Judicial Review and the Politico-legal Constitution

Abstract

The decision of the British people in 2016 that the U.K. should leave the European Union has inaugurated a period of intense debate concerning the future development of the U.K.’s notoriously ‘flexible’ constitutional arrangements and specifically the relationship between Montesquieu’s three branches of government, the legislature, the executive and the judiciary. The decisions of the U.K. Supreme Court in R. (Miller) v. Secretary of State for Exiting the European Union and R. (Miller) v. Prime Minister provoked widespread anger and political commitments to curb judicial overreach. This paper reflects on the implications for the future development of judicial review in U.K. constitutionalism. It notes that attempts to mine the common law heritage for constitutional principles may indicate attempts by the U.K. Supreme Court to anticipate U.K. withdrawal from the jurisdiction of the European courts but suggests that in a turbulent political climate, j udicial review will do well to refocus away from the constitutionalism of recent years in favour of a more traditionally restrained role that will demonstrate respect for the political choices of the electorate’s chosen representatives