The Legacy of Brexit in the Courts: Ship-Money, Formalism, and the Value of Choice?
| Author | Samuel Ley |
| Position | Full-time BPTC Student and Denning Scholar of Lincoln's Inn, having graduated with First Class Honours in Law (2014-2017) |
| Pages | 85-113 |
2018
LSE LAW REVIEW
85
The Legacy of Brexit in the Courts: Ship-Money,
Formalism, and the Value of Choice?
Samuel Ley*
ABSTRACT
This note critically examines the UK Supreme Court’s judgment in R (Miller) v Secretary of
State for Exiting the European Union. The majority decision upheld the finding of the
Divisional Court that the Government’s foreign affairs pr erogative did not provid e a legal basis
for giving notice under Article 50 TEU to EU institutions of the UK’s intention to withdraw
from the EU. The Divisional Court was held out by many as ‘the enemies of the people’ for
seeking to frustrate the will of the people as expressed in the National Referendum of 23 June
2016. The majority in the Supreme Court has similarly been heavily criticised by academics and
the minority for pursuing an ‘exercise in pure legal formalism’. By dr awing on case law from
1637 and pioneering theoretical work on the fair attribution of responsibility, this note provides
a comprehensive defence of the Supreme Court’s decision in Miller to finally displace the critique
of legal formalism.
INTRODUCTION
On 23 June 2016, a UK-wide referendum was held under the European U nion
Referendum Act 2015. It produced an overall majority in f avour of leaving the
EU. With this vote, a process of vast social, lega l, economic, and political change
was initiated. Against this background, the Government sought to notify the EU
institutions of its intention to withdraw the UK from the Union. Article 50 of the
Treaty on European Union (‘TEU’), provides that ‘Any member state may decide
to withdraw from the Union in accordance with its own constitutional
requirements.’ It was the meaning of those ‘constitutional requirements’, and
* Full-time BPTC Student and Denning Scholar of Lincoln’s Inn, having graduated from
the London School of Economics and Political Science (LSE) with First Class Honours
in Law (2014 – 2017). I would like to thank Professor Thomas Poole of LSE for his
constructive feedback on an earlier draft. All errors remain my own.
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The Legacy of Brexit in the Courts
Vol. 3
whether the Government could lawfully trigger Article 50 without the consent of
Parliament, as it so claimed, which concerned the Supreme Court (‘UKSC’) in
Miller.
1
The Court handed its decision down on 24 January 2017. Enough time
has now passed, and enough dust has settled, to take stock of the decision’s merits.
This article seeks to make a belated, yet unique, contribution to what has
turned into a rather sour public debate on the merits of the Miller deci sion. It
argues that, contrary to many voices suggesting otherwise, the judgment was not
excessively ‘formalistic’ and the critique of ‘formalism’ falls short in all its different
guises. In Miller, the UKSC emphasised its role as an autonomous constitutional
player. Left to pick up the pieces of a fractured political relationship, the UKSC
sought to compensate for perceived or actual weaknesses of the executive and the
legislature, thereby promoting circumstances best conducive to the exercise of
their rational constitutional agency. To these ends, the reasoning of the majority
in the UKSC will be defended.
In making these submissions, this article will first set out the de cision in
Miller before directing the reader’s gaze back in time to a case decided by the Court
of E xchequer in 1637.
2
In doing so, this article will draw on certain strands of
theoretical reasoning: one well-trodden in the public law discourse, the other
hitherto under-explored.
3
Under such guidance, one is able to better understand
the constitutional implications of Miller and how the latter ought to govern future
legal changes.
I. MILLER
In the Divisional Court
4
the debate was framed as a matter of two questions: first,
could the Government trigger Article 50 in the exercise of its foreign affairs
prerogative and second, was there any statutory basis for the executive to trigger
Article 50 TEU? In answe ring the first question, the Divi sional Court held that
1
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 , [2017] 2 WLR
583 (SC).
2
R v John Hampden (The Cas e of Ship-Money) (1637 ) 3 Howell State Tri als 825.
3
On the latter, see eg Emmanuel Voyiakis, Private Law and the Value of C hoice (Hart
Publishing 2017).
4
R (Miller and Dos Santos) v Secretary of State for Exiting the European Union [2016] EWHC 2768
(Admin) in the Divisional Court before Lord Thomas CJ, Sir Terence Etherton MR, and
Sales LJ.
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