren’t many EU Regulations at all. Almost-all EU law is transposed through the national legislatures, and therefore already incorporated, so that aspect of things won’t be much of technical challenge.

          • That doesn’t sound correct. I remember a move towards Regulations and away from Directives beginning many years ago. I don’t have any figures though so I can’t contradict you.

            • You may well be right, Hugo. I would expect Regulations to be significantly fewer in number, due to the care that needs to be taken in drafting them, apart from anything else. However the position may have changed since I last read up on the topic.

        • I wonder if this is partly why Labour has changed its stance on blocking Article 50; after all, it is not as though leaving the EU would abolish all the regulations they so cherish, as these have already been enshrined into UK law, and where they have not been, there is nothing preventing that from occurring… albeit I think if Parliament were to be the instrument to decide upon that, we’d need a fresh GE, as public attitudes have shifted significantly following the decision to Brexit.

          • Regulations don’t need to be enshrined into UK law; Directives do (almost always by Statutory Instrument, which I believe is a totally unsatisfactory if not unconstitutional method). If we were to leave the EU, Regulations would immediately have no effect, whereas Directives would be untouched. This is why we need to give temporary domestic force to all the Regulations, or there would be chaos.
            Incidentally I once worked out that if we repealed ten directives a day it would take us forty years to be rid of them all.

            • Thanks, I wasn’t aware there was a difference.

  • This article is very good and comes close to changing my mind about the Miller ruling, but I think the authors fall down on two points:

    (i). Their interpretation of Article 50.
    (ii). The legal nature of EU rights.

    (i). Interpretation of Article 50.

    The authors rightly point out that triggering Article 50 will not alter the law, however they omit to consider what the effect on the law will be should the Article 50(2) notice period expire under the provisions of Article 50(3). It is not that the notice is ‘revocable’ – that, I would suggest, is a red herring, as despite there being no explicit provision for it, the high contracting parties to the Council could resolve to rescind the notice (and I also take note of the comments made about the possible legality of a unilateral revocation). The issue of revocation is not essential to the Miller ruling. With or without a right to revoke, the proviso in Article 50(3) means that the notice would put in train a process that makes withdrawal from the EU the outcome without further reference to Parliament.

    In short, the authors narrowly focus only on the legal and constitutional effects of triggering the Article 50(2) notice and ignore the consequences of such a notice, which, given the proviso in Article 50(3), cannot be ignored.

    An example of the authors’ myopia can be seen in this sentence:

    [quote]”Triggering Article 50 will do no more than initiate the negotiation process on the diplomatic (and international) plane, the outcome of which cannot be known.”[unquote]

    Except that the outcome IS knowable in advance. The proviso in Article 50(3) assures us of an outcome, and while the Article 50(2) notice is theoretically reversible (albeit there is no formal procedure for this), Article 50(3) is perfectly clear in this regard, stating that at the end of the notice period, the Member State withdraws from its treaty obligations (subject to a right to extend the notice period by unanimity in the Council).

    (ii). The legal nature of EU rights.

    The article makes a distinction between two different understandings of the relationship between EU law and English law. This is examined in the context of those EU laws that are enacted at the European level without transposition in the national legislatures – i.e. EU Regulations – as it is these laws, and the rights they create, that would cease to have effect should the UK withdraw from the EU (the other laws having already been transposed from the relevant directives). An example of an EU Regulation would be the European Payments Order.

    The Miller judges believe that EU Regulations are created as a result of powers delegated to the EU institutions by the ECA and have special constitutional status. Admittedly, this is a strained analysis, since surely it is the EU institutions that create the Regulations; but in a manner of speaking, it is true in that, from a UK perspective, without the ECA, the EU Regulations would mean nothing. Therefore, it is not over-strenuous to suggest that using Crown prerogative to withdraw from the Treaty without the consent of Parliament would be ultra vires, because it would in effect be the Crown using prerogative to change legal rights for which Parliament has enacted enabling legislation. If the Article 50(2) is triggered by the government using Crown prerogative alone, this would leave on the statute book a hollowed-out ECA, unrepealed, and have the effect of withdrawing fundamental EU rights without the consent or say of Parliament, which would be unconstitutional as Crown prerogative cannot be used to change domestic law.

