This blog post is by Scott Styles.
The use of the prerogative power to invoke Article 50 of the TEU has been much discussed since the Brexit vote on 23 June 2016 (including this initial post on the matter and a follow-up post). The present author believes that only an Act of Parliament can be used to invoke Article 50 but if I am mistaken then a very interesting route to Scottish independence potentially opens up.
If the UK government were to persist in arguing that the Prerogative can be used to trigger Article 50 and that submission were to be upheld by the courts then that will logically lead to a conclusion that Westminster will not welcome: that the Prerogative can be used to dissolve the Union between Scotland and England.
To understand why we must look at the often overlooked legal mechanics of the union between Scotland and England because there is a strong analogy with the Articles of Union 1706 and the Acts of Union 1707 and the Treaty of Accession to the EC and the European Communities Act
Creating and Dissolving Unions: International Treaties and Acts of Parliament
The terms “Articles or Treaty of Union” on the one hand and “Acts of Union” tend to be used interchangeably by authors discussing the Union of Parliaments, for the understandable reasons that their substantive texts are the same, however legally they are quite different types of document. The Articles of Union signed on 2 July 1706 were an international treaty agreed between the two sovereign kingdoms of England and Scotland with the respective negotiating “teams” acting under the prerogative. However, this 2 July treaty did not create the Union of Scotland and England any more than the accession treaty on 22 January 1972 between UK, Denmark and Ireland with the existing EC members signed by the then Prime Minster, Ted Heath, made the UK a member of the Common Market. The UK only became a member of the EC after the European Communities Act 1972 had been passed on 17 October 1972 and came into effect on 1 January 1973. Likewise, Scotland and England were not conjoined until the passing of both the English and Scots Acts of Union which ratified the Articles of Union of 1706. This distinction between treaty and act is made very clear in the preamble to the 1707 (Scots) statute:
Whereas Articles of Union were agreed on the Twenty Second day of July in the Fifth year of Your Majesties reign by the Commissioners nominated on behalf of the Kingdom of England under Your Majesties Great Seal of England bearing date at Westminster the Tenth day of April then last past in pursuance of an Act of Parliament made in England in the Third year of Your Majesties reign and the Commissioners nominated on the behalf of the Kingdom of Scotland under Your Majesties Great Seal of Scotland bearing date the Twenty Seventh day of February in the Fourth year of Your Majesties Reign in pursuance of the Fourth Act of the Third Session of the present Parliament of Scotland to treat of and concerning an Union of the said Kingdoms
And Whereas an Act hath passed in the Parliament of Scotland at Edinburgh the Sixteenth day of January in the Fifth year of Your Majesties reign wherein ’tis mentioned that the Estates of Parliament considering the said Articles of Union of the two Kingdoms had agreed to and approved of the said Articles of Union with some Additions and Explanations And that Your Majesty with Advice and Consent of the Estates of Parliament for establishing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland had passed in the same Session of Parliament an Act intituled Act for securing of the Protestant Religion and Presbyterian Church Government which by the Tenor thereof was appointed to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming the Tenor of which Articles as ratified and approved of with Additions and Explanations by the said Act of Parliament of Scotland follows
If it is correct that the mere use of the Royal Prerogative is sufficient legal authority to trigger Article 50 of the TEU and so revoke and repeal the European Communities Act 1972 then it would seem to follow by analogy that the Royal Prerogative could be used to in the context of Scotland leaving the UK, because it is submitted that if the Prerogative can be used to invoke Article 50 which is not an international treaty but part of the domestic law and so effectively repeal the European Communities act 1972 the same process could be used by the Scots government to revoke the Scots Act of Union of 1707.
This could be by the Scottish Government using the Prerogative power to revoke the international treaty (the Articles of Union) and thence by implied repeal revoke the Act of Union. This in turn naturally raises the question of whether the Scottish First Minister could use the Prerogative in this way.
In principle I do not see why this would not be possible.
First, the pre-1707 Scots monarch enjoyed the Prerogative and the Articles of Union were made under the prerogative.
Second, the post-devolution Scots monarch is bound by the advice she receives from the Scottish Government.
If the Scottish Parliament, after a referendum vote for independence, passed an Act instructing the First Minister to revoke the Articles of Union or if the First Minister were simply to use her right to advise the crown, the sovereign would be obliged to comply. Once the Articles are revoked, so too would the Act of Union be revoked. Thus Scotland could leave the Union without the permission of the Westminster Parliament and Westminster could not stop it!
