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 prerogative did not provide 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 drawing 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.
Samuel Ley (Mon,) studied this question.