UK Constitutional Law Association

affiliated to the International Association of Constitutional Law

Gavin Creelman: The Relevance of Thoburn to the Article 50 “Trigger” Debate

Gavin CreelmanIn the weeks following the EU referendum result, a number of key constitutional questions have emerged. Central among these has been the issue of how the process of withdrawal from the EU provided by Article 50 of the Treaty on European Union (“TEU”) may be “triggered”. In particular, the debate has focussed on whether the Prime Minister may give notice under Article 50 as an exercise of prerogative power (as Mark Elliott and Kenneth Armstrong have argued), or whether Parliament must authorise the commencement of the withdrawal process (as Tom Hickman, Nick Barber and Jeff King suggest). The High Court will be asked to rule on this issue in October, meaning the debate may be of considerably more than academic significance.

The answer to this question is not clear, and there are strong arguments on both sides. Little consideration, however, has thus far been given to the special constitutional status that the European Communities Act 1972 (“ECA”) was said by Laws LJ in Thoburn v Sunderland City Council [2002] 4 All ER to possess. Although the status of Laws LJ’s comments in that case remains uncertain, if his approach is correct, it may lend considerable support to the argument for express legislative authorisation by means of an Act of Parliament.

The constitutional status of the European Communities Act 1972

In Thoburn, Laws LJ argued obiter that the ECA could not be impliedly repealed, because it belonged to a category of statutes recognised by the common law as “constitutional”.

According to Laws LJ, “a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights”. The ECA “clearly” satisfied these conditions, along with other examples such as the Magna Carta, the Human Rights Act 1998 and the devolution legislation.

The special protection of such constitutional statutes against implied repeal “follows from the special status of constitutional rights”. As John Adenitire has noted, it is a well-established principle of the common law that fundamental rights may only be abrogated by express words to that effect in an Act of Parliament. Given this, it follows that a subsequent Act can only curtail constitutional rights conferred by an earlier statute if it does so by express words, and not through the doctrine of implied repeal. As Laws LJ put it:

For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The proposition that such constitutional statutes exist, and that they are indeed exempt from implied repeal, draws some support from the judgment of Lord Hope in the Supreme Court case of H v Lord Advocate [2012] UKSC 24 (as Adam Perry and Farrah Ahmed explain).

Would triggering Article 50 amount to a repeal or implied repeal of the ECA?

What, then, is the relevance of this special constitutional status to the Article 50 debate? Firstly and most obviously, if it could be shown that triggering Article 50 would amount to a repeal or implied repeal of the ECA, then it would follow from the above that such action could only be taken pursuant to express words in an Act of Parliament. However, as Elliott has argued, neither triggering Article 50 nor eventually completing the process of withdrawal from the EU would expressly or impliedly repeal the ECA. Formally, the ECA exists to give effect to the obligations imposed on the UK by the EU treaties as a matter of international law “from time to time”. Invoking Article 50 and leaving the EU would result in the UK ceasing to be subject to any such international obligations, and therefore in the ECA ceasing to have anything to give effect to. It would not, however, remove the ECA from the statute book or introduce any contradictory provision into domestic law, in the manner of an implied repeal.

The rationale of Thoburn is to protect the constitutional settlement and constitutional rights

Nevertheless, the significance of Thoburn is not limited to protecting constitutional statutes against implied repeal. Laws LJ also emphasises that “the abrogation of a fundamental right” cannot be effected by implication.

It is clear that directly effective EU law confers a great many rights on individuals against the state. Some of these can be understood as “fundamental rights” in the conventional human rights sense, not least those included in the Charter. As Adenitire argues, this alone is sufficient to conclude that Article 50 cannot be invoked in the absence of an Act of Parliament, if giving notice could be considered to result in the abrogation of such rights (as will be discussed below).

However, the reasoning in Thoburn suggests that the common law also gives protection to a broader idea of the constitutional settlement between the citizen and the state, and similarly prevents this settlement from being significantly altered in the absence of express statutory authorisation.

This proposition follows most clearly from Laws LJ’s definition of a constitutional statute, and the connection drawn between constitutional statutes and constitutional rights. As above, a constitutional statute on Laws LJ’s definition is one which either conditions the general, overarching legal relationship between citizen and state; or which enlarges or diminishes the scope of fundamental rights. The former category clearly suggests the broader constitutional arrangements pursuant to which citizens are governed, while the latter refers to the narrower idea of directly enforceable human rights. However, both categories are subject to the same protection from implied repeal, which is justified on the basis that Parliament must expressly legislate for any amendment or abrogation of those rights or arrangements.

