Mixed Messages in Bottles: the European Union, Devolution, and the Future of the Constitution
| Published date | 01 July 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12279 |
| Author | Jo Eric Khushal Murkens |
| Date | 01 July 2017 |
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CASES
A special section on R (Miller) vSecretary of State
for Exiting the European Union
Mixed Messages in Bottles: the European Union,
Devolution, and the Future of the Constitution
Jo Eric Khushal Murkens∗
An unprecedented eleven-member UK Supreme Court decided R (Miller) vSecretary of State
for Exiting the European Union on 24 January 2017. The Government’s argument, that it could
start the process of withdrawing from the EU using a prerogative power instead of an Act of
Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also
secured a unanimous verdict that it did not need the consent from the devolved legislatures in
Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the
judicial argumentation in light of Philip Bobbitt’s six modalities of constitutional argument, five
of which feature, and one of which ought to have featured, in this seminal case.
INTRODUCTION
The highly anticipated decision by the United Kingdom Supreme Court
(UKSC) in R (Miller) vSecretary of State for Exiting the European Union1(Miller)
comes at a critical constitutional moment. Winding up the UK’s existing rela-
tionship with the EU will also alter the politically sensitive terms and conditions
of the devolution settlement between the centre and the regions. It will take
years for the full extent of the technical details and political consequences
to be worked out, if they ever are. For now, the UKSC was called upon to
provide clarity over two considerations: Westminster’s constitutional entangle-
ment with the EU and with the devolved legislatures. The UKSC reached the
same conclusions as the Divisional Court’s ruling on 3 November 2016 with
respect to Article 50 of the Treaty on European Union (TEU), but it did so
from a completely different starting point. With respect to EU law, the UKSC
makes an unprecedented and audacious statement. With respect to devolution,
however, it passes up on a pioneering opportunity for the UK’s quasi-federal
constitution. It is part landmark ruling, and part dispir iting wavering. The im-
plications of both aspects of the Court’s intervention will be re-visited for years
to come.
I wish to discuss Miller as an example of the different types of constitutional
reasoning that were explored by the US scholar Philip Bobbitt in his 1991 book
∗Department of Law, London School of Economics and Political Science. I am grateful to Colin
Murray, Alison Young and the anonymous reviewer for their constructive comments. All errors are
mine.
1R (Miller) vSecretary of State for Exiting the European Union [2017] UKSC 5.
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(4) MLR 685–745
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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