A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament
| Published date | 01 November 2016 |
| Author | Gavin Phillipson |
| Date | 01 November 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12230 |
A Dive into Deep Constitutional Waters: Article 50,
the Prerogative and Parliament
Gavin Phillipson∗
This article analyses the Article 50 TEU debate and the argument that for the UK Government
to trigger the formal withdrawal process without explicit parliamentary authorisation would be
unlawful, because it would inevitably result in the removal of rights enjoyed under EU law and
the frustration of the purpose of the statutes giving those rights domestic effect. After a br ief
survey of Article 50, this article argues first of all that the power to trigger Article 50 remains
within the prerogative, contesting Robert Craig’s argument in this issuethat it is now a statutory
power. It then suggests a number of arguments as to why the frustration principle may be of
only doubtful application in this case, and in doing so it re-examines one of the key authorities
prayed in aid of it - the Fire Brigades Union case.
INTRODUCTION
The ambiguities surrounding the royal prerogative, including its definition,
scope and the roles of both parliament and courts in checking its exercise, may
be aptly described as one of the central problems of the UK constitution.1This
article is concerned with a specific aspect of this problem: the vexed question
of the relationship of prerogative powers with statute in the particular context
of EU law. This issue has suddenly assumed huge public prominence as a result
of the shock victory for the ‘Leave’ campaign in the EU referendum on 23rd
June this year, and the indication by the Government that it considers itself
to have the existing right under the royal prerogative to ‘trigger’ the formal
withdrawal process under the by-the now famous Article 50 of the Lisbon
Tre a t y.2Since it would be relying on a prerogative power (the ‘foreign affairs’
prerogative), the Government sees no formal requirement for parliamentary
authorisation of such notification, whether in the form of leg islation or other-
wise.3This has led to not only intense debate amongst legal commentators, but
also an application for judicial review against David Davis, Secretary of State
∗Durham Law School. The author would liketo thank Rober t Craig, Colm O’Cinneide,Paul Craig,
Carl Gardener, Alison Young, Robert Schuetze and the anonymous reviewer for comments on an
earlier draft and Jo Murkens for valuable discussions on relevant EU law points; any remaining errors
are the responsibility of the author. All websites cited were last accessed on 12 September 2016.
1 For a well-known parliamentary critique, albeit one written before some recent reforms, see
Public Administration Select Committee, ‘Taming the Prerogative: Strengthening Ministerial
Accountability to Parliament’, 4th Report, HC 422 (2003–04). See further the Conclusion of
this article.
2 The Treaty came into force on 1 December 2009. See below at 1066–1069 for an account of
the different provisions of Article 50.
3 See the Written Answer given by FCO Minister Baroness Anelay: ‘The EuropeanCommunities
Act 1972 does not require prior approval of actions byAct of Parliament. The European Union
1064 C2016The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1019–1089
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Gavin Phillipson
for Exiting the European Union,4which contends that the Government lacks
the lawful power to trigger the Article 50 process in the absence of specific
parliamentary authorisation granted through fresh legislation. The litigation –
and discussion on the legal blogs5- has raised some particularly tricky questions
about the relationship between the prerogative, statute and EU law; the latter
takes effect in UK law through the European Communities Act 1972 (ECA),
as amended by the European Union Amendment Act 2008 (2008 Act), which
gave recognition to the Lisbon Treaty, including Article 50, in UK law.6Article
50 has of course never yet been invoked but is now of critical importance to the
UK since, as the UK Government has acknowledged, it ‘is the only lawful way
to withdraw from the EU’7, which the Government firmly intends to pursue.
It is important to stress at the outset that no-one doubts that the general
power to negotiate, enter into and withdraw from treaties arises under the
prerogative. As observed in Wheeler, ‘Ratification of a treaty is, as a matter of
domestic law, an executive act within the prerogative power of the Crown’,8a
finding confirmed by numerous other decisions, including that of the House
of Lords in Rayner (Mincing Lane).9It has further been recently confirmed that
decisions to enter into treaties, together with the linked rights to negotiate
and withdraw from them, are not in themselves subject to judicial review.10
However, the peculiar feature of the Article 50 question arises from the well-
known fact that EU law is given domestic effect via the ECA, thus giving
rise to a set of rights that are enforceable in domestic law. This has led to one
of the key arguments in the Article 50 debate, based on a general principle
of constitutional law stated with particular clarity by the House of Lords in
Rayner:
the Royal Prerogative, whilst it embraces the making of treaties,does not extend to
altering the law or conferring r ights upon individuals or depriving individuals of
rights which they enjoy in domestic law without the intervention of Parliament.11
Act 2011 does define some circumstances where this is required, but these do not include a
notification under article 50’: HL Deb, WA HL6447 10 March 2016.
4Miller vSecretary of State for Brexit, case no CO3809/2016 and related cases. The legal background
to the litigation and its progress thus far is explained more fully in the article in this issue by R.
Craig: ‘Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the
EU Referendum’ (2016) 79(6) MLR 1041–1042.
5 See in particular the ser ies of articles published on the blog of the UK Constitutional Law
Association in the weeks following the referendumresult: https://ukconstitutionallaw.org/blog/
6 It did so by adding the Lisbon Treaty to the list of Treaties in the European Communities Act
1972 (ECA), s. 1.
7The Process for Withdrawing from the European Union, Cm 9216 (February 2016) at [3.2].
8R (on the application of Wheeler) vOffice of the Prime Minister [2008] EWHC 1409 (Admin), at
[15]).
9JH Rayner (Mincing Lane Ltd) vDTI [1990] 2 AC 418, 500.
10 The treaty-making prerogativewas one of the areas identified in the seminal decision in GCHQ
as being excluded from the ambit of judicial review (Council of Civil Service Unions vMinister
for the Civil Service [1985] AC 374, HL(E)); the exclusion has been subsequently affirmed in
subsequent decisions including JH Rayner (ibid); and dicta in the Supreme Court as recently as
Lord Kerr).
11 n 9 above, 500.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(6) MLR 1019–1089 1065
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