Gina Miller Flashcards
what can the Gina Miller case apply to?
executive powers
The judiciary
referendums
civil rights
The Constitution
democracy
devolution
Parliament
GINA MILLER: how does the case relate to executive powers?
The government argued that it was entitled to use its prerogative powers to give effect to the Democratic will of the British people and trigger Article 50 to begin the process of leaving the EU
it maintained that the rights and obligations created by EU membership had arrived as a result of treaties signed since 1972 by successive governments using their prerogative powers
therefore, prerogative powers could also be used to take Britain out of the EU
the uncodified constitution means there is no single document setting out limits of executive powers, but this case did define executive powers to some extent by ruling that Article 50 must be triggered by Parliament and cannot be triggered using prerogative powers
GINA MILLER: how does the case relate to the judiciary?
The Supreme Court are uniquely placed to give such a judgement due to their vast range of legal aid and constitutional expertise
justices always explain the reasons behind their decisions and can be relied upon to make impartial rulings
however, some suggest that Brexit is a highly political matter so unelected and unaccountable judges should not be setting themselves against the democratic voice of the people
GINA MILLER: how does the case relate to referendums?
The 2015 legislation that paved the way for the Brexit referendum did not explicitly state that the result would be legally binding
referendums are traditionally regarded as advisory although it is unlikely that the government would disregard the outcome of such a vote
GINA MILLER: how does the case relate to civil rights?
affects everyone’s rights, needs to be decided by judges
GINA MILLER: how does the case relate to the Constitution?
1998 Sewel convention
The UK constitution is not codified, there is no single document setting out the limits of executive power or what to do in a referendum
so the Supreme Court has had to consider a range of unwritten conventions and common-law rulings
leaving the EU is a huge constitutional change, so should go through Parliament
the most constitutional and important case in modern history
GINA MILLER: how does the case relate to democracy?
the Brexit referendum was a form of direct democracy and expressed the democratic will of the people
The case shows a conflict between representative and Direct democracy
arguably the process of leaving the EU should be triggered by Parliament as we have elected them to represent us
hard to define how direct democracy fits into representative democracy — which is more important? When there is a clash between the two which should be followed?
GINA MILLER: how does the case relate to devolution?
the Northern Ireland government declared its support for Theresa May‘s position but the Scottish and Welsh governments argued that they must be consulted because Brexit affects matters that have been devolved to them
Nicola Sturgeon was disappointed by the decision as it made clear that the Scottish government would not be consulted before the Brexit process began
1998 Sewel Convention — Westminster will not normally legislate on devolved matters without the consent of devolved bodies
Brexit is controversial because 62% of Scots voted to stay in the EU, Nicola Sturgeon has argued that Scotland should be treated differently in the Brexit process because of this
this has given rise to the issue of Scottish independence again
GINA MILLER: how does this case relate to Parliament?
Miller’s lawyers argued that according to the principle of Parliamentary sovereignty, explicit Parliamentary authority is necessary to authorise the removal of rights introduced into EU law by the 1972 European Communities Act
The case reaffirmed Parliamentary sovereignty
what did the government argue?
The government argued that it was entitled to use it prerogative powers to give effect to the Democratic will of the British people, as expressed in the referendum
it’s maintained that the rights and obligations created by EU membership had arrived as a result of treaties signed since 1972 by successive governments, using their prerogative powers
what did Gina Miller’s lawyers argue?
Gina Miller’s lawyers denied that this argument was valid
they argued that, according to the principle of Parliamentary sovereignty, explicit Parliamentary authority was necessary to authorise the removal of rights introduced into UK law by the 1972 European Communities Act
what was the problem regarding the 2015 legislation that paved the way for the referendum?
One problem was that the 2015 legislation that paved the way for the referendum did not explicitly state that its result would be legally binding
Referendums have traditionally been regarded as advisory although in practice, for political reasons, no government would disregard the outcome of such a vote
however, Supreme Court President Lord Neuberger noted that in the case of the 2011 referendum on whether the UK should adopt the Alternative Vote electoral system, the legislation did make it clear that the result would be binding
The implication was that if the government had worded the bill more carefully, the case would never have come to court
what is a complication that has arisen as a result of devolution?
A further complication arose as a result of devolution
The Northern Ireland government declared its support for Theresa May‘s position, but the Scottish and Welsh governments argued that they must be consulted because Brexit affects matters that have been devolved to them
they cite the 1998 Sewel Convention, which states that Westminster will not normally legislate on devolved matters without the consent of the devolved bodies
in 2016 this convention was given statutory authority for Scotland
why is Brexit controversial in Scotland?
Brexit is particularly controversial in Scotland because 62% voted to stay in the EU
Nicola Sturgeon‘s government has argued that Scotland should be treated differently from England in the Brexit process because of this
what do these issues point to about the UK’s constitution?
these issues point to an underlying feature of the U.K.’s constitution
it is not codified, there is no single document setting out the limits of executive power, and so the Supreme Court has had to consider a range of unwritten conventions and common-law rulings
