Brexit — Legal and Political Fault Lines

Paul Daly April 27, 2017

I have posted an extended note on the UK Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union on SSRN. My analytical framework is the one I developed in this post, which I wrote between the first-instance and Supreme Court decisions. I was initially quite positive about the Supreme Court’s decision, but became increasingly sceptical about its merits as I worked on this note. I still think there might be something to be said for the Supreme Court’s central conclusion — that Article 50 could not be triggered without legislative authorisation — but the reasoning is, on close analysis, unsatisfactory.

Finding a home in print for an extended note of this nature, especially several months after the decision, is a tricky proposition; any suggestions are welcome as, indeed, are comments on the substance of the note.

Here is the abstract:

The argument I will advance in this extended note on the United Kingdom Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union is that the decision and its aftermath can be usefully understood by reference to three fault lines: between form and substance (Part I); between the old constitution and the new constitution (Part II); and between political accountability and legal accountability (Part III). The decision and the academic debate the litigation provoked revealed that British lawyers are deeply divided about how to resolve important questions about the relationship between Parliament, the executive and the courts. And the legislative response to Miller reveals that the fault lines can operate differently in a political context than they do in a legal context (Part IV).

Drawing the fault lines I have described and using them as analytical tools achieves three objectives.

First, using the fault lines as analytical tools enhances the legal community’s understanding of Miller by placing the resolution of the issue relating to the triggering of Article 50 in a broader context. The litigation raised important questions about the way British lawyers understand their constitution, in particular, how to accommodate constitutional innovations such as EU membership, referendums and devolution.

Second, illustrating that important tensions are to be found in the decision of the majority of the Court. For instance, on the juridical effect of triggering Article 50, substance trumped form, but when it came to the impact of triggering Article 50 on the devolution arrangements, form trumped substance; the ‘constitutional’ nature of the 1972 Act weighed heavily in the balance, but other constitutional innovations, such as referendums and devolution, exerted next to no weight at all; and although the executive’s political accountability as a matter of constitutional convention was deemed to be insufficient justification for avoiding parliamentary authorisation for the triggering of Article 50, the enforcement of constitutional conventions relating to devolution was left entirely to political actors. The fault lines thus expose important tensions in the reasoning of the Miller majority.

Third, demonstrating that these fault lines are political as well as legal. The relationship between form and substance, old and new and political and legal shaped Parliament’s response to Miller just as much as it shaped the judgments of the Court and the first-instance courts. In the political arena, interestingly, form triumphed over substance, the referendum result carried decisive weight, and confidence about the effectiveness of conventional methods of parliamentary oversight of the executive outweighed concerns about the need for legal protection of the interests of individuals or Parliament. This does not represent an additional criticism of the judges. I mean only to highlight how the legislative response to Miller demonstrates that, under Britain’s constitutional arrangements, legal and political actors do not respond in the same way to the same stimuli. This phenomenon may not be unique to Britain, but if so, Miller is a striking example that ought to be of interest to constitutional lawyers in other jurisdictions.

Download the paper here.

Readers may also be interested in Professor Mark Elliott’s very critical scholarly analysis of Miller. You can download Professor Elliott’s paper from SSRN. Here is the abstract:

In R (Miller) v Secretary of State for Exiting the European Union, the Supreme Court of the United Kingdom (a) held that the UK Government had no prerogative power to initiate the formal process whereby the UK will withdraw from the EU and (b) declined to recognise any requirement that the devolved legislatures’ consent be obtained in respect of legislation authorising the Government to commence the withdrawal process. This article critically examines Miller, arguing that the majority’s analysis veers between unwarranted muscularity in relation to the prerogative issue and unnecessary conservatism as regards the devolution issue. The article goes on to argue that while the majority judgment’s restrictive approach to the prerogative may be viewed as a progressive victory for constitutional principle, such an evaluation can be sustained only if a set of relatively traditional constitutional premises are adopted to begin with. The article also contends that the general approach adopted by the majority is problematic, given its willingness to invoke arguments of constitutional principle without adequately engaging with questions about what the pertinent principles are, and argues that such an intellectually lackadaisical mode of constitutional adjudication is to be deprecated.

Updated April 27, 2017 at 07:23.