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Robert Craig: Triggering Article 50 Does not Require Fresh Legislation

Robert CraigIntroduction

Considerable public interest has recently been focused on the ‘trigger’ mechanism for exit from the EU which is set out in Article 50 of the Lisbon Treaty. Expert opinion has divided between those who believe that the power to trigger Article 50 rests with the Executive using the legal authority of the royal prerogative from the Crown with no further parliamentary involvement necessary and those who argue that fresh legislation is required to confer statutory authorisation on the Executive to do something which could render nugatory rights under the European Communities Act 1972 (‘ECA’). An ingenious third way involving section 2(2) of the ECA has also been suggested.

This note suggests that no fresh legislation is required and that the power to trigger Article 50 rests with the Executive but for very different reasons to those suggested by what might be termed the ‘prerogative’ camp. The live question is whether, if legislation were deemed necessary, a Parliament which is overwhelmingly in favour of remaining in the EU might refuse to pass such legislation thus preventing, at least in the short term, activation of the trigger mechanism.

Crown prerogative can sometimes be the source of legal authority for executive action

In the UK constitution, the executive power to conduct foreign affairs including the signing of treaties has historically been grounded in prerogative with the Crown as the ultimate legal source of authority. The view of many constitutional lawyers, including Mark Elliott, of the legal basis of the Article 50 trigger power in international law is that it must therefore be solely a matter of prerogative. For many experts, this is the logical default position given the apparent absence of a specific Act of Parliament which authorises the withdrawal from the EU using Article 50.

Nick Barber, Tom Hickman and Jeff King agree with Elliott that the source of legal authority for Article 50 is the Crown. Their insightful piece argues that since the effect of a notice under the authority of Article 50 could be to render the ECA ‘nugatory’, it would be contrary to the principle set out in De Keyser’s Hotel for that notice to be triggered without authorisation from primary legislation which they argue would necessarily require fresh legislation to be passed. Their argument presupposes, like Elliott, that the source of legal authority for Article 50 is Crown prerogative.

Secondary legislation under s 2(2) ECA

Adam Tucker takes a different view. He points out that s 2(2) of the ECA creates a statutory power to give effect to novel rights acquired from the EU via secondary legislation. He argues that De Keyser ‘precludes the use of the prerogative power to pursue foreign affairs’. Instead the government ‘must use the statutory power contained in the 1972 Act’ to create a secondary instrument authorising that trigger mechanism. This, he argues, would also have the welcome benefit of ensuring that there is scrutiny by Parliament of the decision to trigger Article 50.

Elliott disagrees with this argument. He points out that s 2(2) ECA is only appropriate where there is no existing law in place in the UK and, of course, there is already an existing legal basis for the power which he says is the prerogative. Elliott’s critique of Tucker’s argument is persuasive. Secondary legislation via the Henry VIII clause in s 2(2) ECA is not the solution.

Consensus about De Keyser

There is, however, a seeming consensus among the leading experts as to the relationship between prerogative and statute which is that in the event they intersect, legislation passed by parliament must supersede prerogative as the source of the executive’s legal authority to act. This is obvious in a parliamentary democracy. The differences of opinion between the two main camps appear to rest on a question of fact as to whether the decision to trigger exit from the EU, which is a power whose legal authority both sides agree derives from the Crown, in fact undermines or renders nugatory a statute.

Elliott argues that the uncertainty surrounding the potential for a new deal or other possible outcomes means that the trigger mechanism in and of itself cannot be said to undermine the ECA. Barber et al claim that the circumstances are such that for the executive to trigger exit from the EU would breach the agreed principle in De Keyser because that would be to act using Crown authority in a way inconsistent with the intention of parliament as expressed in legislation.

A fourth option

This note argues, by contrast, that the prerogative and s 2(2) ECA are not relevant to the exercise of the executive power to trigger exit from the EU. Nor is there any need for fresh legislation. This is because there is already legislation which has been passed by parliament which provides statutory authority for executive action in this area. It therefore suspends, or places into abeyance, any prerogative source of authority to act and instead this legislation, not the prerogative, forms the legal basis for the power of the Prime Minister to trigger exit from the EU.

