Tag: UK EU Referendum
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John Adenitire: Exiting the EU Constitutionally
In Miller v Secretary of State [2016], the High Court held that the Government cannot use its prerogative power to initiate the withdrawal of the UK from the EU. In doing so, the High Court rejected every single argument that the Government put to it asserting the existence of the prerogative power. The main reason…
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Richard Lang: The Article 50 Litigation and the Court of Justice: Why the Supreme Court Must Refer
I’m glad if it was the Lord Chief Justice’s concern about the reversibility or otherwise of the Article 50 procedure which catalyzed the current debate on whether the Article 50 litigation needs a reference to the Court of Justice, as has been rumoured, but on the face of last week’s judgment it seems that the…
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David Feldman: Brexit, the Royal Prerogative, and Parliamentary Sovereignty
The issues in Miller In R. (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) judges had to decide, as a matter of law, on the constitutionally correct procedure for deciding whether and when to notify the President of the European Council that the UK intends to leave the EU,…
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Jeff King: What Next? Legislative Authority for Triggering Article 50
The High Court judgment in Miller v Secretary of State for Exiting the European Union last Thursday made it clear that an Act of Parliament is required for a notice under article 50(2) of the Treaty of the European Union. My view is that an appeal is unlikely to be successful, but on any view…
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Jean Leclair: Brexit and the Unwritten Constitutional Principle of Democracy: A Canadian Perspective
Much has been written on whether a prior approval by the UK Parliament is required to trigger the withdrawal process from the European Union under Article 50 of the Treaty on European Union. I will not presume to comment on the technical legal issues raised by this debate. Instead, I wish to highlight how the…
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John Finnis: Terminating Treaty-based UK Rights: A Supplementary Note
Editors’ note: This is cross-posted from the Judicial Power Project website and forms the body of a short paper published today by the Project. In a Judicial Power Project paper of 26 October, Terminating Treaty-based UK Rights, I argued that UK law and constitutional practice about double tax treaties provides a clear and uncontroversial parallel…
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Simon Renton: An Unintended Consequence of Article 50?
The issue of “Sovereignty” sits at the heart of Santos and M v Secretary of State for Exiting the European Union (CO/3281/2016 and CO/3809/2016) (the “Article 50 case”). In the Island of Palmas case (International Law by Vaughan Lowe at page 138 (2007)) the arbitrator described the concept of Sovereignty in the following terms: “Sovereignty…
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Kenneth Armstrong: Bootstrapping Brexit: A European Rescue of the Nation State?
In a report published on 20th October, the European Union Select Committee of the House of Lords set out the argument for close parliamentary scrutiny of the UK’s withdrawal from the European Union. The central claim made in the report is that a middle path may be found between the Government’s apparent preference for retrospective…
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John Finnis: Terminating Treaty-based UK Rights
Editors’ note: This is cross-posted from the Judicial Power Project website and forms the main part of a short paper published today by the Project. Oral argument in the Brexit Case in the Administrative Court last week left an easy case looking a bit difficult. It allowed Lord Pannick QC, for the lead claimant, to…
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Elizabeth Campion: Pay No Attention to the Man Behind the Curtain: Parliamentary and Governmental Power in the Wake of the EU Referendum
The case of Santos and M v Secretary of State for Exiting the European Union (CO/3281/2016 and CO/3809/2016) (“Santos“) was heard in the High Court this week by the Lord Chief Justice, the Master of the Rolls and Sales LJ. Santos has been called “one of the most important constitutional law cases ever decided”. The…