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Thomas Fairclough: Article 50 and the Royal Prerogative

Tom FaircloughIntroduction

This piece seeks to address only one question: does Parliament or the Government have the power to decide to withdraw from the European Union in accordance with Article 50 TEU and through the notifying of the European Council of such a decision trigger the two year time limited formal withdrawal negotiations? Nick Barber, Tom Hickman, and Jeff King have argued valiantly that it will be Parliament who has to “pull the Article 50 trigger”. This piece will analyse their arguments and suggest that, contrary to their conclusions, it is the Government, under the Royal Prerogative, that has legal authority to start the Article 50 process.

The Article 50 Process

This piece assumes that it will be Article 50 that is used to begin the exiting process (as argued for here). It will also assume that the exiting process will begin; whilst there have been some suggestions that the United Kingdom will not try to exit the European Union I argue that this is unlikely as a matter of political fact (whilst legally, of course, the Government and Parliament could just ignore the referendum and carry on as normal).

Article 50 reads as follows:

  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….
  1. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

There are three things to note here: first, Article 50 is a one-way street, once it is invoked there is no procedural route for going back and, if an agreement is not reached and an extension of time not given, then the United Kingdom will exit the European Union two years from the date of notification of intention to exit. Second, there is no real process prescribed for the decision making process on behalf of the Member State; Article 50 simply states that such a decision be made by the Member State “…in accordance with its own constitutional requirements”. As such, the nature of this decision making process is purely a matter of domestic law. Third, Article 50 requires two things to start the leaving process: (i) a Member State has to decide to withdraw from the Union in accordance with its own constitutional requirements; and (ii) a Member State that so decides has to notify the European Council of such an intention.

It is trite to say that the referendum held on the 23rd of June 2016 was not a “decision” by the Member State; it was merely an opinion gathering exercise by Parliament. However, politically, it is hard to ignore. The question then is who gets to decide we are withdrawing from the Union and who then notifies the European Council?

Parliament or Government?

The Prerogative Power

It is for the United Kingdom to decide to withdraw from the European Union according to its own “constitutional requirements”. So what are the constitutional imperatives involved in treaty withdrawal? The United Kingdom has no codified constitution and so it is hard to know from first glance who or what gets to decide. Certainly the Government are of the opinion that it is for them to decide that the United Kingdom wishes to exit the European Union. Of course, the Government have not stated on what basis they have the authority to initiate the Article 50 process. However, it seems that they would presumably be utilising their power under the Royal Prerogative, which has always contained powers relating to foreign affairs. This has historically involved the making of treaties at international level. While the Ponsonby Convention (now on a statutory footing in Part 2 of the Constitutional Reform and Governance Act 2010) does require that treaties be laid before the Houses of Parliament for a period of 21 days before they are ratified, the ability of the Government ratify treaties remains a prerogative power, as does the power to amend or withdraw from treaties. Crucially, however, any obligations arising from international law treaties do not take effect at domestic level until Parliament chooses to incorporate all or part of the international law into the domestic sphere. To be clear, there is a formal separation between the international and national spheres; the Royal Prerogative allows the Government, on the Sovereign’s behalf, to conduct foreign affairs and enter into international treaties but these treaties only have any direct domestic application because Parliament (through an Act) intends it to be so.

On a simplistic analysis it would seem, then, that the Government (specifically, presumably, the Prime Minister) can, at the international level, use the Royal Prerogative power of foreign affairs to trigger the Article 50 process. This is because our constitutional arrangements leave it to the Government to conduct foreign affairs. In isolation, the exiting process would be a paradigm case of conducting international affairs through the prerogative power. In this way, the Government can activate Article 50 today, tomorrow, or in ten years.

Inter-play between Statute and Prerogative

Nonetheless, as Barber, Hickman, and King rightly point out the relationship between statute and the Royal Prerogative has long been contentious. As Lord Parmoor said in Attorney General v De Keyser’s Royal Hotel Ltd. [1920] AC 508 (HL):

When the power of the Executive…has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament.