Readers of this post will be wondering how this works in terms of the devolution settlement. Is the constitution not a reserved matter under the Scotland Act 1998? Let us consider the relevant provisions of the 1998 Act, namely section 30 and Schedule 5.
SCHEDULE 5 Reserved matters
Part I General reservations
The Constitution
1 The following aspects of the constitution are reserved matters, that is—
(a) the Crown, including succession to the Crown and a regency,
(b) the Union of the Kingdoms of Scotland and England,
(c) the Parliament of the United Kingdom,
(d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
(e) the continued existence of the Court of Session as a civil court of first instance and of appeal.
2(1) Paragraph 1 does not reserve—
(a) Her Majesty’s prerogative and other executive functions,
(b) functions exercisable by any person acting on behalf of the Crown, or
(c) any office in the Scottish Administration.
Note that under paragraph 2(1)(a) the Prerogative is expressly declared not to be reserved. Therefore there seems nothing in law to prevent the Scottish Government exercising their Prerogative powers to revoke the Articles of Union and hence the Act of Union!
Perhaps those arguing in favour of the Prerogative’s role in the UK exiting the EU should think carefully about its potential role in Scotland exiting the UK, as the royal prerogative might be an equally powerful means for the Scots people to leave the UK. This analysis of the Prerogative would allow Scotland to leave the UK without the permission of the British Government and Parliament. A sovereign people would thus achieve their independence by means of the prerogative powers of their sovereign.
Aberdeenunilaw 
Interesting, but clearly wrong. The author posts the text of the Scotland Act, Schedule 5, Parts I and II. Part II, Section 2(a) states “Her Majesty’s prerogative and other executive functions” are devolved, and the author exclaims “Therefore there seems nothing in law to prevent the Scottish Government exercising their Prerogative powers to revoke the Articles of Union and hence the Act of Union!” But Part I, Section 1(b) states that “the Union of the Kingdoms of Scotland and England” is reserved to Westminster. Clearly, there is something in law to prevent the Scottish government using the Prerogative to dissolve the Union. If contested by unionists citing Section 1(b), it’s not clear at all why the author’s viewpoint would win. This is a massive oversight on part of the author.
LikeLike
Thanks for your comment Daniel. Yes the “Union of the Kingdoms of Scotland and England” is a reserved matter, but that phrase I would argue, as a matter of statutory interpretation, refers to the Act of Union not the Fact of Union. It is the Acts of Union which are reserved as it was by those legislative acts of the two sovereign parliaments that in domestic law Great Britain came into existence. However, the Articles of Union were an extra legislative treaty which did not legally create any union at all. It therefore follows that the Articles of Union are not covered by the phrase “Union of the Kingdoms of Scotland and England” which only refers to the Acts of Union and therefore the Articles of Union could be revoked by the use of the prerogative. My point is the analogy with the invocation of Article 50, if that can be triggered by mere use of the prerogative with the inevitable consequence that the effect of European Communities act 1972 is nullified I can see no reason why the same procedure cannot be used with respect to the Articles of Union. If, however, the courts hold that the prerogative cannot be used to trigger Article 50, but rather hold that an Act of Parliament prospectively repealing EC 1973 is necessary before triggering Article 50 then yes the prerogative cannot be used to repeal. What is inconsistent is to argue that the prerogative can be used to dissolve the UK’s EU membership but not Scotland’s membership of GB. What is sauce for the British goose, is sauce for the Scots gander.
LikeLiked by 2 people
If “the Union of the Kingdoms of Scotland and England” was meant to refer only to the Acts of Union, it still wouldn’t support your position Scott, because the repeal of the Treaty or Articles of Union is not the same as the repeal of the Acts of Union, and both need to be repealed to dissolve “the Union” into which Scotland and England entered in 1707.
But it doesn’t refer simply to the Acts. The Acts, of course, are protected from modification under Schedule 4 of the Scotland Act. Schedule 5 is clearly referring to the “fact” of Union and not the “Act” of Union as you described it.
