A dive into deep constitutional waters: Article 50, the prerogative and parliament

Phillipson, Gavin

Abstract

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 brief 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 issue that 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.

Citation

Phillipson, G. (2016). A dive into deep constitutional waters: Article 50, the prerogative and parliament. Modern Law Review, 79(6), 1064-1089. https://doi.org/10.1111/1468-2230.12230

• Journal Article Type: Article
• Acceptance Date: Sep 15, 2016
• Online Publication Date: Nov 21, 2016
• Publication Date: Nov 1, 2016
• Deposit Date: Sep 15, 2016
• Publicly Available Date: Nov 21, 2017
• Journal: Modern Law Review
• Print ISSN: 0026-7961
• Electronic ISSN: 1468-2230
• Publisher: Wiley
• Peer Reviewed: Peer Reviewed
• Volume: 79
• Issue: 6
• Pages: 1064-1089
• DOI: https://doi.org/10.1111/1468-2230.12230
• Public URL: https://durham-repository.worktribe.com/output/1397522