The precise scope of this principle is uncertain; some would say it is narrow, and if Parliament wishes to frustrate the Royal Prerogative it must speak clearly and not leave its intention to mere implication. On a wider view, as Barber, Hickman, and King argue, one could say that the “wider principle is that it is not open to Government to turn a statute into what is in substance a dead letter by exercise of the prerogative powers; and that it is not open to the Government to act in a way which cuts across the object and purpose of an existing statute”.

European Communities Act 1972 and Royal Prerogative

As noted above, Article 50 is a one-way street that, at the eclipse of two years without a deal to the contrary, releases the United Kingdom of its Treaty obligations. If it is the Government who activate Article 50 then they would be utilising the Royal Prerogative to take the United Kingdom out of the European Union despite the fact that the European Communities Act 1972 (“ECA”) expresses Parliament’s wish for EU law to apply domestically (section 2 ECA). In other words, this Act functions as an incorporating statute, bringing the United Kingdom’s international obligations into the domestic sphere with domestic effect. Barber, Hickman, and King argue “the obvious intention of the Act is to provide for the UK’s membership of the EU and for the EU Treaties to have effect at domestic law. The purpose of triggering Article 50 would be cut across the Act and render it nugatory”.

The argument goes that because withdrawal would render the 1972 Act hollow it would cut across Parliament’s intention in enacting the ECA. Since Parliamentary intention trumps prerogative power, the Royal Prerogative cannot be used to initiate the withdrawal process. Instead, it must be Parliament that does so.

Whilst incredibly well argued, this is not an argument that I agree with. The ECA was undoubtedly enacted to give effect to the United Kingdom’s international obligations vis-á-vis the European Union at the domestic level. However, regardless of such an Act, as a matter of international law the United Kingdom would already be bound at the international level. The ECA merely transposes these international obligation into the United Kingdom’s law in accordance with the constitution’s dualist approach to the domestic effect of international law.  The use of the Royal Prerogative in initiating Article 50 will not repeal or modify the ECA. That is undoubtedly for Parliament to do. All it would do is alter the Treaties at the international level to remove the United Kingdom from its international obligations. This is entirely consistent with the will of Parliament as expressed in the ECA, which is to automatically give effect to European Union law as it applies to the United Kingdom at the domestic level. However, the relevant Treaties of the European Union govern European Union law and these Treaties are enlarged or reduced in scope, from the United Kingdom’s perspective at least, by the Government’s representative(s) acting under the Royal Prerogative. Therefore, the Royal Prerogative can be used to activate the Article 50 procedure.

Barber, Hickman, and King suggest that because section 2 ECA “provides that all such rights, powers, liabilities, obligations and restrictions” coming from the Treaties are part of the domestic law Article 50 could not be activated by the Executive because that would cause a loss of rights provided by European Union law. The idea here is that because Parliament provided for rights to be incorporated domestically under the ECA the Executive cannot use the Royal Prerogative to frustrate that purpose by initiating the withdrawal process (and therefore take rights away from citizens). This normative argument is based on a fallacy; the ECA provides that rights “from time to time arising” under the Treaties to apply domestically. Those rights can increase in scope (as has been the general trajectory of the European Union project) but, likewise, they can be restricted. There could be a Treaty change, for example, that abolishes the European Parliament. This would, on a strict analysis, only require assent from the United Kingdom via the Royal Prerogative and not from Parliament, despite the loss of a democratic “right”.

The authors may argue that a lowering of rights is acceptable within the current framework because that works within the European Union, whereas Article 50 would result in a withdrawal, which “cuts across the whole object and purpose of the 1972 Act, which is to make the UK part of the EU”. However, this is misguided. The 1972 Act was not designed to make the UK party to the European Union; it was rather to incorporate our international commitments into the domestic sphere.  One way to demonstrate this is to reverse engineer the argument; if the Royal Prerogative had not been used to join the European Union but Parliament had still passed the ECA, the United Kingdom would not joined the European Union. Barber, Hickman and King seem to revert to potential arguments along these lines and dismiss any such contention as “a very formalistic analysis”. With respect, I contend that what they consider formalism is in fact the recognition of the important distinction between international legal obligations and the domestic legislation that may give effect to such. We are party to the European Union because of the Royal Prerogative, and we will leave the European Union because of the Royal Prerogative.

