The Government’s argument in the Miller case is that triggering Article 50 lies within the power of the Crown to make and unmake international treaties – a power the leading litigant, Gina Miller, has termed ‘this ancient, secretive Royal Prerogative’. The legitimacy of the use of the prerogative is questioned by critics, who view its proposed use to trigger Article 50 as an unconstitutional scheme to bypass Parliament. This paper argues that there are positive reasons of constitutional principle for an efficient, unified and democratic executive. We can only understand the extent of the executive power, and how it ought to be constrained, if we understand what it is for. Acting to initiate a withdrawal from the European Union is within the proper constitutional role of the executive. Using the royal prerogative in this way is entirely consistent with the sovereignty of Parliament and the rule of law.
Timothy Endicott is Fellow in Law at Balliol College, University of Oxford, and has been Professor of Legal Philosophy since 2006. Professor Endicott writes on Jurisprudence and Constitutional and Administrative Law, with special interests in law and language and interpretation. He served as the Dean of the Faculty of Law from October 2007 to September 2015.