One interesting finding in Miller is that it appears to recognise the Sewel Convention as a new form of constitutional convention; one that is legislatively entrenched but remains a convention rather than becoming a legal rule.
This aspect of the Court’s judgment raises more questions than it answers. It would have been helpful for them to consider the nature and significance of conventions as constitutional norms that are neither political practice nor legal rule. In respect of the Sewel Convention they arguably should have set out the effect of legislative entrenchment, if any. Furthermore it remains unclear whether the Convention is a “constitutional requirement” for the purposes of Art. 50(1) of the Treaty on European Union.
However, I want to focus here on the narrower issue of the Courts reasoning in determining that the Sewel Convention has not been converted into a legal rule, and particularly the claim that…
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