The legislation is the European Union (Amendment) Act 2008 (‘the 2008 Act’) which incorporates the Lisbon Treaty into UK law and, incidentally, gives it overriding legislative force with respect to past and future ordinary legislation by inserting it, in terms, directly into s 1(2) of the ECA. Any action under Article 50, as one section within the Treaty incorporated into UK law by the 2008 Act and the ECA, therefore must be taken under the relevant statutory authorisation and operate within the four corners of the relevant legislation.

In addition, s 6 of the 2008 Act (later replaced by the European Union Act 2011) specifically lists actions under the Treaty which require further parliamentary approval before a Minister can undertake them. Article 50 is not among those actions listed in the 2008 or 2011 Acts.

Article 50 is therefore already incorporated in UK law by primary legislation. Executive discretion to use it has therefore already been authorised and approved by parliament.

The next issue is the legal criteria for triggering exit from the EU under the terms of Article 50 in UK law.

Article 50

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  2. A Member State which decides to withdraw shall notify the European Council of its intention.

Constitutional requirements in the UK – the Separation of Powers

A little work is required to tease out what exactly are the constitutional requirements which mean that the Prime Minister can trigger the mechanism. This requires briefly considering the doctrine of Separation of Powers. In the UK, the functions of the legislature include scrutinising the executive, controlling supply, legislating, debating issues etc. The functions of the executive include implementing the law, controlling foreign affairs, proposing legislation etc.

It is trite law to observe that parliament has the constitutional power to alter the legal source of particular executive powers so that they become statutory powers rather than being legally sourced in the Crown. Historic examples include the transfer of judicial power from prerogative to statute, and the transfer of the power to manage the civil service. It is important to note that said transfer does not mean that Parliament itself exercises that power, simply that the legal source of the power to act in whatever way is permitted under the prerogative or statute has been transferred. This means that executive discretionary powers relating to foreign affairs could be legally sourced either in the prerogative or in statute.

In Chandler v DPP, there was some discussion of the fact that the executive sometimes acted in that case using powers sourced in prerogative and at times under statutory powers that were previously legally sourced in prerogative. The switching of legal authority to act from prerogative to statute simply meant that the court could intervene more readily (pre-GCHQ) in statutorily rooted executive action through judicial review. It did not mean that parliament was itself exercising the relevant powers or needed to pass fresh legislation each time those statutory powers were exercised in order to re-authorise their use. At all times it was the executive who exercised those powers, whether the power was statute-sourced or prerogative-sourced.

Applying De Keyser

In Rees-Mogg, Lloyd LJ, perhaps somewhat controversially given De Keyser, held that when ‘Parliament wishes to fetter the Crown’s treaty-making powers in relation to Community law, it does so in express terms’. He further held that on the facts, the ECA did not actually fetter the prerogative. However, it is suggested that Article 50 clearly, expressly and unequivocally does condition the use of that part of the Crown’s treaty-making powers that relates to withdrawal from the EU.

The incorporation into statute of that aspect of the prerogative of conducting foreign affairs which pertains to the potential withdrawal from the EU arguably took place with the passing of the 2008 Act. The relevant prerogative source of authority to exercise the power to withdraw from the EU therefore went into ‘abeyance’ or was ‘suspended’ (De Keyser). The power to withdraw from the EU became a statutory power for which the executive is directly, politically accountable to parliament.

Prime Ministerial exercise of a statutory power to withdraw

As our constitution allocates the function of conducting foreign affairs to the executive, whether the legal source of the power is prerogative or statute, the Prime Minister remains in control of the right to trigger the Article 50 procedure or otherwise deal with foreign affairs. That trigger power remains with the executive and ultimately with the Prime Minister and Cabinet and is now a statutory power under the 2008 Act and the ECA. No new legislation is required. Indeed legislative re-authorisation for the executive to trigger Article 50 would appear to be an exercise in duplication.

It is therefore suggested that the executive power to trigger exit from the EU has already been authorised and approved by legislation in parliament and can be carried out at the discretion of the new Prime Minister.

Political dimension

It could be argued that the question of whether there is a legal requirement for the Executive to seek further legislative authorisation for triggering Article 50 should be kept distinct from the important political questions at stake. The new Prime Minister may wish to secure a political mandate from Parliament to trigger Article 50 in due course. The decision whether to hold such a debate and vote is a purely political matter which will be decided by the new Prime Minister and her Cabinet. The doctrine of ministerial responsibility means that they are accountable to Parliament for that decision. However, there is no need to undertake any legislative actions of any kind in Parliament to authorise the trigger. That ship has sailed.