    The authors argue in the contrary, that the ECA 1972 was a ‘conduit’ through which EU law flowed into English law and limited the scope of parliamentary action. Under this way of seeing things, the ECA was just an ordinary statute and all Parliament has to do is repeal it and EU law ceases to apply. It follows from this, the authors’ argue, that the Crown can issue the Article 50(2) notice without reference to Parliament as Parliament can perfectly well just repeal the ECA in its own right.

    I don’t consider the two arguments to be mutually exclusive, but the difficulty I have with what the authors say is that it implies that the treaty rights (what section 2(1) of the ECA calls ‘enforceable EU rights’) would exist without the ECA, since they are the result of treaties and diplomatic channels alone (and thus the result of Crown prerogative alone) and in so far as the ECA is relevant, it is only because the ECA happens to be the means for the enactment of the mechanisms that produce these rights. I don’t find that very convincing. Whether the rights somehow ‘flow through’ the ECA or are created by the ECA, they would not exist without the authority given by Parliament in the first place, and it must be good constitutional practice to insist that it is Parliament that gives its formal approval to the rescission of those rights, even if political realities mean that this is nothing more than an empty formality.

    I also don’t find the authors’ use of tax treaties to be very apt, as there is no comparison. Any domestic law-changing provisions in tax treaties (for example, fiscal measures resulting from a bilateral double taxation treaty) can only be enacted through Parliament, and where informal non-law changing treaty measures are enacted domestically by prerogative or put into effect administratively through the civil service, this is subject to the right of Parliament to legislate in those areas. This cannot be compared with the type of treaty rights the authors refer to, which Parliament has agreed shall not be transposed into domestic law and which have a qualified ‘supremacy’ over domestic law to the extent that Parliament is voluntarily acceding to the overall legislative framework.

    However, despite my reservations, I reiterate that the article is very good and prompts much further thought about a number of issues. Thank you for linking to it.

    • “The Miller judges believe that EU Regulations are created as a result of powers delegated to the EU institutions by the ECA and have special constitutional status.”
      Special constitutional status. You can say that again! Totally unconstitutional in my opinion (“foreign princes, prelates & potentates & all that”)!
      I agree with you that the notion that the 1972 ECA somehow passed powers up to the EU is “strained” to say the least. Other than that, my view on the legal position is clear – I haven’t a clue who is right. And I bet I’m in the majority.
      But in the world of realpolitik, just suppose Parliament were to vote against invoking Article 50.
      Wouldn’t that be interesting? What on Earth would happen then? Sit on our hands till 2020? Then what? Nigel for Prime Minister at the head of a UKIP government? It’s certainly going to be an interesting few years.
      Bottom line is this; by fair means or foul (most certainly the latter) they won’t let us leave. ‘They’ being the Establishment, the EU and all the rest of the gang.

      • I think we’ll leave – but it will be the soft exit wanted by the Establishment, i.e. into EFTA or at least still in the EEA.

    • It is a good article, and I accept your two reservations. The more I think about it, the more convinced I am that the High Court Judges ruled according to the law.

      The only objection I can find is to say that the Constitution has been changed by the introduction of referenda. These have upset the traditional notion that Parliament is the sole authority on the popular will. The people have been asked to decide on a single question, and it is for the governing institutions to take account of this.

      It would have been for the best had the Referendum Act contained words to this effect: “In the event of a vote to leave, the relevant Minister shall be at liberty to give the required notice to leave.” But since this was the reasonable intent of the Act, the Supreme Court may be able to construe those words into the Act – officious bystander rule and all that.

      Otherwise, the Miller Judgment is good law, and everything is up in the air.

