Article 50 - Royal Prerogative Or Parliament?

On 23 June 2016 the UK voted in a referendum to leave the European Union. While non-binding, the new government has said that the Brexit vote will be given effect.

The response in the UK to the referendum result was an outpouring of emotion and a cessation of effective government and opposition. However, within hours of the result, David Cameron resigned and a new government was quickly formed under his replacement as Prime Minster, Theresa May. As was always going to be the case however, the real result of the referendum has been to stir the debate further, not to put an end to it. Mrs May has said that "Brexit means Brexit", but that is like saying 'breakfast means breakfast', and is no definition at all. The debate about the precise terms on which we leave the EU and our relationships with the rest of the world will rage for years, possibly decades. All we know for certain at the moment is that the real process of withdrawal from the European Union, i.e. the triggering of Article 50 of the Treaty of the European Union, will happen in March next year.

Constitutional position

Article 50 provides that it is for the United Kingdom to decide to withdraw from the European Union according to its own "constitutional requirements". The United Kingdom has no codified constitution however, and there are competing theories as to what our constitutional requirements actually are. The Government is of the view that it can trigger Article 50 utilising its power under the Royal Prerogative, which allows the Government, on the Sovereign's behalf, to conduct foreign affairs and enter into international treaties.

The other view is that Parliament must decide to trigger Article 50, either by means of an Act or otherwise.

This is of course a political rather than legal argument; those who are in the Royal Prerogative camp will tend to be Brexiteers. Those who are in the Parliament camp are likely to be Remainers. As is frequently the case in political arguments, however, the courts have been called upon to adjudicate. But the real reason for the fight is not an argument about the finer points of our constitution. It is whether Parliament should be given the right to subvert the will of the people in determining the issue of sovereignty. It is classic Oliver Cromwell stuff. The...