By way of example, the Scotland Act 1998 and other devolution statutes are included in Laws LJ’s suggested examples of constitutional statutes. Although the Scotland Act does confer the right to vote in Scottish Parliament elections on individuals, it seems clear that it is an example of a statute which attracts constitutional status by virtue of its definition of the conditions according to which citizens are governed, and thereby the relationship between citizen and state. Plainly, what the law is concerned to preserve is the constitutional settlement of devolution: once it has been established that the people of Scotland should be governed by a Scottish Parliament within the scope of its devolved competence, that settlement may not be significantly altered, otherwise than by the unambiguous legislative will of the sovereign Parliament.

The same reasoning applies to the ECA. As Laws LJ said in Thoburn, “[i]t may be that there has never been a statute having such profound effects on so many dimensions of our daily lives [as the ECA]”. This is not solely because EU law provides us with certain fundamental rights against the state, but because the EU represents an entire supra-national legal system, with its own capacity to legislate and its own “judicial and administrative machinery” (as Laws LJ also put it in Thoburn). By incorporating that system into UK law through the enactment of the ECA, Parliament altered the means by which citizens are governed; the relationship between the citizen and the state; and therefore the constitutional settlement of the UK. It follows that this cannot be undone by an exercise of prerogative power, or pursuant to a lesser Parliamentary endorsement in a debate or resolution: the Thoburn approach leads to the conclusion that constitutional rights and the prevailing constitutional settlement can only be substantially altered by express words in an Act of Parliament. In just the same way as express legislation would be required to undo the existing devolution arrangements, an Act of Parliament must be required to dispense with the involvement of the EU in the existing constitutional settlement.

Would triggering Article 50 abrogate EU rights?

The critical question, therefore, is whether invoking Article 50 would in fact destroy the currently existing constitutional settlement, or abrogate the constitutional rights conferred by EU law. Again, it is possible to argue that it formally would not. Giving notice under Article 50 results only in the start of the negotiation process, which, as Elliott observes, would have an uncertain outcome. It may be that the result of the process would be a replacement agreement between the UK and the EU, which would protect the relevant rights; or that at some stage, Parliament would legislate to authorise the withdrawal and the abrogation of those rights.

However, the fact that the outcome of the process is uncertain demonstrates why invoking Article 50 without a legislative mandate cannot be lawful. It is clear that if Article 50 were to be invoked and no further steps were to be taken, two years after the date of notification the UK would cease to be party to the EU treaties. At that time, EU law would cease to bind the UK state, and all directly effective provisions of EU law would cease to be enforceable in the UK courts (because the treaties would no longer require them to be given effect in the UK for the purposes of s.2 ECA). In substance and effect, this would remove the EU from any involvement in our constitution, and amount to an abrogation of rights previously enjoyed by UK citizens. This would have been caused directly and exclusively by the giving of notice under Article 50.

It is true that this outcome may be prevented by some further action being taken, such as the UK withdrawing its Article 50 notification (if that is possible) or concluding a withdrawal agreement. However, this would lead to an unusual situation, whereby the legality of the notification would depend on subsequent events. Given the well-established administrative law principle that ultra vires acts are void ab initio, this is highly unsatisfactory. Either the exercise of the prerogative to trigger Article 50 would be lawful and effective at the time, or it would be unlawful and void. The validity of the initial act cannot be altered by unpredictable subsequent events. The only consequence of invoking Article 50 that can be anticipated with any confidence is that it will, in two years’ time, result in withdrawal from the EU and EU rights being lost, and it is on the assumption that this consequence will result that the legality of the notification should be assessed.


For these reasons, if the Thoburn approach is correct, it leads to the conclusion that the Prime Minister may not invoke Article 50 unless expressly authorised to do so by an Act of Parliament. It may be politically impossible for Parliament to refuse such authorisation, in light of the referendum result, but this fact does not alter the applicable legal principles. Whether, and to what extent, the High Court addresses the implications of Thoburn for the dispute concerning the Article 50 process currently pending before it will be a matter of great interest.

Gavin Creelman, trainee solicitor, Herbert Smith Freehills LLP. The views expressed are personal, and are not intended to reflect those of Herbert Smith Freehills LLP.