The 1707 Union did not abolish the Royal Prerogative, but it did abolish the Kingdom of Scotland, in respect of which the agency for it was exercised. The Scottish Ministers do not exercise the prerogative of the Kingdom of Scotland under the Scotland Act; any prerogative powers they hold are those of the Kingdom of Great Britain (as expanded). Both the text of the Articles of Union and the Union with England/Scotland Acts declare the Union to be perpetual: they extinguish the Kingdom of Scotland in the eyes of international law. So even if the Articles continue to exist and have effect in their own right in international law, they bind the UK generally and not “Scotland” or “England” because neither of them exist. This point is aptly dealt with in the Crawford and Boyle opinion that the UK Government published during the 2014 referendum.
The constitutional position is, however, that the Articles no longer have effect. The constitutional tradition of the United Kingdom treats the Acts of Union as ordinary statutes and the Crown in (Westminster) Parliament as the repository of all legal sovereignty.
LikeLike
The prerogative power to invoke Article 50 is not the same as the power to repeal the European Communities Act. An Act of Parliament is required to repeal the latter; it is not required to invoke the former.
Article 50 is a provision of a Treaty, in respect of which international legal rights and obligations between sovereign states are exerciseable. Invoking Article 50 has the effect, subject to its provisions, of extinguishing those relationships in international law.
This has no bearing on the continuing legal validity of the European Communities Act, which is an instrument of domestic law. The UK is a dualist state; otherwise the ECA would not be necessary.
The only “effect” of an Art 50 notification is that that Act ceases to bite insofar as its provisions only have effect in domestic law to the extent that there are obligations and rights in international law whose force and effect depend upon it. To avoid dysfunction, clearly statutory changes in the form of significant amendment or outright repeal of the ECA is necessary, but that requires Parliamentary consent and is a separate process from that of the invocation of Article 50.
Applying this to the Treaty or Articles of Union and the Union with England and Union with Scotland Act, you can see very quickly why the prerogative plainly cannot be used to dissolve the 1707 Union. First and foremost, even though the prerogative, generally, is not reserved, as you correctly identify in Schedule 5 para 2(1), the subject matter of the Union between the Kingdoms of Scotland and England is, as is the Parliament of the United Kingdom. The power to exercise the prerogative in that specific field is, therefore, circumscribed. The exemption you describe is a general one, and is stressing that Crown functions in general are not to be construed as reserved matters. If we were to adopt your reading of what this means, reserved matters as an entire concept would be meaningless. It is clear that the prerogative is only devolved in the areas that concern devolved competence. It’s concerned with things like the exercise of the prerogative of mercy, which is ostensibly a “Crown” function.
Even if you were to attempt to claim that the Scottish Government possesses exclusively the prerogative powers insofar as they apply to Scotland in this area, it still wouldn’t authorise the repeal of the Union. For the simple reason that after the Articles were agreed to, they were given domestic effect by Acts of the Parliaments of Scotland and England respectively, which have continuing force in domestic law. Even if the prerogative isn’t circumscribed by the reserved matters, exercising the prerogative would only disband the Articles of Union, and not the Acts of Union. The Acts of Union are the source of domestic law that provide for the existence of the Kingdom of Great Britain (as expanded) and its Parliament. Those could not be repealed otherwise than by primary legislation, and the Scottish Parliament would lack the legislative competence to repeal those Acts by virtue of Schedule 5 para 1.
More broadly, it is not tenable to maintain that the prerogative powers in particular with respect to foreign affairs resides with the Scottish Ministers. Against that logic the Scottish Government could set-up embassies or enter into Treaties with the international community. Clearly it cannot, lacking as it does sovereign personhood in international law.
LikeLike
Thank you for your comments Graeme.
Re UK, EU and Article 50
You espouse the orthodox dualist account that international law and treaties are for the Crown and domestic law for Parliament, and so treaties have no domestic effect unless ‘domesticated’ into UK law by statute. For normal international treaties that dualist account works but it does not work for UK membership of the EU. Once the EC Act 1972 came into effect on 1 January 1973 EU law became part of UK domestic law, including all EC/EU treaties, and is of course supreme over domestic law.
Here is the official position as set out at length in the UK parliament site at http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63304.htm
“2 The UK’s legal relationship with the EU
9. To come to a conclusion on whether a statutory provision is necessary to shield the doctrine of Parliamentary sovereignty from EU law requires an explanation of the relationship between national and EU law.
