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

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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