(Suggested citation: G. Creelman, ‘The Relevance of Thoburn to the Article 50 “Trigger” Debate’, U.K. Const. L. Blog (6th Sept 2016) (available at

26 comments on “Gavin Creelman: The Relevance of Thoburn to the Article 50 “Trigger” Debate

  1. Willson, LL.B
    September 7, 2016

    I had a long career in consumer advice, protection and trading standards in the North East of England, and knew the Weights and Measures Officer primarily involved in this case. A man, who, undeservedly, was much maligned by some, he, like myself long retired, and it is fair to say that he is one of “nature’s gentleman” and would be modestly intrigued that this case may prove to be of such significance in what I applaud as challenges to the UK executive power. This whole business has reawakened and invigorated my 70 year old brain; when I was a law undergrad in the late 60’s I must admit that I found constitutional and administrative law a bit of a chore, 50 years later I am rereading Denning, Bingham and restudying the subject with enthusiasm!

  2. Pingback: Why the sovereign UK Parliament has no backdoor exit out of Brexit | AL's LAW

  3. John Hartigan
    September 7, 2016

    It is rather disconcerting that the High Court has anything to do with UK Government’s authority to trigger Article 50. We have been through four months of campaigning and a relatively clear referendum result from the UK electorate on this 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 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; discussed in detail at:

    • Chris A
      September 9, 2016

      But none of the points mentioned has triggered any change in the legal situation. The Government may have the policial mandate to proceed with the Brexit, but it still has to go through with the legal procedures to do this – as it would have to do with any other point in a manifesto.

    • paulobrennan
      September 12, 2016

      Is the referendum result itself a decision to withdraw from the EU by the UK made “in accordance with its own constitutional requirements”? You seem to suggest that it is, John Hartigan, on the basis that the Government’s manifesto in the General Election was to implement the outcome of the referendum. If that is the case then the UK Government is under an obligation under the EU Treaties to serve the Article 50 notice now, yet it has not done so and promises to prevaricate at least until the end of this year.

      Unless it is proclaiming that it is wilfully in breach of its duty under Article 50, it would appear that the Government is of the view that the decision to serve the Article 50 notice and the decision to leave the EU are one and the same, in other words that it is the Government that makes the decision informed by the referendum result, and that the decision, to be made under the Crown Prerogative, has yet to be taken. If a separate decision has to be made in order to implement the “will of the people” then the manifesto pledge – just like most other manifesto pledges – has to be delivered by Government successfully delivering the Parliamentary votes required for implementation of the promise. For the reasons elaborated elsewhere on these pages rights of UK citizens under the EU Treaties cannot simply be abrogated by a prime ministerial decision, no matter how large the focus group that was consulted prior to the decision being made.

      The referendum outcome was the first part of the process required for the UK to leave the EU. It remains to be seen whether the Government will be successful in persuading Parliament to make the decision it has promised to implement. A referendum vote in favour of leaving is arguably a necessary condition for the UK to leave the EU but it is not a sufficient one.

  4. Bob Edgar
    September 7, 2016

    Consider: if there had been no referendum, would the Government have the right to invoke article 50 as a simple course of business? I can’t imagine that to be the case but IANAL.

  5. Willson, LL.B
    September 7, 2016

    Never disconcerting for me when the “power(s)” exercised or proposed to be exercised by the executive are subject to review and legal scrutiny, long may (no pun intended) it continue, My opinion is that the vast majority of the UK electorate presumed that exiting the EU would be as painless legally simple and as straightforward as terminating a wine or gym club membership.

    • John Hartigan
      September 8, 2016

      This is a unique set of circumstances where the electorate have given a direct instruction to the Government and Parliament. Triggering Article 50 is the first step in that process. Neither Parliament nor the Courts should exercise their discretion (appropriate in perhaps almost any other circumstance) in such a way that this decision of the people will be frustrated. Parliament and the Courts have the power; that doesn’t mean they have the right.

      I think most voters were aware of the two year exit timetable and that leaving was likely to be incredibly complex.

      • paulobrennan
        September 12, 2016

        Please see my comment above (if it got by the moderator) which perhaps would have been better posted here. Parliament is sovereign and has the right as well as the power to do as it sees fit. I think what you mean is that Parliament and the Courts would be foolhardy to resist the will of the people. There might be some merit in that point of view if we knew what the will of the people actually is, but we only know what they voted against, not what they voted for.