Conclusion

I have argued that (regrettably, from my point of view) it will be the Government, using the Royal Prerogative, who will decide if/when to trigger the Article 50 mechanism and take the United Kingdom out of the European Union. The ECA did not change this, default, position. It did not provide for the United Kingdom to become a signatory to the European Union, it merely replicated our international obligations in the domestic sphere. We negotiated and joined the European Union through the Royal Prerogative, and we will negotiate and leave the European Union through the same. That is not to say that Parliament has no role; indeed, I hope that Parliament makes its feelings well known to whoever the Prime Minister is at the relevant time, both in relation to when to trigger Article 50 and the content of the negotiations that follow thereafter. Nothing in this piece is to detract from that; all it seeks to do is locate each branch of the state in its proper setting.

Thomas Fairclough, AHRC PhD Candidate at Gonville and Caius College, Cambridge and Teaching Fellow in Public Law and Jurisprudence at University College London. I would like to Darragh Coffey, Louise Hague, Hayley Hooper, Stuart Lakin, Ian McDonald, and Stephen Tierney for their comments on this piece. Any mistakes are my own.

(Suggested citation: T. Fairclough, ‘Article 50 and the Royal Prerogative’, U.K. Const. L. Blog (8th Jul 2016) (available at https://ukconstitutionallaw.org/))

34 comments on “Thomas Fairclough: Article 50 and the Royal Prerogative

  1. CJ McKinney
    July 8, 2016

    On a minor point of information, where you say:

    “the Government have not stated on what basis they have the authority to initiate the Article 50 process. However, it seems that they would presumably be utilising their power under the Royal Prerogative”

    Oliver Letwin said the other day that the government’s view is that it would be exercise of the prerogative power – see http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/foreign-affairs-committee/implications-of-leaving-the-eu-for-the-uks-role-in-the-world/oral/34848.pdf#page=10

  2. Rule of Law
    July 8, 2016

    I do not agree with the international law argument set out here. On 28 October 1971 both Houses of Parliament passed a resolution agreeing in principle to the UK joining the EEC on the terms negotiated by the Government. The Accession Treaty was signed on 22 January 1972. That treaty could not have been signed absent the prior Parliamentary resolution. On 17 October 1972 the 1972 Act received the Royal Assent. On the next day the Accession Treaty was ratified. That ratification could not have occurred without the enactment of the 1972 Act the previous day. So Parliament was involved at all stages before anything happened on the international plane. The net result is that only Parliament can decide to withdraw from the EU since the prerogative cannot be used to trump the clearly expressed will of Parliament.

    • Michael Wilkinson
      August 2, 2016

      The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
      It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis.

      • Ceri James
        August 15, 2016

        I don’t agree cos parliament would have know the Referendum was non legally binding therefore they only agreed to an advisory referendum.

      • Michael Wilkinson
        August 29, 2016

        The only rights that can be taken away are those that Parliament agrees to. The Referendum only gave a right to a vote for ‘in or out of the EU’. So any argument that the Referendum removes ‘rights’ from the populous falls at the first fence.

        The notion that Parliament only agreed to the Referendum being ‘advisory’ also falls at the first fence as Parliament was ‘silent’ on the issue. That is unless it is being argued that such a basic point of law does not apply to Parliament.

      • Eddie
        September 8, 2016

        Furthermore, Hammond, when proposing the Bill, stated:

        “The debate in the run-up to the referendum will be hard fought on both sides of the argument. But whether we favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision about our membership should be taken by the British people, not by Whitehall bureaucrats, certainly not by Brussels Eurocrats; not even by Government Ministers or parliamentarians in this Chamber. The decision must be for the common sense of the British people. That is what we pledged, and that is what we have a mandate to deliver. For too long, the people of Britain have been denied their say. For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This Bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”

        Hansard 9 Jun 2015 : Column 1056

        It is also clear, through case law as well as legislation drafting guidelines, that where a point is unclear (in this case whether the result should be binding or subject to further Parliamentary agreement) that Ministerial statements when proposing the bill can be relied upon by the courts.

        See section 25 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/450239/Guide_to_Making_Legislation.pdf

    • Philip Webster
      August 9, 2016

      Philip Webster: Solicitor of the Supreme Court. I Totally agree.

