Devotion to Legalism: On the Brexit Case

Published date01 July 2017
DOIhttp://doi.org/10.1111/1468-2230.12280
Date01 July 2017
a bottle for politicians to decipher, and for future courts to re-open when
they come to assessing the legal and constitutional impact of amending the
devolution legislation with respect to the EU. The UKSC’s approach provides
further evidence for the aptness of Hegel’s famous remark about the owl of
Minerva spreading her wings only with the falling of the dusk.67 It is only as
the UK’s membership of the EU comes to an end that the domestic courts
are starting to characterise EU law in line with the Court of Justice’s own
understanding. Conversely, as the UK starts to re-constitute itself outside the
EU, domestic politicians are being called on to square Westminster’s ancient
model of government in accordance with the contemporary requirements of
constitutional pluralism. Failure to do so is likely to shatter the United Kingdom
as a state. The Government may have secured a unanimous win on the legality
of the domestic power balance but time will reveal it to be little more than a
Pyrrhic victory.
Devotion to Legalism: On the Brexit Case
Thomas Poole
This note examines the UK Supreme Court’s judgment in the Brexit case, Miller vSecretary
of State for Exiting the European Union. The case upheld the decision of the High Court,
which rejected the claim that the foreign affairs prerogative provided a legal basis for giving
notice to EU institutions of the UK’s intention to withdraw from the EU. But the Supreme
Court’s preferred basis for dismissing that claim rested on the more general proposition that
significant constitutional change can only be effected by statute. This position offers the germs
of a jurisprudence of constitutional change and was substantiated by means of an analysis of
Parliament’s dual capacity as legislator and constituent agent. Miller also includes important and
potentially innovative dicta on the relationship between international and domestic sources of
law.
It is no doubt crudely reductionist to see argument in a constitutional order in
terms of variations on a single theme – ‘liberty’ in the case of the United States,
‘ever closer union’ for the EU, ‘the Republic’ in France and so on. But students
of the British constitution may be forgiven for falling into the trap such is the
pull of parliamentary sovereignty, a dominant theme if ever there was one. The
Article 50 litigation, recently concluded in the UK Supreme Court (UKSC),
does little to dispel this impression, so persistently is the doctrine invoked. For
all this surface familiarity the UKSC judgment contains innovative elements,
notably on constitutional change and the status of international law in domestic
legal order. R (Miller) vSecretary of State for Exiting the European Union1(Miller)
67 G. W. F. Hegel, Grundlinien der Philosophie des Rechts (1821) (Frankfurt: Suhrkamp, 1970) 28.
London School of Economics and Political Science. I would like to thank Robert Craig, Yaniv
Roznai and the anonymous referee for their comments on an earlier draft.
1R (Miller) vSecretary of State for Exiting the European Union [2017] UKSC 5.
696 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(4) MLR 685–745
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