  6. Pingback: Brexit | Constitutional legislation, fundamental rights and Article 50 – Public Law for Everyone

  7. Antony Carter
    September 8, 2016

    The question of legitimacy with the EEC/EU referenda is raised because, in this representational democracy at least, they have only been used by Prime Ministers desperate to remain such, by buying off extreme left(Labour) (1975) or right(Tory)(2015/16) wing rebels within their party when they have inoperably wafer thin majorities.

    Therefore, as is evidentially clear, referenda relating to our european commitments have not been called to settle thorny constitutional questions but rather to settle internal party political power struggles so the political party in question could continue to govern and the PM in question could remain in power. Ironically both referenda led to the PM departing.

    It follows therefore that they were not called with the interests of the nation or its constitution in mind and therefore lack in any political or moral legitimacy. They are a corruption of our democratic model. Subsequently it is only right that Judicial Review is being used to determine the question of legality of the (potentially) consequential use of executive powers excited by this particular referendum.

    • John Hartigan
      September 9, 2016

      The motives behind the 1975 and 2016 referendums are irrelevant. Pledges to hold these referendums were explicitly included in their respective general elections (October 1974, May 2015). Whether we agree with holding them or not, there was a mandate for these referendums to take place and the results should be respected. Parliament and the Courts should not seek to frustrate the direct instruction of the electorate.

      • Antony Carter
        September 13, 2016

        Regrettably fatal to your argument John are
        1. It wasn’t an instruction. The referendum was advisory. Parliament passed the European Union Referendum Act 2016 without binding itself to the outcome.
        2. It was Parliament that enacted the EURA 2016 seeking the viewpoint of the populace to inform itself, not as an instruction for the Executive to act upon. That the Governing political party promised to bind itself to the result does not bind Parliament.
        3. For the Executive to ride roughshod over the sovereignty of Parliament by exercise of the Royal Prerogative without Parliament debating and determining its future course of action consequent to an Act it enabled to inform itself is hugely undemocratic.

        Finally I would submit that the motives behind the referenda in question are hugely relevant given the enormous consequences of their respective outcomes. Particularly the 2016 referendum as it is not yet irrevocable.

      • whitenightf3
        September 17, 2016

        Can we all remember this; Parliament is not and never has been Sovereign.

        They took a vote on it in January 1784 as to where ultimate Sovereignty lay with the lawfully anointed King, King George III or with the elected House the King won the vote by one vote 190 against 191 and by Parliamentary vote it was decided the King was fully Sovereign.
        The doctrine of Parliamentary Supremacy is also false taught by A.V Dicey and retracted by him. Oliver Cromwell dissolved Parliament by force on three occasions.

        “The will of the people under constitutional English law is supreme over the
        sovereign and over parliament.”
        Albert Burgess


        “The voice of the people is the voice of God.”

  8. Steve
    September 8, 2016

    Thanks for a great article Gavin.

    Interesting to note that it may take an act of parliament to trigger article 50. If enough MPs vote it down then Brexit could be a “no go” after all.

  9. Willson, LL.B
    September 9, 2016

    It “may” take an Act Of Parliament (once again no pun intended) given that we are a parliamentary democracy without a written constitution, whatever the outcome many of us welcome the legal challenges to what was a policy designed to improve the electoral chances of Cameron and the Conservative Party. I bought and read a book that set out the pro and con “Brexit” case also studied the useful House Of Commons Library briefings on the subject; our excellent local newspaper “The Newcastle Journal” gave equal coverage to those who supported “Remain” and those “Leave”. I suspect that a minority of the electorate appreciated the legal, political and economic difficulties of exiting and studied the subject in any depth before casting their vote in the Referendum. I have a feeling that UK ex pats living abroad, suddenly find their retirement days less sunny, they too were in my thoughts when I voted,

  10. Grahame
    September 10, 2016

    I am one of the UK Citizens named in the People’s Challenge to the Government on Article 50.

    The question of depriving UK Citizens of citizenship rights is a fundamental part of the case that the 6 of us are making.

    Obviously the claimants, intervenors and interested parties cases overlap to a large degree but we believe that the argument that the government can’t use ancient royal prerogative to remove UK citizens rights.

    You can follow more on our Crowd Justice crowdfunding campaign page including some updates written by John Halford, Bindmans LLP who is our solicitor.

  11. mike fearon
    September 11, 2016

    This is an interesting contribution. I would make a couple of points in response.