Robert Craig, London School of Economics

The author would like to thank Gavin Phillipson, Tom Poole, Jo Murkens, Mark Elliott, Nick Barber, Keith Ewing and Gregoire Webber for their helpful feedback. Usual disclaimers apply.

(Suggested citation: Robert Craig, ‘Triggering Article 50 Does not Require Fresh Legislation’, U.K. Const. L. Blog (8th Jul 2016) (available at https://ukconstitutionallaw.org/))

25 comments on “Robert Craig: Triggering Article 50 Does not Require Fresh Legislation

  1. Rupert Holderness
    July 8, 2016

    Is there anything to suggest that Parliament was aware of this in passing the 2008 Act?

    • Frederick Colbourne
      July 13, 2016

      “Is there anything to suggest that Parliament was aware of this in passing the 2008 Act?”

      In the case of Brexit, it may be correct to rely on what Parliament did say rather than attempting to discover what Parliament might or might not have intended to say. (I seem to recall this is from Lord Simon, though I can’t remember the case. He seems to have been neither a literalist nor a judicial activist.)

      The interpretation by Robert Craig seems to fit the long-term tendency for statutes to derogate from both the common lawn and the royal prerogative. Suffice to say that Parliament was aware of this trend in the long-term pattern of its own legislation.

  2. Rob Baston
    July 8, 2016

    What would be the consequence if firstly the Prime Minister (i.e. the Executive) would trigger notice under Article 50 of the TEU but then Parliament refused to amend or repeal the ECA? If it is not possible to “un-trigger” Article 50, does that not lead in practice to an untenable situation where the EU regards the UK’s accession to the EU treaties as ended, but Parliament does not?

    Indeed, since Article 50 is dependent on the constitutional situation of the Member State, might it not be better for Parliament explicitly to authorise an Article 50 notification, but to make the taking effect of the consequences of that notification subject to explicit approval by Parliament. Is there a way of crafting UK legislation which takes advantage of the “constitutional” reference in Article 50 to make it possible to void that notification? That at least would give the UK a better negotiating position, surely.

    • Frederick Colbourne
      July 13, 2016

      Given that about 60% of the Prime Minister’s party voted for Brexit, we may presume that MPs of the governing party know this. They also know that if they do not accept the whip, their constituents will be informed of that fact.

      So, politically, Brexit is on. As Theresa May has advised, we ought now work together to get the best terms for leaving.

  3. Jim South
    July 9, 2016

    Robert, you contend that the European Union (Amendment) Act 2008 provides a statutory power for the executive to give notice under Article 50 of the intention to withdraw. However, there is no statutory provision stipulating who is authorised to exercise the relevant power on behalf of the Member State. There is no need for such a provision. The executive already possesses the necessary power as part of its prerogative powers. The legislation does not evince any intention to abrogate the executive’s prerogative power to give notice under Article 50.

    • Frederick Colbourne
      July 13, 2016

      That is not Robert’s point. Whether or not there is need to spell out what is the source of power for Brexit,

      Providing for Brexit in a statute by itself derogates from the royal prerogative. With respect to Brexit, royal prerogative no longer applies.

  4. Robert Craig
    July 11, 2016

    Thank you for the replies.

    1. I do not think it would be profitable to suggest that parliament “did not know what it was doing” when it passed an Act.

    2. I think that parliament would approve the repeal of the ECA or otherwise authorise exit. If we had withdrawn, but the ECA was somehow maintained, my view is that the Government would fall, having lost on the central plank of its policy (“Brexit means Brexit” according to the new PM) and an election would be likely to follow in short order. Parliament can alter the constitutional arrangements if it chooses but it would seem unlikely to happen without Government blessing which I do not believe will be forthcoming.

    3. There is no statutory provision on who exercises the power because none is necessary. In our constitution, that is the executive. The executive has the power.

    Where we differ, perhaps, is on my view that the power is no longer a prerogative sourced power but is now statutory. The question of whether the legislation “intended to abrogate” the power in full would seem to involve some idea of a residual prerogative power outside of Article 50 which could be used instead of the statutory power to achieve exit, presumably immediately.

