‘Royal Prerogative: Exploring the conceptual architecture’

In the second paper, Robert Craig will address a particular conceptual puzzle raised by Miller: the existence or otherwise of the prerogative to withdraw from the EU. He will argue that, even where statute has put the prerogative into abeyance (following De Keyser’s), the prerogative is best understood, not as having been abolished, but as sitting below statute – with the possibility of revival. When not in abeyance, it cannot be used to frustrate the intention of Parliament. Thus, in Miller, the prerogative to withdraw had always existed as part of the broad treaty making prerogative – and still exists. The abeyance principle did not apply. However, it could not be used because that would frustrate, inter alia, the right to vote in the European Parliamentary Elections Act 2002. He will argue that to conceive of permanently ‘abolishing’ the prerogative misunderstands the legal architecture of the UK constitution as well as breaching the principle of Parliamentary Sovereignty.