    Whether “triggering” Article 50 amounts to an abrogation of the ECA and a loss of rights

    The argument originally advanced by Elliot et al was that it does, and Stephen Laws has argued in support that once the UK is no longer bound by the Treaties the ECA has nothing to which it can give effect. I have suggested that the uncertain nature of the effect of giving notice contradicts those arguments, but I have acknowledged the strength of the argument that, once the Treaties cease to apply, the Act no longer has any effect in UK Law.

    On further reflection, I think this argument underplays the significance of the words “from time to time created or arising” in s2(1). When rights (etcetera) are created or arise during the currency of the UK’s Treaty obligations, the ECA ensures that these are (in shorthand) “enforceable” in the UK . The ECA does not stipulate that those rights, once established, are dependent on the currency of the Treaties. If they have “from time to time” arisen or been created during that period of currency, they are, by virtue of the ECA, “to be given legal effect…..recognised and available in law and be enforced, allowed and followed accordingly”. Unless and until the ECA is repealed or amended by Parliament, its effect is extant, and rights and remedies available under it in the UK remain unchanged.

    When the Treaties cease to apply, as may be anticipated at an unforeseeable (see Article 50 (3)) date, this does not remove any rights already established or enforceable in UK Law. To do so would require repeal or amendment of the ECA. “Thoburn” appears to support this view.

    It seems to me that Mr. Creelman needs to address the issue of whether, in the light of the above, notice under article 50 can be regarded as diminishing extant “fundamental rights” or alters in any way the relationship between the citizen and the state, up to the date at which the Treaties cease to apply. If my analysis is correct, it contradicts his conclusions that giving notice will “result in …… EU rights being lost”, and that “it is on the assumption that this consequence will result that the legality of the notification should be assessed”. If the underlying assumption is incorrect, Thoburn may not be relevant, and the question of whether the ECA is a “constitutional” statute, may not need to be addressed.

    Whether the “supra national legal system” is relevant

    Notwithstanding the above, membership of the EU does provide for the automatic incorporation into UK Law of EU legislation, After the date of cessation of UK membership, the Treaties cease to apply, and any further rights which might be established (or lost) as a result of subsequent EU legislation will not be available. The ECA will not give effect to them in UK law. Membership also brings actions of the UK government within the jurisdiction of the Court of Justice of the European Union. The CJEU “hears both preliminary references from Member States’ national courts, ……… and allegations of a failure to Act by an EU institution, body, office or Agency”, and “has the power to impose a large fine on a Member State for failure to comply with its rulings” (House of Commons Library Standard Note IA/5397).

    It seems to me that this indicates that there is, as Mr. Creelman suggests, a supra national legal system over and above the application of European Law and Directives, to which effect is given in UK law by the ECA. Mr. Creelman argues that this “altered the means by which citizens are governed ….. and therefore the constitutional settlement of the UK”. He suggests that an Act of Parliament “must be required” for the UK to revert to a constitutional settlement predating the ECA.

    However, Mr. Creelman is relying on the words of Laws LJ related to “the repeal of a constitutional act or the abrogation of a fundamental right”. The above analysis indicates that there is no repeal, express or implied, of the ECA consequent upon giving notice under Article 50. Nor is there any abrogation of rights acquired up to the time of the entry into force of a new agreement, or the expiry of the notice period or extension thereof. If the analysis is correct, neither repeal nor abrogation will happen without express approval of parliament, and there is no conflict with the obiter in Thoburn.

    There remains the question over whether action which may be expected to lead to:

    • the exclusion of the EU from the process of defining the future legal framework within which the UK government operates; and

    • the elimination of a supranational (EU) legal process for determining whether the UK is complying with EU legislation;

    equates to an abrogation of a fundamental right. This may be arguable, but I am not sure that Mr. Creelman makes any case for it. The ECA provides for the supremacy of European law and for a supranational “supreme court” whilst the UK is a party to the Treaties, but is (I believe) silent on what will happen if that relationship ceases.

    It may be arguable that there is a fundamental right to allow the EU to continue to issue Directives which bind the UK Government, but it seems to be a right which is only of value if the future decisions of the UK parliament are somehow unacceptable to the majority of UK citizens. Should citizens need redress against the State, the sanctions available to the CJEU are in any event only to levy fines on the UK government. This in itself is not a remedy which benefits the aggrieved citizen(s). It may be a difficult argument to present.

  12. John Hurst.
    September 13, 2016

    Are we not forgetting that the present Constitutional settlement is the Bill of Rights, which is a peace treaty not a repealable Act of Parliament, which has been passed down the generations per the Coronation Oath?

    Because that is so, surely the prerogative extends to unmaking treaties subject to subsequent ratification by Parliament.