    The main problem is that unlike De Keyser, Laker and other cases, the Government does not seem to want to use such a “residual” prerogative – it wants to use Article 50, which has been approved by parliament. This means that those in the opposite camp want to require the Government to use a prerogative when it wants to use a statutory power. Previous case law seems to be the other way round.

    I find it difficult to follow how the use of a statutory power on a matter of high policy could be justiciable in JR proceedings. Perhaps I have missed something.

  5. tallbloke
    July 11, 2016

    Reblogged this on Tallbloke's Talkshop and commented:
    .
    .
    Robert Craig offers opinion on the ability of the executive to trigger Article 50 without needing fresh legislation.

    • Frederick Colbourne
      July 13, 2016

      Robert Craig goes further.

      Robert is saying that the statute has derogated from the royal prerogative the power to invoke Article 50, which effectively confers the power on the Executive by default.

  6. Jim South
    July 12, 2016

    Thanks Robert for your response to my above post. I acknowledge the strength of your argument that action under Article 50, as one section within the Treaty incorporated into UK law by the 2008 Act and the ECA, must be taken under the relevant statutory authorisation. You may well be right.

    However, the Supreme Court might instead take the view that Article 50, read as a whole, implies that both the making of the withdrawal decision and the giving of the notice of intention to withdraw must be done “in accordance with its [the Member State’s] own constitutional requirements”. The legislation does not say that these things must be done “in accordance with this Article”. There does not appear to be any legislative intention to alter the “constitutional requirements” referred to in Article 50.

    It’s difficult to predict the Supreme Court’s decision on this issue. For example, the Court could break new constitutional ground by adopting the principle that the executive cannot withdraw from a treaty incorporated into UK legislation unless there is legislative authority to do so. It will be very interesting to see what happens, both politically and in the courts.

    • Frederick Colbourne
      July 13, 2016

      “… the principle that the executive cannot withdraw from a treaty incorporated into UK legislation unless there is legislative authority to do so.”

      As I understand it, Robert claims the statute itself provides the Executive with the authority to withdraw from the treaty.

      As I understand your point, joining the EU required Parliament’s approval and exiting the EU will also require Parliament’s approval, because both change the British Constitution. The situations are symmetrical.

      The action of invoking Article 50 has the character of procedure, though founded in substantive law concerning the royal prerogative versus executive power.

      I do agree that this is going to be interesting.

  7. Dan Law
    July 13, 2016

    Robert, I don’t follow the key part of your argument and would be grateful if you would clarify.

    The conclusion which I struggle with is : “Article 50 is therefore already incorporated in UK law by primary legislation. Executive discretion to use it has therefore already been authorised and approved by parliament.”

    From what I gather, the argument that is meant to support this is given in the preceding two paragraphs.

    I will try to explain my difficulties seeing how you reach your conclusion and hope you can address these and show what I might be missing:-

    Invoking Article 50 is an action on the international plane. I don’t see how this being incorporated into domestic law by 2008 and ECA has any bearing (a withdrawal cannot be triggered by action on the domestic plane), nor do I see how incorporation into domestic law gives the Executive discretion to invoke Article 50.

    I certainly see that the 2008 Act brings the Lisbon Treaty within ECA. But ultimately isn’t the statutory authority you claim reliant on ECA 2(2)? If not, where exactly is the statutory provision you rely on, either in the 2008 Act or other statute? (I can’t find this, but may well be overlooking something).

    I do see that s.6 of the 2008 Act (and relevant section of the 2011 Act) specifies where further parliamentary approval is needed, and Article 50 is not included. Do you therefore see this as conferring the necessary authority to invoke Article 50? If so, would you spell out this argument a bit more please. Is this a form of expressio unius argument? Also how would you respond to ‘proper purpose principle’ / Padfield argument (essentially the reason it is not included there is that s.6 contemplates actions involving amendment of treaties). Moreover, doesn’t s.6 merely set further limitations on ECA 2(2) in light of later Treaties rather than confer authority?

    I also find it very surprising that the executive has had full uncontrolled discretion to take the UK out of the EU and might have used this at any time since the 2008 Act came into force without need for referendum or anything else (and without even public law constraints such as relevant/irrelevant considerations since you suggest this is non-justiciable).

    It also seems very surprising that Parliament would make the reservations it does in the 2008 and 2011 Act and ECA, yet omit the more far-reaching action of invoking Article 50. That seems irrational, and further argues that this is not within proper purpose (even if a general principle of ‘implied authorisation’ under these sections were accepted).

