On September 28th the British government released its legal position on the internal constitutional position regarding the invocation of Art. 50 TEU to begin the process of leaving the European Union after the referendum result on June 23rd. The legal pleadings were released at the behest of a court order pursuant to an action taken by ‘People’s Challenge’, a crowd-funded initiative which argued that the public had a right to view the government’s legal position on the constitutionality of its invoking Art. 50 without consulting Parliament.
The broader challenge which gave rise to the formulation of the legal pleadings in the first place, is an action taken by private citizens which attempts to prevent the government from triggering Art. 50 without the explicit deliberation and consent of the parliament through a piece of legislation; proceedings in which a decision is expected later this month (R (Miller and others) v. Secretary of State for Exiting the European Union CO/3809/2016; CO/3281/2016). In some ways, then, notwithstanding the momentous political context of the case, it involves a fairly routine challenge to the exercise of executive power familiar in most constitutional systems.
However, under the patchwork British constitution – partially written, partially unwritten, partially modern, partially pre-modern – the question of the extent and scope of executive power (the power in question originally stemming from the inherent royal powers of the monarch) is a much more open-ended one, involving a blend of statute law, common law and these amorphous executive powers based in the royal prerogative.
To muddy the waters even further, the event which gave rise to the current government’s policy to leave the EU, the referendum result, has an ambiguous status in British constitutional law. Strictly speaking, it is parliament and not the people directly, which is sovereign under the constitution ...Zum vollständigen Artikel