The space between ordinary and constitutional law

On 3 November 2016, the Queen’s Bench Division of the High Court of England and Wales issued its judgement in R(Miller) v Secretary of State for Exiting the EU. The judgement, later affirmed by the Supreme Court, was characterized by very strong constitutional language. ¹ After stating that the United Kingdom “does not have a constitution to be found entirely in a written document”, ² the court expressed that this was not the same as not having “a constitution or constitutional law”. ³ Part of the constitution, the court stated, “is reflected in fundamental rules of law recognized by both Parliament and the courts”. ⁴ Other parts are “written, in the form of statutes which have particular constitutional importance”. ⁵ As courts in any constitutional democracy, English courts “have a constitutional duty fundamental to the rule of law in a democratic state to enforce rules of constitutional law in the same way as the courts enforce other laws”. ⁶ Since the question involved in the proceedings was framed as requiring the court “to apply the constitutional law of the United Kingdom” to determine whether the Crown could use the prerogative to trigger the Article 50 process for withdrawal from the European Union, the court proceeded to identify the relevant constitutional content. ⁷