      • Philip Webster
        August 26, 2016

        The terms of the Referendum are stated to be advisory. Parliament must vote to enable the government to legally trigger Article 50, particularly as the triggering of Article 50 of the Treaty of Lisbon would inevitably undermine the European Communities Act (ECA) of 1972 enacted by the UK Parliament. The ECA1972 (as with any act of Parliament) may only be repealed by a further repealing Act of the UK Parliament. Undermining the Supremacy of Parliament, directly or indirectly (or whether by a referendum and/orby use of the Royal Prerogative and/or as a result of the ferocious media campaigns of certain sections of the British media (e.g. the Sunday Express, Daily Mail/ the Sun)should not be taken lightly. Bloody civil wars have been fought in the UK to ensure the Supremacy of Parliament as the ultimate legislative making body in the UK. Moreover, as a political matter, the UK fought two bloody European wars, which became world wars to prevent Germany dominating Europe and now the brexiteers (formerly led by Nigel Farage ( married to a German wife…)wish to hand back such domination of Europe to Germany without even a vote of Parliament! Not to mention all the rights (e.g. visa less travel/residence/ regional/educational grants/ Euopean wide banking and financial services provisions which are worth billions of sterling to the City of London) British citizens risk loosing both in the UK and the rest of Europe and all without the UK Parliament voting thereon. If this were to happen without the approval of the UK Parliament it would be illegal under the laws of England & Wales, Northern Ireland and Scotland.

  3. Andrew Cook
    July 8, 2016

    Could the Queen refuse to apply Royal Perogative? It strikes me that we are in extraordinary times, and maybe extraordinary measures are in order. Yes – as a result of that action, the UK constitution would probably be changed to prevent a monarch intervening in that way ever again. I just question what kind of country the Royal Family want to be (nominal) heads of state of..? A fascist oligarchy? A banana republic?

  4. Gerard Van Geleuken
    July 8, 2016

    A more relevant argument would seem to be that the government, by taking steps that inevitably will lead to the UK leaving the EU, would in effect deprive British citizens of a number of legal rights that they now enjoy as EU citizens. And unless I misunderstand something, under the British constitution the government cannot remove or nullify legal rights of British citizens without parliamentary approval. ‘Royal Prerogative’ powers cannot be used to overturn statutory rights.

    • Thomas Fairclough
      July 9, 2016

      This is what the argument will be. The issue is that the rights aren’t given by Parliament directly; the ECA gives you rights as occur under the Treaties and the Treaties change due to Royal Prerogative. Different to if an Act directly said you have x,y, and z rights and they tried to use RP to nullify that.

    • nick
      August 1, 2016

      If the British people are unhappy with their legal rights given to them, they will sack their government at the general election and elect a new one.If the EUSSR pass laws that change the legal rights of the British people, what chance do the British people have of getting rid of the unelected EUSSR dictators?

  5. Mike Fearon
    July 8, 2016

    In my view (for what it may be worth) this is a better argument than that put forward by Barber Hickman and King, well presented though that was. It is possible to go further, and to argue that the UK Parliament could decide to leave the 1972 Act in place, and voluntarily decide to give effect to existing treaties and EU laws and Direcitives, whether or not The UK remains a member of the EU. This would seem absurd, but that does not make it a constitutional or legal impossibility.

  6. Michael Wilkinson
    July 19, 2016

    The wording of the referendum was discussed by Parliament and modified by agreement and therefore gave approval to the question ‘Stay in the EU or leave the EU’ as surely if there had been a Parliamentary vote in the House.
    It is ridiculous to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote. In short Parliament agreed that the question of EU membership was delegated to the electorate on a simple yes or no basis. It is now up to parliament to agree exit terms etc. having as I have said, agreed to the referendum and its outcome.

    I would welcome feedback

  7. Antony Carter
    July 20, 2016

    If the argument presented here is correct then it renders null the point made by Brexiteers that our parliamentary sovereignty was at risk if we remained in the EU.
    If the executive has the power to exercise the Royal Prerogative at will to trigger Art 50 then our executive was never ‘not in total control’.

    It is it seems RP that is more a threat to Parliamentary Sovereignty. Using RP to trigger Art 50 thus bypassing Parliament is to exclude democratically elected representatives from their proper representation of their constituencies. A more democratically honest way of obtaining political and moral authority for such an act as triggering Art 50 would be to include such intent in a manifesto presented to the nation prior to a general election.

