Lecture notes
brexit, parliament, the courts and the executive
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Lecture 12- Brexit, parliament, the courts and the executiveThe background
- The Lisbon Treaty Article 50 created a process for leaving the EU.
- A member state must give two years’ notice to allow time for member states and the
departing state to prepare their laws and systems, and agree on the future relationship.
- The terms of the post-departure settlement will be a new treaty between the EU and the
state that is leaving.
- Any new treaty signed by the UK executive must be approved by Parliament (Constitutional
Reform and Governance Act 2010).
Pulling the trigger on the Lisbon treaty
- Theresa May announced an intention to give notice, triggering the 2-year notice period, in
October 2016 stating that this would happen early in 2017.
- This was an intention to use a prerogative power – for the executive to take a decision
without the involvement of Parliament.
The legal challenge: R v secretary of state for exiting the European Union [2017] UKSC 5
- Miller argued that this was unlawful because the prerogative of foreign affairs did not allow
the executive to withdraw from a treaty without consulting parliament.
The constitutional issue
1. What is the extent of the prerogative power?
- It was clear that the executive has the prerogative of foreign affairs (to negotiate and enter
into treaty agreements).
- It was also clear that the effect of withdrawal would fundamentally alter the law in the UK
and the question was whether or not ministers were entitled to use the prerogative to make
changes that were normally for Parliament.
- Miller argued that triggering Article 50 would lead to exiting the EU and a major change to
the rights and freedoms of UK citizens which could only be authorised by Parliament.
1. Can Ministers act without the consent of the devolved nations?
- As we’ve seen, Parliament has devolved law making powers to Scotland/Wales/Northern
Ireland.
- By convention (the Sewel convention) Parliament will not pass a law that impacts on theses
nations without seeking consent.
- Did this convention also apply to the use of the prerogative?
The judgement
”Some of the most important issues of law which judges have to decide concern questions relating
to the constitutional arrangements of the United Kingdom. These proceedings raise such issues. As
already indicated, this is not because they concern the United Kingdom’s membership of the
European Union; it is because they concern (i) the extent of ministers’ power to effect changes in
domestic law through exercise of their prerogative powers at the international level, and (ii) the
relationship between the UK government and Parliament on the one hand and the devolved
legislatures and administrations of Scotland, Wales and Northern Ireland on the other “
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