A dive into deep constitutional waters: Article 50, the prerogative and parliament

Phillipson, Gavin

doi:10.1111/1468-2230.12230

A dive into deep constitutional waters: Article 50, the prerogative and parliament

Phillipson, Gavin

Authors

Gavin Phillipson

Abstract

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.

Citation

Phillipson, G. (2016). A dive into deep constitutional waters: Article 50, the prerogative and parliament. Modern Law Review, 79(6), 1064-1089. https://doi.org/10.1111/1468-2230.12230

Journal Article Type	Article
Acceptance Date	Sep 15, 2016
Online Publication Date	Nov 21, 2016
Publication Date	Nov 1, 2016
Deposit Date	Sep 15, 2016
Publicly Available Date	Nov 21, 2017
Journal	Modern Law Review
Print ISSN	0026-7961
Electronic ISSN	1468-2230
Publisher	Wiley
Peer Reviewed	Peer Reviewed
Volume	79
Issue	6
Pages	1064-1089
DOI	https://doi.org/10.1111/1468-2230.12230

Files

Accepted Journal Article (966 Kb)
PDF

Copyright Statement
This is the accepted version of the following article: Phillipson, Gavin (2016). A dive into deep constitutional waters: Article 50, the prerogative and parliament. Modern Law Review 79(6): 1064-1089, which has been published in final form at https://doi.org/10.1111/1468-2230.12230. This article may be used for non-commercial purposes in accordance With Wiley Terms and Conditions for self-archiving.