    • Grahame
      September 13, 2016

      There are individual citizenship rights at stake and the prerogative cannot be used to remove those as argued by Gavin. The ECA was not a peace treaty

      You can follow more on our Crowd Justice crowdfunding campaign page including some updates written by John Halford, Bindmans LLP who is our solicitor.

    • Antony Carter
      September 13, 2016

      Just so. However the boundaries of the Royal Prerogative as settled in the Bill of Rights have been constrained, curtailed and ever more sharply defined by subsequent legislation such as the ECA 72 as outlined in the findings of cases such as Thoburn not to mention that the evolution of conventions has passed the exercising of those prerogatives from the Crown acting unilaterally to the Crown’s Ministers (ie the Executive) acting on its behalf.

      There is also the point that once the exercise of the Royal Prerogative to unmake the Treaties of Rome, Nice, Amsterdam, Maastrich, the Single European Act and Lisbon has been exercised by triggering art 50, then ratification by Parliament is made academic to the point of nugatory because there is no way back within the price this country can afford or ever be willing to pay.

  13. John Hartigan
    September 14, 2016

    The website does not appear to enable me to reply to each of the replies I have received, apologies.

    The report of the House of Lords Constitution Committee released only yesterday addresses some of the points raised in this debate. They have concluded that Parliament should be consulted. However, the fundamental issue here is who is sovereign – Parliament, the Executive (via the Royal Prerogative) or the electorate?

    Those who believe that Parliament is sovereign argue that Parliament must approve the triggering of Article 50. Should the Executive do so without Parliamentary approval then they are undermining a key part of our democracy. Ordinarily, I would wholeheartedly agree. Governments must govern, but they cannot and should not act against the will of Parliament. Parliament is more sovereign than the Executive. However, Parliament ultimately derives its authority from the electorate.

    Elected at periodic general elections, the UK electorate sends representatives (not delegates) to legislate as the MPs see fit (guided by manifestos but otherwise reliant upon an MP’s judgement). The electorate can dismiss their MP at the subsequent general election. In this particular situation, the electorate has been asked about the Executive’s policy on the EU – should we Leave or Remain? Parliament consented to this process knowing full well that it was intended to be decisive. In effect, Parliament and the Executive delegated this question to the electorate. The electorate have given a clear answer. It is a relatively mute point as to whether Parliament or the Executive has the authority to pull the trigger on Article 50 – the trigger must be pulled.

    The House of Lords Constitution Committee are entirely sensible that the Executive should seek the approval of Parliament before triggering Article 50. This would indeed be prudent, but I would argue not a necessity. Unfortunately, the Committee report ducks the real issue. If only Parliament is deemed to have the authority to decide whether to pull the trigger on Article 50, then does Parliament have the right to refuse to pull the trigger? I would argue, in this particular set of circumstances, that the electorate are ultimately sovereign and not Parliament. Holding onto this principle will secure our democracy.

    As I argue in Betrayal of Britain, Parliament has begun to by-pass the electorate on constitutional change. The principle that Parliament should seek consent from the electorate for constitutional change is what requires urgent debate and agreement.

  14. David. Hutchinson
    September 24, 2016

    With reference to Robert Craig’s article posted on 8 July 2016, I quote:

    ” 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 the assertion that triggering Article 50 by using crown powers does not require fresh legislation. Is there any constitutional lawyer out there who is able to refute the final paragraph of Robert Craig ‘s observations?


  15. Pingback: Bonfire of EU rights: Bring on the Brexit bureaucrats! | AL's LAW

  16. Rob Kaye
    October 7, 2016

    “Those who believe that Parliament is sovereign argue that Parliament must approve the triggering of Article 50. ”

    I believe that Parliament is sovereign. It follows that Parliament could pass an act restraining the Crown from invoking Article 50. But it hasn’t.

    I’d go further and say that in incorporating the Lisbon Treaty, Parliament has legislated for all the rights in the treaty to be given effect. These rights include the right of the state to invoke Article 50, and this right is effected by the Crown as it is the Crown which is responsible for the overseas relations of the state.

  17. Pingback: Robert Craig: Miller: An Index of Reports and Commentary | UK Constitutional Law Association

Leave a Reply to Willson, LL.B Cancel reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Ordinary membership

UKCLA yearly membership (ordinary)


Student membership

UKCLA yearly membership (student)


Associate membership

UKCLA yearly membership (associate)


%d bloggers like this: