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May Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 3 M A Y 2 0 1 7 371 the 20th century, the great majority of what had previously been prerogative powers, at least in relation to domestic matters, had become vested in the three principal organs of the state, the legislature (the two Houses of Parliament), the executive (ministers and the government more generally) and the judiciary (the judges).5 As the majority explains, the principle of parliamentary sovereignty means that “the legislative power of the Crown is today exercisable only through Parliament”,6 and “a prerogative power however well-established may be curtailed or abrogated by statute”.7 Accordingly, “the Royal prerogative encompasses the residue of powers which remain vested in the Crown, and they are exercisable by ministers, provided that the exercise is consistent with Parliamentary legislation”.8 As the majority observes, the most significant area in which the prerogative power is exercised today is the conduct of foreign affairs (although some may consider the bestowing of honours more significant: see Black v. Canada (Prime Minister)9). With respect to the power to make or withdraw from treaties, “subject to any restrictions imposed by primary legislation, the general rule is that the power to make or unmake treaties is exercisable without legislative authority and that the exercise of that power is not reviewable by the courts”.10 As the majority explains, this rule can be reconciled with the principle of parliamentary sovereignty because of the rule that “a treaty is not part of English law unless and until it has been incorporated into the law by legislation”.11 In Miller, the majority formulates the tension between the prerogative power and parliamentary sovereignty this way: The main issue on this appeal concerns the ability of ministers to bring about changes in domestic law by exercising their powers at the international level, and it arises from two features of the United Kingdom’s constitutional arrangements. The first is that ministers generally enjoy a power freely to enter into and to terminate treaties without recourse to Parliament. … The second feature is that ministers are not normally entitled to exercise any power they might otherwise have if it results in a change in UK domestic law, unless statute … so provides.12 The majority concludes that the terms of the statute that gave effect to the UK’s membership in the EU, the European Communities Act 197213 (“ECA”), are inconsistent with the exercise by ministers of any power to withdraw from the EU without a prior act of Parliament. In so finding, the majority accepts that serving notice under Article 50 would inevitably effect a fundamental change to the UK’s constitutional arrangements by cutting off a source of law and removing some existing domestic rights of UK residents.14 The majority notes, however, that it would have been open to Parliament when enacting the ECA to authorize ministers to withdraw


May Advocate 2017
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