\nA Couple Questions and Answers on the Legal Authority Underlying Brexit<\/b><\/p>\n
Q:<\/b> So, the referendum passed, right? Britain is leaving?<\/p>\n
A:<\/b> Yes, it passed. But no, it's not leaving yet. <\/p>\n
Q:<\/b> Why's that?<\/p>\n
A:<\/b> Because the referendum was advisory, not binding. What sets off the process is an Article 50 notification, which hasn't happened yet. <\/p>\n
Q:<\/b> A what?<\/p>\n
A:<\/b> Article 50(2) of the Lisbon Treaty. Here, it's short. I'll quote it for you: <\/p>\n
A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.<\/i><\/p>\n
Cameron is resigning, so he's not doing that. <\/p>\n
Q:<\/b> But, surely, the next Prime Minister is going to do that, right?<\/p>\n
A:<\/b> Well, we don't know who the next Prime Minister is going to be. Let's just punt, though, and say that it's going to be Boris Johnson. He's vocally anti-EU, and …<\/p>\n
… oh, wait, he wants to wait before getting out? Okay. <\/p>\n
Q:<\/b> But if the Prime Minister pulled the trigger, it would start the two year process to get out of the EU, right? <\/p>\n
A:<\/b> Uh…<\/p>\n
Q:<\/b> You're hedging.<\/p>\n
A:<\/b> Uh… where does it say that the Prime Minister has that power?<\/p>\n
Q:<\/b> You're the answer section. You tell me.<\/p>\n
A:<\/b> Okay, I'm cheating. Most of the UK's constitutional system isn't actually written down. But, theoretically<\/i>, the Prime Minister would leave the European Union by invoking the Royal Privilege. <\/p>\n
Q:<\/b> The what?<\/p>\n
A:<\/b> The power of the Queen. Which devolves to the Parliament. Which the Parliament then grants to the Prime Minister. Which the Prime Minister uses to invoke Article 50 and leave the European Union. <\/p>\n
Typically, that's how the Prime Minister deals with issues of foreign relations. And that's what seems to be contemplated here.<\/p>\n
Q:<\/b> And there's some kind of problem there? <\/p>\n
A:<\/b> Let's assume that some rogue Prime Minister decided that he wanted out of the EU, and — without consulting with Parliament or his ministers — he pulled the trigger on Article 50. What result? <\/p>\n
(Note that this abrogates a lot<\/i> of British law.)<\/p>\n
Q:<\/b> I don't know — the Article 50 process starts? <\/p>\n
A:<\/b> Yeah, maybe — if the Law Lords agree. But here's the thing: it requires them to come up with some really novel law. Typically, because the UK is a parliamentary democracy and not a serial dictatorship, the Prime Minister doesn't have the power to unilaterally abrogate statutes. <\/p>\n
As one would expect. <\/p>\n
Q:<\/b> But there was a referendum!<\/p>\n
A:<\/b> The referendum was advisory. Can a purely advisory enactment grant the Prime Minister powers which he is constitutionally denied? <\/p>\n
Q:<\/b> That seems less clear. But this seems like an issue of UK constitutional law. Why does the EU have to care? <\/p>\n
A:<\/b> Because of Article 50(1). Which says this:<\/p>\n
"Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.<\/i>"<\/p>\n
Q:<\/b> So, what, Parliament has to sign off on it?<\/p>\n
A:<\/b> Maybe. And that isn't even getting into the problems caused by Scottish and Northern Irish home rule: they're both bound to EU law semi-directly, and not even the UK's Parliament clearly seems to be able to abrogate their consent to EU law.<\/p><\/blockquote>\n
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\nNick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role<\/a><\/span>
\nIn this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the…\n<\/p><\/blockquote>\nView on Google+<\/a><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