    There are other potential objections to do with principles of statutory interpretation etc. but these would be best raised once the specific sections / subsections giving Parliamentary authorization to invoke Art 50 are clarified.

    This fourth option with Parliamentary authorisation for such action sits far better with me than a claim that there is power to do this under royal prerogative. I would really like to get to grips with the argument you are putting forward here.

    • Robert Craig
      July 18, 2016

      I am currently drafting a fuller explanation for, it is hoped, publication but, in short, the courts could take a robust or nuanced approach.

      The robust approach is that national systems cannot use local rules to prevent the full implementation of EU law. Therefore the already existing executive power (of treaty making/withdrawing) which has simply had its legal basis transferred to statute under the 2008 Act needs no further legislative action to be exercisable. Any ‘drafting’ obstacles must be ruled out following Factortame II.

      The more nuanced version of this argument is to point to s 2(1) ECA which says that ‘powers’ created under the Treaties are ‘without further enactment to be given legal effect or used in the UK… and allowed and followed accordingly’. This includes an executive power to trigger Article 50. The executive already possessed the power (‘in accordance with our constitutional arrangements’) but now it is on a statutory basis.

      Padfield is only relevant once you concede the executive power is statutory. Once that is conceded, the question of JR of that statutory power is a completely separate one. A sceptic might claim that Padfield means you cannot use a statutory discretionary power to undermine the purpose of the Act. That misses the fact that Article 50 is part of the purposes of the EU. In any event the issues are non-justiciable once the prerogative issue is excluded.

      • Dan Law
        July 18, 2016

        Thanks for this response.

        Am I right in thinking that you are referring to treaty-making power (inc power to withdraw) when you say:” The executive already possessed the power (‘in accordance with our constitutional arrangements’) but now it is on a statutory basis.”?

        I could see your argument with respect to that power. However triggering Art 50 does not only involve withdrawal of treaties. This will also have far reaching consequences for laws and rights. The Bill of Rights 1688 is clear that the executive does not have the power to do that without consent of Parliament. The Bill of Rights is a key part of our constitutional arrangements.

        How then does the executive have the power to trigger a disapplication of laws and rights? Exactly how and where has this been consented to by Parliament?

        Or is the argument that the Bill of Rights is not applicable where laws are suspended or dispensed with by the executive through use of treaty powers which have been put on a statutory basis?

        I recall a case where it was argued that Parliament had impliedly delegated authority to set some forms of taxation. The logic seemed flawless if words were taken in isolation. However it was soudly rejected and it was held that only clearest express words would suffice. A kind of principle of legality argument.

        I wonder if you are similarly arguing that Parliament has impliedly given authority to the executive to dispense with laws by triggering Article 50? If not, where are the clear express words specifically conferring this authority?

      • Robert Craig
        July 20, 2016

        Yes – a treaty making power (since that is the topic here).

        You are not specific as to which “laws and rights” might be affected beyond those given effect by the ECA but, for the sake of argument, lets imagine they exist.

        My position is that if you accept (which you generously say you could “see the argument” for) that Parliament has now statutorily authorised the pre-existing treaty making/withdrawing power by approving Article 50 in the 2008 Act, then it must follow it has authorised all the ripple consequences of the uncontested power to trigger Article 50 (what is contested is the legal SOURCE of the power and what follows from that). Parliament must be presumed to understand the full consequences of Acts it passes such as the 2008 Act. In authorising the Article 50 trigger procedure, Parliament authorises all the legal consequences.

        Your taxation example is different because there is no pre-existing tax raising power as an accepted executive power rooted in the Crown which could be transferred wholesale to a statutory basis.

        Furthermore, I fail to see how a putative EU (Article 50 Authorisation) Act 2017 would not be equally subject to the problems you suggest if it said “s1. This Act empowers a relevant minister to trigger Article 50 on such date as s/he may appoint”. Does this not also fail to be explicit as to any other knock on effects of other laws and rights that might be affected? On your argument, such an Act would have to list all the other “laws and rights” possibly affected and then explicitly authorise that they be “dispensed” with. This is because the power to trigger Article 50 would still technically be delegated to the executive under the 2017 Act – if the Act missed any “laws and rights ” out, would the trigger then be unlawful?

