Robert Craig: Triggering Article 50 Does not Require Fresh Legislation

Posted: July 11, 2016 by tallbloke in solar system dynamics

Robert Craig offers opinion on the ability of the executive to trigger Article 50 without needing fresh legislation.

UK Constitutional Law Association

Robert CraigIntroduction

Considerable public interest has recently been focused on the ‘trigger’ mechanism for exit from the EU which is set out in Article 50 of the Lisbon Treaty. Expert opinion has divided between those who believe that the power to trigger Article 50 rests with the Executive using the legal authority of the royal prerogative from the Crown with no further parliamentary involvement necessary and those who argue that fresh legislation is required to confer statutory authorisation on the Executive to do something which could render nugatory rights under the European Communities Act 1972 (‘ECA’). An ingenious third way involving section 2(2) of the ECA has also been suggested.

This note suggests that no fresh legislation is required and that the power to trigger Article 50 rests with the Executive but for very different reasons to those suggested by what might be termed the ‘prerogative’ camp. The live question…

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  1. E.M.Smith says:

    All it takes is the EA EU diplomat de jour to say “We’re outta Here!” and blow a loud raspberry on the way out…

  2. E.M.Smith says:

    “EU diplomat”…

  3. E.M.Smith says:

    Carefully reading the referenced article, plus more UK law such as De Keyser’s Hotel, it looks to me like his argument is well founded. The Lisbon Treaty was made part of UK law, said treaty incorporating the article 50 power to exit, existing UK law put such powers in the executive, The Prime Minister is the top executive, so can exercise that power…

  4. tom0mason says:

    IMO the argument hinges on —
    “A little work is required to tease out what exactly are the constitutional requirements which mean that the Prime Minister can trigger the mechanism. This requires briefly considering the doctrine of Separation of Powers. In the UK, the functions of the legislature include scrutinising the executive, controlling supply, legislating, debating issues etc. The functions of the executive include implementing the law, controlling foreign affairs, proposing legislation etc.”…

    This “little work” may also require the PM to convince parliament of the best course of action as there is no set recipe to follow. As Rob Baston comments —

    “Prime Minister (i.e. the Executive) would trigger notice under Article 50 of the TEU but then Parliament refused to amend or repeal the ECA? If it is not possible to “un-trigger” Article 50, does that not lead in practice to an untenable situation where the EU regards the UK’s accession to the EU treaties as ended, but Parliament does not?”

    In other words the PM can initialize Article 50 but Parliament still has to act to generate the necessary procedure. It would be too easy for malcontents within Parliament to attempt to scupper the PM’s best efforts thus ensuring a long and tortuous procedural wrangle overtakes the majority of Government business, much to the detriment of the UK.

    Hopefully the PM’s team are up standard.

  5. oldbrew says:

    BBC report: ‘Brexit: Debate on second EU referendum after millions sign petition’

    The Petitions Committee said the debate would be on 5 September as a “huge number” had signed it.

    But the committee said the debate did not mean it was supporting the call for a second referendum and it was “too late” to change the referendum rules.

    Re the huge number: ‘EU referendum petition hijacked by bots’

    “4chan is famous for this sort of mischief – and if websites don’t have systems in place, they will get abused.”
    Some members of the 4chan message board have claimed responsibility for the hijack.

    “I voted 33,000 times. Left a script running while I was taking a shower,” wrote one member.

  6. Richard111 says:

    May Day today. Where is the dance?

  7. Sparks says:

    When Ireland voted against the Lisbon treaty it was intimidated and told to vote again, think about that, Britain who voted in favour of Brexit and was part of the same… Anyway, now that Britain is leaving the unelected political union, we have to negotiate borders in northern Ireland with the EU, or would it take a genius to understand that Ireland must leave too?

  8. tallbloke says:

    Sparks; I think UK govt will adopt a wait and see approach to the N.I. – Eire border. No need to solve problems that don’t exist. I’d love to see Eire leave the EU and help reshape the UK as ‘The British Isles’. What might bring that about will be the demise of the Euro in a few years time.