In the Kingdom of England up tothe Kingdom of Great Britain —and the United Kingdom sincethe royal prerogative was one of the central features of the realm 's governance. Dicey gives the standard definition of what prerogative powers as follows: It is clear that the existence and extent of the power is a matter of the common law of Englandmaking the courts the final arbiter of whether a particular type of prerogative exists or not.
This piece will analyse their arguments and suggest that, contrary to their conclusions, it is the Government, under the Royal Prerogative, that has legal authority to start the Article 50 process.
The Article 50 Process This piece assumes that it will be Article 50 that is used to begin the exiting process as argued Royal prerogative powers here. It will also assume that the exiting process will begin; whilst there have been some suggestions that the United Kingdom will not try to exit the European Union I argue that this is unlikely as a matter of political fact whilst legally, of course, the Government and Parliament could just ignore the referendum and carry on as normal.
Article 50 reads as follows: Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. A Member State which decides to withdraw shall notify the European Council of its intention…. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
There are three things to note here: As such, the nature of this decision making process is purely a matter of domestic law. Third, Article 50 requires two things to start the leaving process: However, politically, it is hard to ignore.
The question then is who gets to decide we are withdrawing from the Union and who then notifies the European Council? So what are the constitutional imperatives involved in treaty withdrawal?
The United Kingdom has no codified constitution and so it is hard to know from first glance who or what gets to decide. Certainly the Government are of the opinion that it is for them to decide that the United Kingdom wishes to exit the European Union. Of course, the Government have not stated on what basis they have the authority to initiate the Article 50 process.
However, it seems that they would presumably be utilising their power under the Royal Prerogative, which has always contained powers relating to foreign affairs. This has historically involved the making of treaties at international level.
While the Ponsonby Convention now on a statutory footing in Part 2 of the Constitutional Reform and Governance Act does require that treaties be laid before the Houses of Parliament for a period of 21 days before they are ratified, the ability of the Government ratify treaties remains a prerogative power, as does the power to amend or withdraw from treaties.
Crucially, however, any obligations arising from international law treaties do not take effect at domestic level until Parliament chooses to incorporate all or part of the international law into the domestic sphere.
On a simplistic analysis it would seem, then, that the Government specifically, presumably, the Prime Minister can, at the international level, use the Royal Prerogative power of foreign affairs to trigger the Article 50 process.
This is because our constitutional arrangements leave it to the Government to conduct foreign affairs. In isolation, the exiting process would be a paradigm case of conducting international affairs through the prerogative power.
In this way, the Government can activate Article 50 today, tomorrow, or in ten years. Inter-play between Statute and Prerogative Nonetheless, as Barber, Hickman, and King rightly point out the relationship between statute and the Royal Prerogative has long been contentious.
When the power of the Executive…has been placed under Parliamentary control, and directly regulated by statute, the Executive no longer derives its authority from the Royal Prerogative of the Crown but from Parliament.
The precise scope of this principle is uncertain; some would say it is narrow, and if Parliament wishes to frustrate the Royal Prerogative it must speak clearly and not leave its intention to mere implication.
European Communities Act and Royal Prerogative As noted above, Article 50 is a one-way street that, at the eclipse of two years without a deal to the contrary, releases the United Kingdom of its Treaty obligations.
Since Parliamentary intention trumps prerogative power, the Royal Prerogative cannot be used to initiate the withdrawal process. Instead, it must be Parliament that does so.The Royal Prerogative are a set number of powers and privileges held by The Queen as part of the British constitution.
Nowadays, a lot of these powers are exercised on Her Majesty’s behalf by. The royal prerogative is a body of customary authority, privilege, and immunity, recognised in the United Kingdom as the sole prerogative of the Sovereign and the source of many of the executive powers of the British government.
Many powers relating to the Armed Forces are in fact contained within the Royal Prerogative, reaching right up to the fact that the Royal Navy itself is maintained as part of the Prerogative. Prerogative powers or the royal prerogative are defined by A.V.
Dicey as being “ the remaining portion of the Crown's original authority, and it is therefore the name for the residue of discretionary power. The royal prerogative refers to those powers left over from when the monarch was directly involved in government, powers that now include making treaties, declaring war, deploying the armed forces, regulating the civil service, and granting pardons.
One of the greatest peculiarities of the British constitution is that of the Royal Prerogative. Powers which have established over time as those which The Queen holds as Sovereign, though now.