      • “In the event of a vote to leave, the relevant Minister shall be at liberty to give the required notice to leave.” Haha they never expected to lose!
        We have had a number of referenda in recent years, none of which I can remember (except the one on PR). How were they implemented, or not, as the case may be?

        • When the result was in the affirmative (as in the Scottish and Welsh referenda on legislative devolution), the necessary measures were enacted by the UK Parliament.

          I’m not sure whether or not the Establishment (a heterogenous group anyway) expected to win. Some of the dimmer ones – for instance, the majority of Leave-supporting MPs, who with few exceptions seem to be lazy and stupid – probably assumed they would win easily and were shocked by the result, but I think the likes of Cameron and the brighter ones like him probably knew it would be close or that a defeat was likely.

          I think one of the things we have to accept, though we’re reluctant sometimes to admit it, is that the top people are very intelligent and will have formulated a game plan for all anticipated eventualities. As I have said repeatedly, Brexit is not disastrous for the Establishment. At worst, it’s just a set-back, and some of these people will even take the view that it presents new opportunities for them.

          Plan B works like this – if ‘we’ (i.e. the elite) lose the referendum and have to go down the Brexit route, then ‘we’ need to make sure that it’s a soft exit into some sort of status within EFTA/EEA so that we remain in the Single Market.

          Worst case scenario – ‘we’ have to exit the EEA/Single Market entirely, but ‘we’ negotiate some kind of bilateral deal with the EU that allows the UK to participate in the Single Market for a fee. Sell it to the British people on the basis of economic necessity. Easy, job done.

          The EU will be happy about Brexit because it removes a weak link in the chain in their geopolitical ambitions. As long as the UK, the homeland of anti-federalism, remained in the EU, there was no chance for the visionaries in Brussels to shift into top gear and federalise the institutions and fully integrate the bloc politically, socially, fiscally and economically. Now that goal is finally in sight – all they need to do is get rid of the UK. If I were more of a cynic, I might even suggest they had colluded with Cameron, and planned the whole thing.

          That’s not to say they wanted the UK to vote for Brexit, but it is to say that now that the UK has voted for Brexit, fresh opportunities present themselves for the Enemy Class. They are not beaten, they are just getting started. These people are clever and plan for different scenarios.

          • Yes, it was that Chinese bloke that said “Never under-estimate your enemies” I believe. As I see it, we always see things in perspective after the event, when we can look back on some innoccuous-sounding measure and say “Ah, THAT’S what that was all about”. The Architects of the Project, of course, know perfectly well where they are leading us, but we can only guess.
            Having said that, I have to disagree with you that “The EU will be happy about Brexit because it removes a weak link in the chain in their geopolitical ambitions.”
            I believe they need us in for financial and ideological reasons. They need our money, our fish etc, and they are on a mission to prise us away from the Anglosphere and into the warm Catholic bosom of Europe.
            Perhaps they might forego all of that, but what they will not countenance is the stampede for the exit that will ensue if we were permitted to leave. The culmination of all their dreams will evaporate overnight if we make a go of it.
            Don’t you think?

            • Remember how genuinely reluctant some of them were to let us join in the first place. De Gaulle in particular resisted UK entry. I think some of that was because, in the context of the 1950s/60s, the UK would have acted as a counter-weight to the Franco-German axis, so to speak. And eventually De Gaulle was shown to be right. I agree that there are major disadvantages and complications for the Brussels federalists if we leave, but there is also the major upside that once they’re shot of us, it removes the ring-leader of the Awkward Squad – this time, for good.

              Of course, you are right – if we are successful outside the EU, others may want to join us. On the other hand, Norway, Iceland and Switzerland already have status within the EEA but outside the EU, and they prosper and have done for decades, yet their successful example does not seem to prompt other Member States to want to leave. I think geopolitics and the basics of physical geography have to come into play here. Each Member State will be making different calculations, so it’s difficult to generalise. Some of these countries, like the Finns and the eastern Europeans, are fiercely prideful and independent, yet they will stay within the Brussels orbit because they don’t want to align with Moscow.

