Brexit Flashcards
Art 50 TEU (2)
No right to withdraw unilaterally
MS has right to decide to withdraw but is bound by withdrawal process prescribed by EU law
Involvement of parliament prior to triggering art 50? (2)
Executive has prerogative power under UK constitution to conduct foreign relations and negotiate/ conclude treaties
Executives prerogative power is legally restrained
Executive has prerogative power under UK constitution to conduct foreign relations and negotiate/ conclude treaties (3)
Government may trigger Art 50 unless it decides to seek parliament authorisation first
Or it’s prerogative power is altered by constitutional convention
Should the latter apply, government have to seek and secure approval before triggering Art 50
Executives prerogative power is legally constrained (3)
Invocation of Art 50 requires some sort of statutory approval
De Keyser - where parliament had spoken on an issue, the executive could not have recourse to any prerogative power that touched the same subject matter
Courts might be expected to declare that a statute approving Art 50 notification is necessary
Analogy with de keyser misplaced? (2)
Triggering art 50 has no legal effect of ECA 1972 nor does ECA provide for withdrawal
Only repeal of ECA requires formal statute
Miller 2017
Could government trigger Art 50 without reference to parliament? (2)
Unless primary legislation permits it, the royal prerogative doesn’t enable ministers to change statute or common law
Government had to make reference to parliament
Art 1 EU (Notification of Withdrawal) Act 2017 (2)
Power to notify withdrawal from the EU
PM may notify under Art 50(2) UKs intention to leave EU
Ponsonby rule
S20 Constitutional Reform and Governance Act 2010
If HoL resolves in 21 days, international treaty shouldn’t be ratified
Constitutional dualism (2)
AoP required to give effect to provisions of a treaty in domestic law
Would be undermined if no withdrawal agreement concluded within 2 years or if agreement relatively thin
If a withdrawal agreement is secured….
Constitutional Reform and Governance Act 2010 applies
There should be a fully informed parliamentary debate
When is ECA 1972 repealed (3) plus Act
The day UK leaves EU under EU Withdrawal Bill
All EU law that applies to UK will be concerted into UK statute law
After minute consideration of that vast mass of law, unwanted parts will be expunged
How will unwanted parts of EU law be expunged?(2)
Further repeal Bills for major rules
Fast track procedure for technical rules that only requires 1 vote in each house
EU (Withdrawal) Act 2018 aims (4) plus 3 clauses
Repeal ECA on day UK leaves EU - clause 1
End supremacy of EU law in UK law and convert EU law to domestic law
Create temporary powers to make secondary legislation to correct “EU derived” law - clause 7
Enable domestic law to reflect the content of a withdrawal agreement under Art 50 - clause 9
