The holding of the majority in Miller that section 28(8) of the Scotland Act 1998, which echoes the wording of the Sewel Convention, creates no legal obligation on the UK Parliament to seek the consent of the Scottish Parliament before passing legislation to leave the European Union was remarkably underdeveloped in comparison with its commendably clear treatment of the main questions concerning the prerogative power.
The majority held that section 28(8) was not a legal rule, but merely the acknowledgment of a convention, and so compliance with section 28(8) by the UK government was not a matter for the Court [148-149]. Paragraph 148 is the crucial paragraph:
As the Advocate General submitted, by such provisions, the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it…
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