    Thomas makes the point;

    “It is trite to say that the referendum held on the 23rd of June 2016 was not a “decision” by the Member State; it was merely an opinion gathering exercise by Parliament.”

    As such then it represents nothing more than the view of the mob to put it bluntly. And the result represents the view of just over one half of the mob at that. For the executive to claim it is morally, politically and legally bound by the view of the mob is for the executive to abdicate it’s responsibility to rule in accordance with the rule of law and parliamentary democracy. The executive in exercising the Royal Prerogative thus, is thus subjecting the governance of the nation to mob rule. Not the first empire to end it’s days thus.

    • Ceri James
      August 15, 2016

      totally agree with you – this argument in this article would create a dangerous precedent

  8. tiddk
    August 15, 2016

    It’s very strange to read a Brexit-supporting analysis from someone who could easily pass as Nick Clegg…

  9. Ceri James
    August 15, 2016

    I don’t agree with this argument it would set a dangerous precedent that any Gov of the day could set about holding a referendum and with the slimmest of majorities change the entire constitution of the Country. art 50 quite clearly states in accordance with its own “constitutional requirements” which will clearly involve parliament and not just Gov executive powers. Common sense should prevail no matter how well legally argued. Of course it would have been a different matter if the Referendum had been immediately Legally Binding but it wasn’t.

  10. Pingback: Owen Smith: a political black hole within Corbyn's galaxy - Scisco Media

  11. Simon Joens
    August 31, 2016

    In 2011 the British Government introduced “the European union act 2011”. As I understand it, it states that powers cannot be transferred between the UK and European Union without A) at least parliament agreeing and B) If the powers effect sovereignty, a referendum must be held.

    While intended to stop powers going to the EU from the UK, the act does not specify in which direction the power transfer occurs. Could this act be used to stop the PM triggering article 50 without going to parliament and referendum?

    • Michael Wilkinson
      September 1, 2016

      Question. Where does the notion that the Referendum was only ‘advisory’ as far as Parliament was concerned originate?

      • Simon Joens
        September 5, 2016

        It is written on the act of parliament that was passed to make the referendum happen

  12. John Hartigan
    September 8, 2016

    We seem to be forgetting the role that voters play in the constitutional framework of the country. More specifically, the 23 June referendum directly relates to authority to trigger Article 50.

    We have been through four months of campaigning and a relatively clear referendum result from the UK electorate on a clear question – do we Remain or Leave? This question could easily be interpreted as “Should the UK Government in the relatively near future trigger Article 50 to Leave the EU or Remain in the EU? The electorate having decided this issue, it is then for the Government to implement i.e. trigger Article 50.

    It’s important to remember the various steps by which the electorate have provided a mandate to the government on triggering Article 50:
    – the Conservative Party put in their 2015 general election manifesto that they wanted to renegotiate the terms of EU membership and have a subsequent Leave/Remain referendum;
    – the Conservatives won the general election and therefore had a mandate from the electorate for this process;
    – the Parliament elected in 2015 legislated this process and authorised the referendum;
    – the electorate then voted on this issue providing the UK Government with a mandate to Leave the EU.

    Parliament can of course legislate whatever it wants, but to frustrate the direct instruction of the electorate – the result of a referendum that this Parliament itself authorised – would indeed be dangerous for our democracy.

    The importance of manifestos and mandates (i.e. consent) in constitutional change is all too often overlooked;

  13. Michael Wilkinson
    September 8, 2016

    In rely to Simon Joens Sept 5th.2016
    Please direct me to the wording in the bill, or any other appropriate source, that says the referendum was to be only ‘advisory’?

    • Simon Jones
      September 13, 2016

      Michael Wilkinson: This is because parliament is sovereign and referendums are generally binding in the UK.

      Could MPs block an EU exit?
      Could the necessary legislation pass the Commons, given that a lot of MPs – all SNP and Lib Dems, nearly all Labour and many Conservatives – were in favour of staying? The referendum result is not legally binding – Parliament still has to pass the laws that will get Britain out of the 28 nation bloc, starting with the repeal of the 1972 European Communities Act.

      http://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament

      http://www.independent.co.uk/news/uk/politics/brexit-eu-referendum-result-not-legally-binding-lawyers-letter-a7129626.html

      http://www.bbc.co.uk/news/uk-politics-32810887

    • Simon Jones
      September 13, 2016

      Michael Wilkinson, the following is in the second paragraph of the bill, stating advice and consent of the house of commons is required.