European Communities Act 1972
10. The UK is a ‘dualist’ state, unlike many continental European countries, which are ‘monist’.[2] In dualist states a treaty ratified by the Government does not alter the laws of the state unless and until it is incorporated into national law by legislation. This is a constitutional requirement: until incorporating legislation is enacted, the national courts have no power to enforce treaty rights and obligations either on behalf of the Government or a private individual.
11. Under the European Communities Act 1972 (ECA) Parliament voluntarily gave effect to the UK’s obligations and duties under the former Community and now EU Treaties in national law. The ECA defines the legal relationship between the two otherwise separate spheres of law, and without it EU law could not become part of national law.
12. Section 2(1) provides:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this sub-section applies.
More simply stated, section 2(1) means that provisions of EU law that are directly applicable or have direct effect, such as EU Regulations or certain articles of the EU Treaties, are automatically “without further enactment” incorporated and binding in national law without the need for a further Act of Parliament. Section 2(1) applies to EU law now and as it develops in the future “from time to time” either by Treaty revision “created by” or interpretation by the Court of Justice of the EU “arising under”. So, when an EU Regulation enters into force, it automatically becomes part of national law, as it does in the other 26 Member States on the same day. The uniqueness of section 2(1) is that it gives effect to directly applicable or effective EU law without the need each time for implementing legislation, as would usually be required for the incorporation of other obligations assumed under international law by a dualist State. The domestic courts are obliged to give full effect to section 2(1), in the light of the case law of the Court of Justice (section 3(1)).
13. Section 2(2), by contrast, applies to measures of EU law that are neither directly applicable nor have direct effect. This provision makes it possible to give effect in national law to such measures by secondary, or delegated, legislation, such as statutory instruments; importantly, such secondary legislation can amend an Act of Parliament (section 2(4)) since the delegated legislative power includes the power to make such provision as might be made by Act of Parliament.[3]
14. Section 2(4) also provides that:
any enactment passed or to be passed […] shall be construed and have effect subject to the foregoing provisions of this section” (the ‘foregoing provisions’ include section 2(1)).
15. Section 3(1) provides:
For the purpose of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).
16. Section 2(4) and 3(1) give effect to the doctrine of the supremacy of EU law, as interpreted by the Court of Justice, over national law; and where EU law is in doubt, requires UK courts to refer the question to the Court of Justice. As a consequence of the rule of construction in section 2(4) all primary legislation enacted by Parliament after the entry into force of the ECA on 1 January 1973 is to be construed by the courts and take effect subject to the requirements of EU law. This obliges the courts to disapply legislation which is inconsistent with EU law. This, in short, is what happened in the celebrated Factortame[4] case: Part II of the Merchant Shipping Act 1988 was held by the House of Lords to be inconsistent with EU law and therefore disapplied. The same principle was followed by the House of Lords in disapplying discriminatory provisions in the Employment Protection (Consolidated) Act 1978.[5] In neither Act was there any provision expressly providing for the later enactment to apply notwithstanding the ECA.
17. The power given to national courts under section 2(4) is remarkable, because, by disapplying provisions of primary legislation, the court refused on these two occasions to give effect to an Act—the will—of Parliament. It is also unique: it is only by virtue of the ECA that the courts have this power. Under the Human Rights Act, for example, the courts have the power to make a declaration of incompatibility, but not to disapply the offending statutory provision.
A challenge to that legal relationship – the ‘Metric Martyrs’ case
18. The relationship between EU law and national law—in this case national constitutional law—was most prominently tested in the ‘Metric Martyrs'[6] case, which was decided by the Divisional Court (part of the High Court) in 2002. The leading judgement was given by Lord Justice Laws. It is to counter the arguments made in this case, the Explanatory Notes tell us, that the so-called Parliamentary sovereignty clause was included in the Bill. Counsel for Sunderland City Council (one of the prosecuting authorities), Eleanor Sharpston QC, now the UK Advocate-General at the Court of Justice, argued before the Divisional Court that the binding effect of the EC Treaty in domestic law did not depend solely upon the terms of its incorporation by the ECA, but also upon the higher principle of the supremacy of EU law, independent of national law, established by the Court of Justice in cases such as Costa v ENEL.[7] In Costa v ENEL the Court of Justice held that:
It follows […] that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal base of the Community itself being called into question.
