Ewan Smith: What Would Happen if the Government Unlawfully Issued an Article 50 Notification without Parliamentary Approval?

“It’s helpful to recall the legal debate that greeted Britain’s entry into the EEC. In Blackburn v. Attorney General, the claimant sought to challenge the ECA itself, along with Britain’s ratification of the EEC Treaty. Faced with the suggestion that this was an irreversible act, Lord Denning considered the constitutional procedure for withdrawal:
“If Her Majesty’s Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens.” (Emphasis added)
This is an authoritative statement of the proper constitutional relationship between the government and Parliament when a treaty and a statute intersect. When the government signs a treaty, and Parliament incorporates it by statute, it is for Parliament to “go back on it and try to withdraw from it.” That should already be manifest to British lawyers; it is important that it we make it manifest in Europe.”
Ewan Smith, Lecturer, Hertford College, Oxford

UK Constitutional Law Association

Ewan SmithIn “Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role” Nick Barber, Jeff King and Tom Hickman argued that it is Parliament, and not the government, who get to decide whether to trigger an notification under Article 50 of the Treaty of the European Union.  I agree with them.

Barber, King and Hickman base the argument on general grounds, drawing on the Case of Proclamations. However, it is important to consider the specialised rules that apply to the government’s power to conclude treaties. It is also important to think about the consequences of unconstitutional action, both as a matter of domestic and international law. It is not obvious that a British court could prevent the government from issuing a notification, nor is it obvious that an unconstitutional notification would be ineffective in international law. This post will explain these complications; then explain why an English court can issue a…

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