      Be it enacted by the Queen’s most Excellent Majesty, by and with the ADVICE and consent of the Lords Spiritual and Temporal, AND COMMONS, in this present
      Parliament assembled, and by the authority of the same, as follows:— “

      • John Hartigan
        September 14, 2016

        This is the standard preamble to Parliamentary acts – the Queen has taken the advice of Parliament and what follows is law. It does not relate to whether the EU Referendum was or was intended to be advisory in nature. The Act appears to be silent on whether it is advisory or binding.

      • Michael Wilkinson
        September 15, 2016

        The wording of the referendum was discussed by Parliament and modified by agreement and gave approval to the question ‘Stay in the EU or leave the EU’

        It is ‘inappropriate’ to claim that Parliament did not approve that the referendum should take place and accept any result arising. No motion was raised to challenge the enactment or consequences of a leave vote, or for that matter a remain vote.

        Parliament agreed that the question of EU membership should be delegated to the electorate on a simple yes or no basis without there being any mention that the referendum was to be only advisory.

        The Act is silent on the question of whether the referendum was only to be advisory.
        Surly that is an end to the matter because if a ‘contract’, in this case an Act of Parliament, is silent on the question of ‘advisory only’ it cannot be rely on in law.

      • Simon Joens
        September 16, 2016

        Unfortunately that’s not the case. The UK has a parliamentary democracy and all referendums are advisory only. This is why the Referendum for the Alternative vote system specifically had to have the words that this referendum would be “legally binding”. Without those words all referendums in the UK are advisory only.

      • Michael Wilkinson
        September 18, 2016

        Your authority please that all referendums are advisory only.

  14. David. Hutchinson
    September 24, 2016

    With reference to Robert Craig’s article posted on 8 July 2016 and specifically to the following extract:

    “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.”

    So far, I have seen no cogent refutation of his argument that triggering Article 50 by using crown powers does not require fresh legislation. Would you or any other constitutional lawyers like to comment on Robert Craig’s conclusion in the final paragraph cited above?

    Reply

  15. Alan Brayne
    September 25, 2016

    1) If a previous referendum on AVS needed to insert a clause in order to make it legally binding on the government, doesn’t the absence of such a thing in a subsequent referendum rather imply that it is not binding?

    2) As a layperson with no legal background, can I ask what may be a naive question? When this issue is decided one way or the other in October, will be there any right of appeal to a higher court? I haven’t seen anything in any newspaper about this. Could this thing run and run? And could we have the (ironic) possibility that this could go to the ECHR, specifically on the idea that invoking Article 50 via RP removes the statutory rights of UK citizens without any discussion or vote by parliament?

  16. Simon Jones
    September 26, 2016

    By the very fact the the government is attempting to use royal prerogative to enact brexit proves the referendum is advisory only. If it were binding then we would already be out of the EU and article 50 would have been triggered.

  17. Antony Carter
    September 30, 2016

    Michael Wilkinson, perhaps this may answer your query.

    Taken from the third report into the referendum on Scotland’s Independence
    “The effect of a referendum

    7. There was some confusion in the evidence we heard as to whether the result of a UK referendum was ‘advisory’ or ‘binding’. This distinction as explained by Professor Stephen Tierney, of the University of Edinburgh’s School of Law, was the difference between “a legal obligation to abide by the result and a political commitment.”

    Taken from the first link below
    http://www.publications.parliament.uk/pa/ld200910/ldselect/ldconst/99/99.pdf

    This link informed much of the above report.
    http://www.publications.parliament.uk/pa/cm201213/cmselect/cmscotaf/542/54204.htm

    the moot point is whether the effect of the 2016 referendum is legally binding on the Government or if they are only bound by a political commitment. It may be posited that to ‘legally bind’ parliament by the outcome of a referendum is to fetter a future parliament. Which, within the UK constitution cannot be done without parliamentary sovereignty being undermined.

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