Page 15

Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 13 the EEC was renamed the “European Community” and eventually, in 2009, the European Community was absorbed into the EU, ceasing to exist as a separate entity. While it was the government in power at the time that entered the Treaty of Accession (it is a “settled feature of UK constitutional law” that, generally, “the conduct of international relations and the making and unmaking of treaties … are regarded as matters for the Crown in the exercise of its prerogative powers”7), it was Parliament that enacted the legislation to bring the treaty into force. How, then, is that legislation revoked or altered in a manner consistent with the UK constitution? The UK has held two non-binding referenda on membership in the EEC/EU. The first was on June 5, 1975 when the electorate was asked, “Do you think the UK should stay in the European Community (Common Market)?” In response, 67.2 per cent voted in favour of staying (voter turnout was 64 per cent). The second referendum was on June 23, 2016. The question posed was: “Should the United Kingdom remain a member of the European Union or leave the European Union?” This time, 51.89 per cent voted to leave. Voter turnout was 72.21 per cent. Putting aside the sobering fact that the most searched question on the Internet among Britons after the referendum was “what is the European Union?”,6 the outcome of the referendum upset pollsters, surprised almost everyone on both sides of the debate and plunged the nation’s economy into uncertainty. The British exit from the EU had been labeled fairly early on with the portmanteau “Brexit”—a combination of the words “British” and “exit”. It was a made-up word that many (but obviously not enough) hoped would not linger for very long after the referendum was over. Post-referendum, the word “Brexit” remained and everyone was asking: “What does Brexit actually mean?” Those who do not like tautologies winced at the new Prime Minister Teresa May’s answer: “Brexit means Brexit,” which probably looks great on a bumper sticker but helps absolutely no one. The fact is, no one knows what “Brexit” means and the UK is busy trying to figure that out. One of the discrete issues that arose as a result of Brexit was a pure question of law: whether, as a matter of the constitutional law of the United Kingdom, the Crown—acting through the executive government of the day—is entitled to use its prerogative powers to give notice under Article 50 for the United Kingdom to cease to be a member of the European Union.7 When difficult questions need to be examined and answered, an independent and impartial judiciary is exactly the institution to which parties, represented by competent and able counsel, can turn to have the issues fully canvassed, considered and ultimately sorted out. And so the legal ques-


Jan Advocate 2017
To see the actual publication please follow the link above