              The UK is unique among the Member States – we are an island with a very strong and ancient national identity, but at the same time, we have a globalist attitude, a global language, a liberal political tradition, a commercial, non-traditional society, mostly a common law legal system and we are set apart from Continental traditions and politics in other ways. We are sui generis in that we are geographically in Europe, but we are culturally not quite European. There is something ‘different’ about us that people often remark on but nobody – not even us – can quite put their finger on (though this equivocal ‘difference’ is perhaps more noticeable between the English and everybody else than with the Scottish, who are closer to Europe).

              We English have always been the fly in the ointment and I think once the Brussels clique had got over the shock of the vote, they will have decided that the UK needs to leave as soon as decently possible. But it will not be a clean break, they will want to keep us in the Single Market – and in that regard, the Miller ruling is manna from heaven for them.

              • “On the other hand, Norway, Iceland and Switzerland already have status within the EEA but outside the EU, and they prosper and have done for decades, yet their successful example does not seem to prompt other Member States to want to leave.”
                Yes it does! Most people throughout the EU, or at least a sizeable minority, would like nothing more than to be rid of Brussels, but their politicians won’t let them. That exact sentiment was quoted the other day by Colin Bullen who is, or was, touring Europe speaking to its citizens. I think it was a Greek who make that remark to him.
                Right across the western world there seems to be a huge contradiction between the views of the Plebs and those of the politicians.
                One reason we are ‘different’ from the rest of Europe is of course religion. European countries are used to being told what to do and indeed what to think by religious leaders. We are less so. That also engenders a different attitude to money – Protestant England believes there is nothing wrong with making money provided it is done honestly. Catholic Europe believes ‘filthy lucre’ is tainted from the outset, so a bit more corruption along the way won’t hurt. We have traditionally (till Blair at any rate) enjoyed a much higher standard of financial probity among public officials than our European neighbours.
                I am a great believer in the Anglosphere. As you say, we have a different way of looking at the world (well, you didn’t actually say that but you know what I mean!).

                • Yes, but my point still stands. The example of the non-EU states does not prompt other Member States to want to leave, no matter how popular leaving may be among ordinary people in those countries. You mean if the UK is successful outside the EU, then this could lead to political pressure within other Member States to leave, and it might, but I think other countries are going to be guided by their own priorities, just as we are.

                  I don’t know of anybody here in Britain who wanted to vote Leave because of the situation of Norway. In fact, if anything, Norway is unhelpful to the Leave case because any country within the EEA still has to adopt most of EU law in order to participate in the Single Market and be compliant (though it’s also true that these countries do not participate in certain harmful EU activities like the CAP).

                  Even Switzerland, which is outside the EEA altogether, still adopts EU laws. I’m less sure about Iceland. I think they have adopted far fewer laws than Norway, even though the two countries have very similar agreements with the EEA, but that’s probably more due to Iceland’s unique circumstances than anything else.

      • Yes, what this has exposed is that our political class are stupid and lazy – though I suppose we quite knew that already, and it applies to the ones who support Brexit as much as the Remainers, if not more so. What a mess.

        Your suggested solution is ingenious, but I don’t think it can work. Referenda do not change the constitution. That would only be the case if they were accepted as part of the decision-making procedure in the structure of government and used on a regular basis, which they aren’t. They are exceptional and have been reserved only for the most existential national questions where the moral support of the wider electorate is thought to be needed before Parliament can enact reform. But that is all it is, just a moral basis for acting one way or the other. It is not legally or constitutionally binding.

        Nothing about referenda erodes parliamentary sovereignty or is intended to, nor should they in my view (though I acknowledge the qualification you mention, that parliament can agree to abide by the result of a plebiscite conducted in the same parliamentary term).

        • Then let’s turn to the politics. The Conservative leadership has decided that leaving is in its electoral interests – so much so that big business whining is something worth facing down. Now, because of bad drafting, there is a problem. They have unlimited money, plus a few weeks. That gives them means, motive and opportunity to come up with a solution that fits all the constitutional niceties. If they can’t do that, we may be on the road to serious public disorder. It is likely that the Leavers would have just about put up with losing 52-48. Now they’ve won according to the pre-announced rules, they won’t take well to losing after all.

