Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum
| Published date | 01 November 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12229 |
| Date | 01 November 2016 |
Casting Aside Clanking Medieval Chains: Prerogative,
Statute and Article 50 after the EU Referendum
Robert Craig∗
This article confronts the controversies surrounding Article 50 by analysing the relationship
between statute and prerogative in the UK. The piece focuses on domestic constitutional issues
and suggests a new way of classifying the relationship between statute and prerogative into
two types falling under ‘the abeyance principle’ or ‘the frustration principle’. The abeyance
principle means that where statute and prerogative overlap, the prerogative goes into abeyance.
The frustration principle means that where statute and prerogative give rise to potential incon-
sistencies, but do not overlap, the prerogative cannot be used inconsistently with the intention
of parliament as expressed in the relevant legislation. It then argues that Article 50 has the
status of primary or ‘primar y-equivalent’ legislation which could justify applying the abeyance
principle. This would mean that the trigger power would be exercised on statutory authority
rather than through prerogative powers. If the courts are unable thus to construe the relevant
legislation it argues EU law requires the courts to bridge the gap. Alternatively, if the abeyance
principle is not applicable, it argues the frustration principle could apply but the circumstances
in this litigation fall outside it. In the further alternative, EU law could require the frustration
principle itself to be set aside in this case.
The decision on 23 June 2016 by the United Kingdom to leave the European
Union sent political shock waves across the continent and the rest of the world.
In the wake of the referendum result, a great deal of attention in domestic
political discourse was suddenly focused on Article 50 of the Lisbon Treaty
which sets out how a country can exit the EU.1Following indications by the
Secretary of State for Exiting the European Union, David Davis, the Prime
Minister made clear on 20 July 2016 that Article 50 will not be triggered before
1 January 2017.2In the midst of these seismic political developments, a newand
urgent question about the source of the Government’s power to trigger Article
50 was raised and resulted in a number of legal actions being commenced.
The applicants in the litigation seek a declaration that it would be unlawful
for the Crown to trigger Article 50 without fresh legislation authorising such
action.
In a packed court in the RCJ on 19 July - so packed that the hearing was
transferred to a bigger court next door - Lord Justice Leveson PBQD gave
permission at a rolled-up hearing for judicial review to be brought, led by Lord
∗Law Department, London School of Economics. The author would like to thank Gavin Phillipson,
Aileen McHarg and the anonymous reviewer for their helpful comments on earlier drafts as well as
Jo Murkens for helpful discussions on EU law issues. Responsibility remains with the author.
1 http://www.bbc.co.uk/news/world-europe-36632579. Last accessed 30 September 2016.
2 http://www.bbc.co.uk/news/uk-politics-36841066. Last accessed 30 September 2016.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1019–1089 1041
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Prerogative, Statute and Article 50
Pannick QC.3Gazing down at the seven QCs on the front row, the judge said
that the Lord Chief Justice will hear the substantiveapplication in mid-October
with the possibility of a ‘leap-frog’ to the Supreme Court in December and
judgment by the end of the year. This timetable was designed expressly to
avoid any legal interference with the political timetable laid down by the Prime
Minister. LJ Leveson made clear that the courts would not countenance any
delay to the political process from the litigation timetable itself.
The political importance of the outcome of this litigation cannot be over-
stated. Indeed, there were vociferous protests, demanding that the trigger be
exercised forthwith, outside the RCJ on the day of the permission hearing. It
is clear, however, that an immediate trigger has been ruled out. This creates
the space for the courts to consider the interplay of a number of fundamental
constitutional issues raised by the applicants in this matter. A crucial part of the
background to this story is Article 50 itself.
The provisions of Article 50 are part of the Lisbon Treaty which came into
force on 1 December 2009. They set out the parameters for a country to leave
the EU. The important parts of Article 50 of the Lisbon Treaty are as follows:
Article 50
1. Any Member State may decide to withdraw from the Union in accor-
dance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European
Council of its intention. In the light of the guidelines provided by the
European Council, the Union shall negotiate and conclude an agreement
with that State . . . It shall be concluded on behalf of the Union by the
Council, acting by a qualified majority, after obtaining the consent of
the European Parliament.
3. 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 . . . unless the European Council, in agreement
with the Member State concerned, unanimously decides to extend this
period.
4. For the purposes of parag raphs 2 and 3, the member of the European
Council or of the Council representing the withdrawing Member State
shall not participate in the discussions of the European Council or Coun-
cil or in decisions concerning it . . .
This article directly addresses the power to trigger Brexit under Article 50. It
examines controversial questions about the legal basis of that trigger power by
analysing the relationship between statute and prerogative in the UK. It argues
that in a modern constitutional democracy, the preference should be for using
democratically-passed laws rather than outdated prerogative powers.
To assist in this analysis, it suggests a new way of classifying the relationship
between statute and prerogative into two categories which reflects the case
3 Lord Pannick QC will be representing Ms Gina Miller against the Secretary of State for Brexit,
David Davis. Therewere a number of other litigants represented at the hearing who were invited
to intervene in the lead action if they wished.
1042 C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1019–1089
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