Blick, A., & Gordon QC, R. (2016). Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty on European Union. London: The Constitution Society.
This paper was published in 2016. At this time, the UK courts had not yet heard the Gina Miller that eventually showed May could not rely on the Royal Prerogative for Brexit. As such, the article seems to be a very good background on the specifics why the Royal Prerogative was ultimately deemed as insufficient by UK courts.
The article begins by noting that its main interest lies a specific requirement to trigger the Article 50 of the Treaty on European Union (TEU), which the need for the process of exiting the EU to proceed in accordance with the member’s constitutional due process.
In a very straightforward manner, Blick and Gordon enumerate a number of reasons that make the triggering of Article 50 an act of “constitutional significance”.
- Radical change to legal framework and rights of citizens.
- Irrevocability of the act.
- Inability to determine if the EU will approach negotiations cooperatively or aggressively.
Blick and Gordon do an overview of constitutional change in Britain.
Since Britain does not have a written constitution, there is more room for constitutional flexibility than in other countries. In this sense, they note a tension between a number of views.
- Not having supermajority requirements, the UK’s Parliament is able to come to decisions that prevent breakage of constitutional continuity. This also gives the Parliament a primacy over courts, resulting in what many argue is a more democratic type of society. Ergo, Parliament can be seen as a due protector of constitutional continuity.
- Parliament has imposed unto itself a number of restrictions in the past; indeed limiting its role to some key constitutional aspects.
- The lack of need for supermajority requirements also diminishes deliberation about constitutional matters to the level of any other policy.
- There were a number of contradictory gaps in the implementation of Brexit, as is the fact that nobody foresaw that the referendum could trigger a number of democratic conundrums (e.g. what would take primacy in the event of disagreement between referendum and Parliament).
Altogether, Blick and Gordon show that there are reasons to believe that the Parliament’s role in some aspects of constitutional change could be debated. Yet, they close by noting that Brexit is also likely to lead to a constitutional change of unprecedented scale that may require to be a lot more cautious than otherwise.
Blick and Gordon overview the history of the Royal Prerogative, the two key points being:
- The Royal Prerogative is considered to be a ‘residual’ power at the mercy of Parliament. In other words, even the prerogative could be modified by Parliament.
- There has been debate over whether the prerogative should even be applied in areas where the Parliament has legislated. In practical terms, this means that it is highly dubious that the prerogative could be used to undo a Parliamentary act.
However, Blick and Gordon also note that the prerogative has been put to greater use in recent years including acts as controversial as the deployment of military assets in foreign territories.
That said, the section concludes that overall, there is a marked tendency against rather than in favour of using the prerogative, particularly for issues of extreme national importance. Likewise, there is currently a formal preference for Parliament to be the go-to body for treaty-making affairs [which should include treaty-unmaking].
As such, Blick and Gordon argue that if seen from a constitutional perspective,
statute is generally a preferable power source to the royal prerogative, and that the more significant the action involved, the more desirable statute becomes; and that in the case of major constitutional change, statute is essential.
The last part of the article refers to the fact that since 1985 the acts undertaken via prerogative can be challenged in courts. This could lead to later challenges that force UK institutions to rule over each other. As such, the authors conclude that it would not be wise to insist on using the prerogative, as it would likely lead to institutional challenges and/or could even weaken the very acts taken.
I cannot further stress the fact that this article was written well in advance of the recent ruling by UK courts on the need of Parliamentary approval for the triggering of Brexit. Evidently, Blick and Gordon accurately interpreted the unconstitutionality of the use of the prerogative.
It is worth noting that both authors were subsequently taken as part of the legal team of the Welsh Government in its intervention in the Article 50 challenge at the Supreme Court.
I also want to bring up the fact that most academics, or at least the ones in the field I work in, prefer to analyse events that have already taken place. Here, Blick and Gordon took the risk of advancing their opinion on what would become a major constitutional issue in Britain in the following year. This is an admirable commitment to their belief in interpreting the law according to their best evidence and judgment independently of the professional consequences that may arise from courts saying otherwise.