POSTPONED: Brexit, The Courts and Dreams of Empire

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This event will explore the notions of the UK Supreme Court and the Constitution in light of Brexit as well as Brexit through the Lenses of Empire with Reflections on Franchise and Citizenship.

The UK Supreme Court, the Constitution and Brexit

After the EU referendum result in June 2016 the UK government proposed to use the royal prerogative to leave the EU by triggering Article 50 of the Lisbon Treaty. Gina Miller challenged in court the right of the Government to use an ancient power of the Crown to leave the EU instead of seeking an Act of Parliament to authorise it.

The Supreme Court gave its judgment in January 2017 (Miller [2017] UKSC 5). The case has been described repeatedly by commentators as ‘the case of the century’ and it is true that it involves many of the key elements of the UK constitution - the Crown, the royal prerogative, parliamentary sovereignty, devolution and conventions. In the febrile political atmosphere following the referendum result the outcome of the case was seen as of major political consequence. The government lost the case but achieved its plan by other means. Nonetheless, the judgments in this case reveal how the Supreme Court performs as a constitutional court in a common law system without a codified constitution.

The paraphernalia of the UK constitution has a distinctly medieval quality be it that of the Crown as a corporation sole or the arcane aspects of the royal prerogative. These concepts were circulated across the globe wherever Britain wielded power. At the end of empire the UK turned to membership of the European Union to save itself from stagnation and torpor. Whereas the EU created a new legal order the analysis in the Miller case of the government’s domestic power to leave the EU is couched in concepts little changed from the 19th century.

Brexit through the Lenses of Empire: Reflections on Franchise and Citizenship

The right to vote is at the heart of the notion of citizenship. To understand the premises and implications of Brexit, it is of fundamental importance to explain how the law has regulated suffrage in the referendum. The statutory definition of franchise in the Brexit referendum mirrored the legal position on franchise for general elections in the United Kingdom. As such, European Union citizenship were excluded from voting in the referendum, while Irish and Commonwealth citizens were allowed to vote. The issue of franchise illuminates the genealogy and development of British citizenship, which has been historically and legally constructed through the British Empire – and to a great degree remained untouched by the country's membership to the European Union.


Sebastian Payne is President of the United Kingdom Constitutional Law Association and a Senior Lecturer in Public Law at the Kent Law School and a Barrister of the Inner Temple. He is an Associate Fellow of the Royal United Services Institute and the Legal Editor of the RUSI series, Documents on British Foreign and Security Policy. As well as publishing on the law relating to terrorism he is the editor (with Professor Maurice Sunkin) of The Nature of the Crown (Oxford University Press 1999). He was invited as an expert on the Royal Prerogative to give evidence to the inquiry into war powers conducted by the House of Lords Select Committee on the Constitution (Waging War: Parliament’s Role and Responsibility 15th Report of Session 2005-06 HL Papers 236 I & II). In 2008 he was invited to give evidence to the Joint Committee on the Draft Constitutional Renewal Bill (Draft Constitutional Renewal Bill, Report of Session 2007-8 HL Papers 166 I & II, HC Papers 551 I & II). In March 2011 he gave evidence to the House of Commons Political and Constitutional Reform Committee (Parliament’s role in conflict decisions 8th Report of Session 2010-2012 HC Paper 923) and again to the same committee in October 2013. He is currently researching the way the UK Supreme Court functions as a constitutional court in a common law system without a codified constitution.

Dr Mara Malagodi is a Senior Lecturer in Law at The City Law School, University of London. Mara is a comparative constitutional lawyer with a linguistically-informed specialism in South Asian law and politics, human rights law, legal history, and law & film. She is the author of the monograph Constitutional Nationalism and Legal Exclusion in Nepal (2013 OUP) and numerous articles and book chapters on constitutional law and history. Before joining The City Law School, Mara was a British Academy Postdoctoral Fellow in the Department of Law at the London School of Economics (2012-15). She holds her Doctorate, MA in South Asia Area Studies, and BA (Hons) in Nepali & Politics from the University of London (SOAS); Bar Professional Training Course (BPTC) from The City Law School; Graduate Diploma in Law (GDL) from the then College of Law; and BA in International Relations & Diplomacy from the University of Trieste. Mara is a non-practising barrister and a scholar of the Honourable Society of the Middle Temple, which called her to the Bar of England and Wales in 2016.


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