After Article 50 and Before Withdrawal: Does Constitutional Theory Require a General Election in the United Kingdom Before Brexit?

I. Introduction: Parliamentary Sovereignty vindicated, but only for now?

On the 24th January 2017, the United Kingdom Supreme Court delivered its judgment in the Miller appeal. The comprehensive majority judgment is surely set to become a seminal (re)statement on the nature of the United Kingdom’s constitution. Despite the media storm surrounding the High Court judgment which it upheld, the Supreme Court decision can be regarded as an entirely constitutionally orthodox judgment. Faced with the UK Government’s argument that it had the executive authority to use the ancient and residual prerogative power to withdraw from the Foundational Treaties of the European Union, the Supreme Court held that such a transformative constitutional action could only be carried out by Parliament. This is because it is has been established constitutional doctrine since the 17th century that only Parliament may change the “law of the land” through the exercise of its legislative sovereignty.

Accordingly, following lively debate and the ‘ping-ponging’ of the Bill between the House of Commons and the House of Lords, the European Union (Notification of Withdrawal) Act 2017 received the Royal Assent on 16th March 2017. The UK Government resisted numerous amendment proposals – including amendments regarding the rights of EU citizens in the United Kingdom and providing Parliament with a vote on the terms of the withdrawal treaty which had been passed by the House of Lords. Now fully-licensed with the means to pull the Article 50 trigger, the Prime Minister Theresa May has set 29th March as the date of notification to the European Council.

In vindicating the constitutional principle of Parliamentary Sovereignty, the Supreme Court refused to recognise that the result of the EU referendum of 23rd June has any legal significance ...

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