The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carried with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.[8]
The effect of this argument was that EC law had become entrenched, rather than merely incorporated, into domestic law, by virtue of a principle of EU law which was independent of constitutional principles of national law, such as dualism. If this argument were right, the consequence would have been that the EU institutions could set limits on the power of Parliament to make laws which regulate the legal relationship between the EU and the UK.[9]
19. Lord Justice Laws rejected the argument, saying that it would mean that Parliament, in enacting the ECA, had agreed to bind its successors to EU supremacy over it, which, being sovereign, it could not do: “[t]here is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy.”[10] In so deciding, he also held that the ECA was a “constitutional” statute which could not be impliedly repealed by subsequent statutes. His reasons for this finding were as follows:
“In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental […]. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and state in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the H[uman] R[ights] A[ct], the Scotland Act 1998 and the Government of Wales Act 1998. The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law. It maybe there has never been a statute having such profound effects on so many dimensions of our daily lives. The ECA is, by force of the common law, a constitutional statute.
“Ordinary statutes may be impliedly repealed Constitutional statutes may not. For the repeal of a constitutional Act the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual—not imputed, constructive or presumed—intention was to effect the repeal or abrogation? I think this test could only be met by express words in the later statute […].”[11]
20. We asked the witnesses to assess the impact of Thoburn. In his written evidence, Professor Bradley commented that, in failing to include the quotation above, the Government’s Explanatory Notes “do not present a balanced account of this complex judgment”.[12] We agree with this view. He concluded that four propositions could be drawn from the judgment:
“(1) All the specific rights which EU law creates are by the 1972 Act incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation.
“(2) The 1972 Act is a constitutional statute: that is, it cannot be impliedly repealed.
“(3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes.
“(4) The fundamental legal basis of the UK’s relationship with the EU rests with the domestic, not the European, legal powers. In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the 1972 Act were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case.”[13]
21. Professor Hartley summarised the judgment as follows: “the Thoburn principle is that the position of EU law in the UK and the sovereignty of the British Parliament ultimately depend on British law.”[14] Professor Allan as follows: “I think the Thoburn judgment affords quite a useful reconciliation. We go as far as we can to accept the primacy of the EU law, but without accepting the constitutional basis put forward by the European Court of Justice.”[15] And Professor Craig as follows:
“[M]y reading of Thoburn—I don’t think this at all unorthodox or heterodox—is as follows: what Lord Justice Laws said in Thoburn was that the constitutional impact of EU law on national law was not going to be dictated top-down by the European Court of Justice on our courts. The nub of his thesis was that whatever impact EU law had within the UK was going to be decided by UK constitutional precepts and by UK courts. That was not at all inconsistent in and of itself with the House of Lords decisions in Factortame and the Equal Opportunities Commission case. So it is for our courts to decide what they believe to be the impact of EU law within our national constitutional order. That is what I think Lord Justice Laws was saying, and rightly so, in the Thoburn case.”[16]”
Thoburn tells us that constitutional statutes cannot be impliedly repealed and that the ECA is a constitutional statute. To invoke an Article 50 withdrawal is not an act under international law, which can be made by prerogative powers, but rather is the exercise of a right conferred on the UK by the Treaty of European Union which is itself part of UK domestic law. It can only be invoked after first passing a statute.
LikeLiked by 2 people
“You espouse the orthodox dualist account that international law and treaties are for the Crown and domestic law for Parliament, and so treaties have no domestic effect unless ‘domesticated’ into UK law by statute. For normal international treaties that dualist account works but it does not work for UK membership of the EU. Once the EC Act 1972 came into effect on 1 January 1973 EU law became part of UK domestic law, including all EC/EU treaties, and is of course supreme over domestic law.”
Thus fundamentally misunderstands what the European Communities Act does. It is an enabling Act. It removes domestic obstacles to British compliance with the acquis communautaire by requiring domestic law to be read in conformity with EU law. It was a precondition of entering the EEC. It does not itself make us members of the EU. If Swaziland passed, in terms, an equivalent statute it would have no bearing on whether or not it was a member-state of the EU and any purported reliance upon the Lisbon Treaty to exercise rights, including Art 50, would have no meaning or effect.
However, now that the UK is a member of the EEC, repealing the ECA would not extinguish our obligations under international law; we would be held to be in breach of the Lisbon Treaty and it would be a matter for the other member-states to decide what sanctions if any we should face for that unilateral act of non-compliance.