          For all manner of reasons, I’m hoping for a Trump win tomorrow. Keeping the peace in England is now among these reasons.

          • I think Trump might get it – many of his supporters are reluctant to admit it to pollsters. I’m in Florida at the moment which is pretty solid Trump territory (Central Fl anyway – don’t know about the South so much).
            But back to the case in point, I have to disagree with you when you say the Conservative leadership wants to leave the EU. Well, it depends what you mean by ‘leadership’ I suppose. Theresa May probably wants out, but for many decades it has been an absolute condition of holding that office that the Party leader must support EU integration. Look what happened to Margaret Thatcher when she threatened their dreams.
            Unless Mrs May is very much cleverer than her predecessors, she will not be permitted to jeopardise the Project.

          • Let me give you my thoughts by first explaining my reasoning on this issue.

            One reason I am resisting the temptation to bring my own bias into this and bend my legal analysis (such as it is) in favour of what appears (for now) to be the pro-Brexit argument, is that I think referenda are generally a bad idea.

            Switzerland provides us with an example of how it should be done, but the Swiss have a long tradition of direct democracy, going back, I believe, to the Middle Ages, so there can be no comparison, and any attempt to call their system in aid is surely naive. The honourable exception of the Swiss aside, I think referenda can constitute an abusive form of political democracy that amounts to dictatorship based on the manipulation of the mob.

            Of course, had the court ruled in favour of Brexit, I would probably have hardly passed comment on the matter, except to hope that the (inevitable) appeal by Ms. Miller to the next judicial level went the same way. As it is, the Miller court’s ruling has starkly shown up the flaws of the ad hoc strategy pursued by the Brexiters for two decades under the nominal leadership of UKIP.

            I agree that this situation could, potentially, turn into a crisis. I say ‘potentially’ because we are not there yet, and I don’t think we ever will be, as I think all of what we now see happening has already been factored into the elite’s calculations.

            At the moment, we are seeing the checks and balances of the system in operation and there is no reason to believe Brexit will not happen, only that it may be a softer exit in which we remain in the Single Market, and thus, for all intents and purposes, remain a globalist state subject to open borders and mass immigration as before. I believe that is the eventuality the Establishment have been hoping for all along – it’s what I call Plan B, and the Miller ruling clearly assists them because there will now be perfectly legitimate parliamentary pressure to angle the negotiations towards EFTA or EEA status. Theresa May talked about hard Brexit, but that’s just puff. She can’t be held to this, and she won’t be.

            I do not see how or why the Conservative backbenchers can oppose this, and only a tiny few Labour MPs will oppose this outcome (even though ideologically they have, if anything, more of a reason to than the Tories). So, from where I’m sitting, the politics are all planned out. There’s no ‘crisis’ at all.

            The only way this could become a ‘crisis’ is if Labour go mad and try to stop Brexit. But why would they want to do that when they already have Plan B on a plate? But let’s say they do, then yes, you have your crisis and things could get very interesting indeed. If that happens, we will find out what the British people are made of – I suspect they’re made of wet cardboard and Labour will still be the first- or second-placed party at the 2020 general election.

            As for Trump, I don’t think he is a significant factor….in anything. He is a neo-conservative dressed in Nationalistic clothes. He will toe the line – he’s just waiting for them to hand him a script and an auto-cue. His significance is in not what he will do, but in what he won’t do, and in the metapolitical tone he is setting.

            Of course, I would love to be wrong about all this and to watch a hard Brexit and a genuinely American nationalist Trump administration, and witness the Anglophone world leave behind liberal globalism completely – but I highly doubt it will be so easy.

