A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament

26 Pages Posted: 22 Nov 2016  

Professor Gavin Phillipson

Durham Law School

Date Written: November 2016


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.

Keywords: Article 50 TEU, EU Referendum, Prerogative, Statute, European Communities Act, De Keyser's principle, frustration principle

Suggested Citation

Phillipson, Professor Gavin, A Dive into Deep Constitutional Waters: Article 50, the Prerogative and Parliament (November 2016). The Modern Law Review, Vol. 79, Issue 6, pp. 1064-1089, 2016. Available at SSRN: https://ssrn.com/abstract=2873995 or http://dx.doi.org/10.1111/1468-2230.12230

Gavin Phillipson (Contact Author)

Durham Law School ( email )

University of Durham
50 North Bailey
Durham, DH1 3ET
United Kingdom
(0191) 3342805 (Phone)

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