Which Clause Is More Important: Santa or Henry VIII? A Brexit Appeal Breakdown

After a week of waning public interest, intermittent media coverage and terrifying threats to incite violence against the petitioners, The Supreme Court managed to hear the arguments in support of and against the so-called Brexit Appeal. As you may recall from my first post, the issue at hand is  Royal Prerogative; specifically, whether PM Theresa May can use Royal Prerogative to trigger Article 50 (thus giving notice that the UK would like to leave the European Union) without Parliamentary legislation.

And what happened? Besides the fact that academic discussions of law based on a non-existent constitution is no more interesting to the public than watching University Challenge with the sound off, here are the bullet points:

  • Again, this decision does not affect the referendum itself; only the manner in which the notice of Article 50 is delivered to the EU.
  • The European Referendum Act 2015, which determined that a referendum would be held, failed to mention what would happen in the event of a ‘yes’ vote. Hmm..it’s almost as if they didn’t think it would happen! Of course, this sword has two edges. The Government claims that the absence of a provision blocking Royal Prerogative means that there was no intent to do so. On the flip side, because the Act contains nothing about the legal effect of the referendum, it is strictly advisory and requires Parliamentary legislation.
  • Helen Mountfield QC for the People’s Challenge (a crowdjustice campaign funded by nearly 5,000 concerned people) argued that EU laws that have been in place since 1972 are domestic laws, and as such, can only be changed by Parliament, not ministers.
  • And on a similar point, the Henry VIII Clause is a provision enabling the Government to repeal or amend it (in this case European Referendum Act 2015) after it has become an Act of Parliament. This enables primary legislation (i.e. Acts of Parliament or Statutes) to be amended or repealed by subordinate legislation (or Delegated/Secondary Legislation – instruments made by people acting under Parliament’s authority that set out how the Act will work) with or without parliamentary scrutiny


The judges aim to reach a decision sometime in January. Until then, stay safe and be careful when publicly debating the constitutional law.


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