        If Parliament has already validly transferred the legal source of authority to exercise the undoubtedly pre-existing executive power to a statutory basis from the Crown then it has already authorised its use, in my view, including any legal sequelae whether known or unknown beforehand. A 2017 Act would just be duplication.

        There are further arguments in the alternative to do with s 2(2) ECA and Factortame but i need to get on with actually writing these arguments out properly rather than summarising them here.

  8. Jim South
    July 14, 2016

    On this issue, there seem to be two competing views. On one view, the UK legislation creates a statutory right to decide to withdraw from the EU and a statutory obligation to notify the European Council of the intention to withdraw. The alternative view is that the UK legislation merely recognises the existence of the identical right and obligation in Article 50 of the Lisbon Treaty. I think both views are plausible.

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  12. Ian Peacock
    July 14, 2016

    Really interesting article and comments. I am not persuaded that the 2008 Act recognising the Lisbon Treaty had the effect that what would have been a prerogative power to trigger Article 50 was turned into a statutory power.

    An alternative way of analysing the situation is that, by recognising Article 50 as part of the Lisbon Treaty, Parliament has recognised that EU Treaty rights are contingent on Article 50 not having been triggered.

    If that is right, then De Keyser doesn’t bite. Triggering Article 50 does not render nugatory the rights under a statute. The statutory rights are contingent ones and the contingency which has the effect of them coming to an end has occurred.

  13. Jim South
    July 20, 2016

    Robert, you contend that the executive already possessed the power (‘in accordance with our constitutional arrangements’) but now it is on a statutory basis. However, if it is accepted that the power is now on a statutory basis, it must also be accepted that the statute requires any exercise of the power to be ‘in accordance with its [the UK’s] own constitutional requirements’? The statute doesn’t say ‘in accordance with its own constitutional requirements, other than those allowing the use of prerogative power’. Arguably, instead of delegating the power to the executive, the statute provides that any exercise of the power must be in accordance with the UK’s existing constitutional requirements. Everything hinges on the meaning of ‘in accordance with its own constitutional requirements’.

    • Dan Law
      July 21, 2016

      Jim – thank you – at last I think I understand what Robert’s argument might be. I missed this sleight of hand where a general transposition of EU Treaties becomes a delegation of power to the executive for this purpose. Recognizing the Art 50 procedure in UK law is quite different from authorising the executive to trigger the Art 50 procedure.

      If Parliament intended to authorise the executive to invoke Art 50, wouldn’t one expect it to be done with an explicit provision to that effect? It would be remarkable for Parliament to vest a discretion in the executive which gives this power over legislation since this would be contrary to the UK’s constitutional arrangements. Yes, Parliament could do so, but there would be a very strong presumption against this; only the clearest and most unequivocal statutory language would suffice.

      Here supposedly, in the 2008 Act Parliament is vesting this power absolutely in the executive. Moreover this is apparently ‘in accordance with the UK’s constitutional arrangements’. One must then suppose this entails Parliament intended to change those constitutional arrangements, with implied repeal of relevant parts of Bill of Rights 1688 etc. :- “Parliament must be presumed to understand the full consequences of the Acts it passes.” And this no doubt confirms Parliament’s intention to vest this power (if such circularity is now permissible).

      It seems remarkable that this momentous constitutional development in the 2008 Act went quite unnoticed until identified in this novel and ingenious teleological argument. If one applies this presumption that Parliament intends to vest power in the executive, I’m sure, if we are as eager in the endeavour, there will be many other remarkable surprises to be found in other statutes as well (tax powers for a start).

      For me, the real insight gained from this is just how much hangs on this slender presumption that Parliament does not intend to divest itself of its legislative power (a ‘principle of constitutionality’ akin to the principle of legality). Change the constitutional ideal to one where the ideal is power centralised in the executive, and everything changes. Lord Atkin’s dissenting speech in Liversidge v Anderson is very apposite:

      “It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

      […]

      I know of only one authority which might justify the suggested method of construction. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be the master, that’s all.”

  14. David B
    July 29, 2016

    I know little about constitutional law so please forgive me if this is a stupid question, but there’s an issue that strikes me about the comments above linking prerogative powers to foreign affairs. Are matters relating to the EU actually foreign affairs (or exclusively so)? We are a member of the EU, so does that not mean that EU matters are, in fact, UK matters?

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