            • “As it is, the Miller court’s ruling has starkly shown up the flaws of the ad hoc strategy pursued by the Brexiters for two decades under the nominal leadership of UKIP.”
              This is not actually true. UKIP’s position was always to leave the EU by “Parliamentary means and Parliamentary means alone”. We fought against the Referendum Party in1997. I was personally in favour of a referendum on Maastricht back in 1992, but by the time of the 1997 election I was firmly opposed to one, for the simple reason that if it went the wrong way it would all be over. Everybody seems to have forgotten that the sole manifesto commitment of the Referendum Party in 1997 was to hold a referendum ON THE MAASTRICHT TREATY (which had by then been in force for five years!). This was in their Statement of Aims. They didn’t take a view on the outcome of the vote, which I felt was highly dangerous.
              Then in 2001 Paul Sykes put a lot of money into UKIP’s campaign, on condition that we put a call for a referendum into our manifesto. This departure caused a lot of upset within UKIP, and not a few resignations. I was personally opposed to a referendum but went along with it as it was a good election ploy.
              As it happens, and I believe more by luck than judgement, we not only got a referendum, but we got the result we wanted (for what it’s worth!). But imagine if it had gone the way everybody expected.
              I believe the ramifications of a Trump Presidency (which may well happen) are over-stated. He is running for the office of President, not Dictator. I am mindful of what Harry Truman said about Eisenhower; “Poor old Ike. He’s a soldier, and he’s used to giving orders and having them obeyed. When he gets to the White House, he’ll be saying ‘Do this!’ and ‘Do that!’, and nothing will happen”. Trump is likewise used to giving orders. It won’t work in the White House, as he will learn if he wins.
              I believe America is so divided it can no longer be governed as one country. The Progressives want to re-make the country in the image of socialist Europe, and the Rednecks are determined to stop them. I don’t see how the two can ever be reconciled. Me? I’m with the Rednecks. But I don’t get a vote!

              • Whatever the exact history of it all (which I don’t see as very important), the essential point I make is true – that UKIP has, for very many years, supported a referendum as the means for leaving the EU. Even the more cautious of the Leavers, like Dr. North, have enthusiastically supported a referendum and one of the most bitter controversies within UKIP has been over who should take the credit for it.

                However, I am not going to say this was all a mistake. As you rightly say, it was necessary to force the issue, and it may be that a referendum was the only way. Had we waited it out until a genuinely nationalist or conservative formation could secure a significant presence in Parliament, the demographics might have overtaken the situation and we could have ended up with nothing.

                But I do take the view that referenda can be undemocratic and are not to be commended.

                • I know it’s pedantic, and even Nigel Farage has taken to saying he’s fought all his life for a referendum, but it’s simply not true. Otherwise UKIP would have folded into the Referendum Party. The main plank of UKIP’s manifesto has always been to repeal the 1972 Act. The call for a referendum has gradually supplanted that policy in recent years.
                  To be truthful I never thought there was a hope in Hell of getting out by Parliamentary means (or by a referendum!), but what do you do? Fight for what you believe in or sit back and do nothing?

                  • In that case, they’ve obviously abandoned the parliamentary approach because they knew it would not work, given that: (i). they would never secure enough seats under the FPTP system to secure influence; and (ii). the Conservative Party became more liberal and pro-EU under Cameron.

                    Can you pinpoint exactly when UKIP changed tact?

                    I thought it was many years ago (I base this on what was told to me by somebody I know who was quite high up in the voluntary wing of UKIP).

                    The reason I ask is that I am wondering if the change came before or after the AV referendum.

                    • Paul Sykes came on board at the last minute just before the election and offered money on condition we would commit to a referendum. This was a new departure and upset a lot of people in UKIP, some of whom left the Party. I didn’t like it, as I did not want to be responsible for a policy that might end up locking us into the EU for ever more, but I went along with it as it was a good electoral ploy and we had no chance of being able to implement it!
                      Sykes paid for an election leaflet calling for a referendum. As far as I know the referendum was Mr Sykes’ preferred method, and he just said if you want my money you’ll do it my way, which is fair enough.
                      It is just possible that my memory is at fault and it might have been the 2005 election, but I’m fairly sure it was 2001 – Sykes’ intervention was very much last-minute, when some election material had already gone out. As with everything UKIP has ever done, it was due solely to the efforts of Nigel Farage working behind the scenes.
                      I don’t know who else you’ve been talking to, but you are quite welcome to quote me on any of this.

