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Series: Constitutional Law Research Series
In this paper, Professor Phillipson leaves aside the doctrinal arguments in Miller and instead considers the legal dispute through the lens of the underlying argument between legal and political constitutionalists over the judicial role and the extent of judicial power in the contemporary constitution. The paper argues that the tendency of most political constitutionalists (Keith Ewing was a notable exception) to support the Government side was a mistake as judged by the values of political constitutionalism itself. It concludes that Miller showed a dangerous tendency for scepticism about judicial power to collapse into an uncritical embrace of Executive power.
Professor Gavin Phillipson has held a Chair in public law Durham University since 2007. He was one of the leading contributors to the debate on Miller: his article 'A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament’ (2016) 79(6) Modern Law Review 1064 was cited in the Supreme Court, while his blogpost ‘The Miller Case, Part 1: A Response to Some Criticisms’, U.K. Const. L. Blog (25th Nov 2016 was placed in the court bundle and acknowledged by several counsel in the case as having influenced their submissions. He also provided expert commentary for the extensive coverage of the case by the BBC and other national and international media. His forthcoming work on the case includes: ‘EU law as an agent of national constitutional change: Miller v Secretary of State for Exiting the European Union (2017) (forthcoming) Yearbook of European Law and ‘Would use of the prerogative to denounce the ECHR ‘frustrate’ the Human Rights Act? Lessons from Miller’  (Special Edition - forthcoming) Public Law – with Alison Young.
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6.00pm - 8.00pmWednesday 1st November 2017
CLS Research Events