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Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum

23 Pages Posted: 22 Nov 2016  

Robert Craig

London School of Economics & Political Science (LSE)

Date Written: November 2016

Abstract

This article confronts the controversies surrounding Article 50 by analysing the relationship between statute and prerogative in the UK. The piece focuses on domestic constitutional issues and suggests a new way of classifying the relationship between statute and prerogative into two types falling under ‘the abeyance principle’ or ‘the frustration principle’. The abeyance principle means that where statute and prerogative overlap, the prerogative goes into abeyance. The frustration principle means that where statute and prerogative give rise to potential inconsistencies, but do not overlap, the prerogative cannot be used inconsistently with the intention of parliament as expressed in the relevant legislation. It then argues that Article 50 has the status of primary or ‘primary‐equivalent’ legislation which could justify applying the abeyance principle. This would mean that the trigger power would be exercised on statutory authority rather than through prerogative powers. If the courts are unable thus to construe the relevant legislation it argues EU law requires the courts to bridge the gap. Alternatively, if the abeyance principle is not applicable, it argues the frustration principle could apply but the circumstances in this litigation fall outside it. In the further alternative, EU law could require the frustration principle itself to be set aside in this case.

Keywords: Article 50, Prerogative, Statute, European Communities Act, European Union (Amendment) Act 2008, De Keyser's principle, Direct Effect principle, Primacy principle

Suggested Citation

Craig, Robert, Casting Aside Clanking Medieval Chains: Prerogative, Statute and Article 50 after the EU Referendum (November 2016). The Modern Law Review, Vol. 79, Issue 6, pp. 1041-1063, 2016. Available at SSRN: https://ssrn.com/abstract=2873994 or http://dx.doi.org/10.1111/1468-2230.12229

Robert Craig (Contact Author)

London School of Economics & Political Science (LSE) ( email )

Houghton Street
London, WC2A 2AE
United Kingdom

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