By analogy, any state could undertake, unilaterally, for the purposes of their domestic law, to comply with the European Convention on Human Rights. They could do so irrespective of whether or not they were members of the Council of Europe. But if they weren’t, and the relevant sovereign state was, in domestic law, not in fact compliant with the ECHR, their citizens would have no recourse to Strasbourg. This was discussed at length when the Conservative Party were exploring options from a variety of abolishing the Human Rights Act or withdrawing from the European Convention on Human Rights. Each of those actions are standalone, but they also work together.
By similar sentiment, the ECA does not depend-upon the UK being a signatory to the Lisbon Treaty, but equally the UK being signatory to the Lisbon Treaty does not depend upon the ECA. The Act merely provides practical effect to our international rights and obligations in domestic law for as long as they do in fact exist.
EU law is *only* supreme for the purposes of domestic courts because Parliament has decided that it should be so. This was made clear in Factortame. It is also made clear in paragraph 11 of the report you quoted above. And in Thoburn.
The separateness of the two aspects means that, for example, if a statute purports in crystal clear terms that, notwithstanding the fact it would lead to the UK not conforming with its international obligations, Parliament nevertheless wishes to do something, it may do so. That is the context in which the prohibition against implied repeal, so infamously articulated by John Laws operates. The courts will assume that statutes, even if their apparent words contradict EU law, were intended to be compliant with EU law, in the absence of Parliament stating that they intend to violate EU law.
All of this, however, ignores the more fundamental point, which is that the exercise of Art 50 does not purport to repeal, impliedly or otherwise, the European Communities Act. It plainly does not claim to do that. Art 50 is a right that the UK Government enjoys under the treaty, which it entered into under its prerogative power. It is not purporting to exercise a right under our domestic law, by which the law of the European Union is in any case not itself bound.
To demonstrate this, consider if you will, a hypothetical situation where the UK Parliament passes a “Repeal of the European Communities Act Act”, which repeals the 1972 statute in its entirety. The Thoburn principle does not apply because the words are explicit. We are in that set of circumstaces still members of the European Union, but we are in breach of the treaties as national law no longer complies with Community law. In those circumstances, is it still your position that the UK Government cannot, under the prerogative, exercise a right under international law given our member-state status of the EU, to invoke Article 50?
UK law cannot dictate the terms of international law. It can only dictate the terms upon which international law is enforceable in domestic courts. In exercising the prerogative, the UK Government is not asking to do something in domestic law; it is doing something in international law. That much has been clear every time the UK Government has signed a new EU treaty. It has not required pre-authorisation to do so on any occasion. This was most prominently made clear in R (Rees Mogg) v SoS FCO back in 1993, when David Pannick attempted to argue pretty much exactly what he’s trying to argue now that the Maastricht Treaty could not be agreed to under the prerogative by the Government. His argument was emphatically rejected.
LikeLike
My view is here – http://obiterj.blogspot.co.uk/2016/08/brexit-and-uk-as-union-interesting.html
LikeLike
The main point isn’t only whether RP can be used to trigger A50 but in how RP is activated. The various Acts of Union didn’t end the different role of the monarch in Scotland and England. The fact that RP is not reserved means that any use of it to start a process to end a treaty that may not be reversed without the agreement of the EU implies that without Holyrood’s agreement the Queen of Scots can’t end Scotland’s EU membership via proclaimation. That doesn’t mean that Westminster can’t vote to activate A50 against Scotland’s wishes. Simply that even if the “Government” or May had the right to do so they can’t use RP in cases that affect the whole of the UK without Holyrood’s agreement.
LikeLiked by 1 person
As far as I’m concerned, the very foundation of the Articles/Treaties of Union are illegal as they did not carry with them a majority support of the Sovereign people of Scotland (and by that I refer to the Sovereign “plebs”). The monarch is not sovereign in Scotland–the “plebs” are and have been since the early 14th century (possibly even earlier). Using the English Sovereign’s Royal Prerogative can only have sway in England. It has no sway in Scotland. The sovereign people of Scotland are sovereign here and, as such, must be specifically asked the question and give their answer to it. Our Scottish answer was that the sovereign people of Scotland voted to remain in the EU and no Royal Prerogative of the English Sovereign can change that.
LikeLiked by 1 person
Very interesting reading,i find it irrelevant,i want independence for Scotland to be free to control our own affairs and resources and stand alongside all nations in this modern world today.
LikeLiked by 2 people