                  • If it was changed in 2001, then UKIP have pursued the policy for many years. Not “two decades”, I’ll grant you that was my mistake, but 16 years is long enough for it to be regarded as an established policy – regardless of the reasons for its adoption originally.

                    • I still don’t recollect it that way; the idea of a referendum was a temporary expedient ‘forced’ upon us for the 2001 election by Sykes. Thereafter, as far as I am aware, UKIP’s policy reverted to repeal of the ECA.
                      One thing I do remember is vigorously questioning UKIP’s agenda post-Lisbon. There seemed to be little point in campaigning to repeal the 1972 Act if that was no longer going to make any difference. I remember asking the question many times but never getting a satisfactory answer. I think there was a certain woolliness about UKIP’s aims – we wanted out of the EU of course, but we didn’t, post-Lisbon, seem to have a clear objective that would achieve that end.
                      My recollection is that the referendum question re-surfaced after Blair reneged on his promise to hold a referendum on the Constitution. Again, my recollection is that UKIP pressed for a referendum – an ‘in-out referendum this time – as a means of ‘bouncing’ Cameron into holding one. If that was indeed the strategy, it clearly worked. But I don’t think it was ever formally adopted as a philosophical position – we just sort of drifted into it.
                      But the one thing that didn’t happen, as far as I am aware, is that UKIP said “Ok, we’re abandoning our stated aim of repealing the ECA; our principle objective henceforth is to hold an in-out referendum”.
                      There have been so many twists and turns along the way it is hard to keep track; Blair said we weren’t going to hold a referendum on the Constitution, then we were, then we weren’t; Clegg called for an in-out referendum then opposed it. Etc etc etc.

        • Tom Rogers, you might find this article interesting: “https://www.headoflegal.com/2016/11/04/why-the-high-court-got-the-law-wrong-about-brexit/>Why the High Court got the law wrong about Brexit.

          The author is a former Government lawyer and an ardent Remainer.

          • I’ve seen that – I don’t agree with the author’s conclusions.

    • Tom, you might be interested in the arguments of Professor Adam Tomkins MSP, Carl Gardner, both of whom support Professor Elliott’s view, and Mikołaj Barczentewicz, who writes about the retrospective consequences of Miller if it is upheld as good law. They are all great reading.

      What has struck me, as someone who has enthusiastically followed the academic commentary on the High Court judgment, is that the greatest bulk of constitutional scholars are of the opinion that it was wrongly decided (à la Elliott), but seem to have scant hope that the Supreme Court will overturn it.

      • This (your last sentence) is something that has been intriguing me. It seems to me, as a layman, that the issue is finely balanced, yet it is a forgone conclusion, according to the media, that the Supreme Court will find against the government. Does this not tell us that there is something profoundly wrong here? Are they saying the Court is so biased that its verdicts can be pre-judged? My own opinion is that this is probably true – that, like the ECJ, it is a political court which will always promote EU integration. If I am correct, (and I have no evidence of this other than those remarks by Lady Wotsername in Malaysia the other day) then this is a serious allegation. And if I am wrong, then how come the media are united in making such a prejudicial claim, when there is disagreement amongst the most learned laywers about the merits of the case? What is going on?

  • How was the Constitutional Law blog article found? I actually e-mailed Prof Elliot to direct him to the article stating that parliamentary sovereignty does not exist. I urged him to submit his own article to the LA or contribute to the fascinating discussion beneath the aforementioned article.

    Maybe he read my e-mail and heeded my advice or Dr Gabb came across Elliot’s own blogpost first.

    • I found it first

      • This</a href> article by constitutional scholar Lord Norton might be worth reposting on the LA blog as an article too.

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