Lessons for the government from Miller I and the Scottish Continuity Bill Case

Abstract

In the United Kingdom (UK), tensions between the executive and the judiciary reignited recently when the government launched a thinly veiled ‘attack’ on the courts in an ‘Independent Review of Administrative Law’ (IRAL). 1 Largely understood to have been triggered by the government’s defeats in the Miller cases,2 the IRAL seems intended to limit the availability of judicial review against the government. 3 This article revisits some (unpublished) arguments made by the author at the time of the Miller I judgment about its true driving force.4 It also considers a similar impulse in the Scottish Continuity Bill case5 that was considered around the same time.6 It argues that the Supreme Court’s procedural protections of EU-derived rights and the devolution settlement with Scotland in these cases represent a threat to the executive government. This is because these cases make it more difficult for the government to overcome the common law constitution without proper Parliamentary scrutiny.