Miller, The Prerogative and Constitutional Change
| Pages | 448-454 |
| Author | |
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| DOI | 10.3366/elr.2017.0443 |
The Supreme Court's decision in
It will provide a brief summary of the relevant rules regulating the prerogative considered in the case along with how they were applied by the UK Supreme Court (“UKSC”), arguing that the contorted logic of the majority in the case in applying the Common Law rules regulating the exercise of the prerogative is evidence that they were not the real grounds upon which the case was decided. Rather, the key reason for the majority finding that the government lacked the constitutional authority to give notification under article 50 (“article 50”) of the Treaty on European Union (“TEU”)
Prerogative powers are executive powers which do not owe their origin to legislation or the Common Law but are a legacy of the original powers of the monarch under medieval constitutional arrangements. Although they are commonly criticised for their seemingly undemocratic nature, the most important powers are now exercised by the government. The particular prerogative at issue in
However, as with any prerogative power, the power to sign and withdraw from treaties could be affected both by statute and by Common Law rules. At issue in
Prerogative powers cannot be used to change the law;
Prerogative powers can be curtailed or restricted by statute; and
Prerogative powers cannot be used to circumvent or frustrate the purposes of a statute.
The idea that prerogative powers cannot be used to change the law dates back at least to the
The practical question concerns whether triggering article 50 in fact changes domestic law.
The majority, by contrast, found that changes in the law which would eventually occur on the lapse of the time period in article 50
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