As we’ve mentioned, reporting in the UK on Brexit has become so partisan that it is hard to sort out some basic questions.
So far, there has been no mention by Prime Minister Cameron of a need by Government to seek Parliamentary approval for invoking Article 50 which triggers the two-year European Union departure process, nor can I recall the intent to seek approval mentioned by either of the two leading contenders for his post, Boris Johnson or Theresa May.
Constitutional experts diverge on the question. Reader vlade provided a link to this article today, Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role, from the UK Constitutional Law Association’s website. From the beginning of the article:
In this post we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.
There are a number of overlapping reasons for this. They range from the general to the specific. At the most general, our democracy is a parliamentary democracy, and it is Parliament, not the Government, that has the final say about the implications of the referendum, the timing of an Article 50 our membership of the Union, and the rights of British citizens that flow from that membership. More specifically, the terms and the object and purpose of the European Communities Act 1972 also support the correctness of the legal position set out above.
However, another Constitutional law expert disagrees as to the nature of the matter and hence what considerations apply. From The road to Brexit: 16 things you need to know about the process of leaving the EU by The Constitution Unit, which describes itself as “The Constitution Unit in the Department of Political Science at University College London is the UK’s leading research body on constitutional change:”
9. Parliament has no formal say over whether or when Article 50 is invoked, as this lies within the royal prerogative powers that are exercised by government. Government’s powers in matters of foreign policy are very extensive, and parliament has veto rights only in respect of treaties. If parliament were to pass a motion calling on the Prime Minister not to invoke Article 50, we might nevertheless expect him (or perhaps, by then, her) to respect that. But the Prime Minister could claim the authority of the popular vote to justify ignoring such pressure.
10. Parliament will, however, be able to vote on the withdrawal deal, as that will be a treaty. Indeed, as we examined in our briefing paper on Brexit’s effects on Westminster and Whitehall, parliament will expect to be updated regularly on the negotiations and to have its views heard, perhaps through votes on specific issues. The large majority of MPs currently favour staying in the EU. If they want a post-Brexit deal involving substantial ongoing integration with the EU – perhaps akin to Norway’s arrangements – they could potentially have the power to reject any deal that does not provide that. Whether they will do so will depend in part on the political situation and the state of public opinion at the time, both of which are highly unpredictable. It will depend also on the withdrawal timetable: if the two-year window is near to closing, rejecting the deal on the table could be very risky.
Perhaps as important, this issue was already addressed in Parliamentary debate before the referendum vote was approved. Consistent with the apparent silence by Cameron (and as far as we can tell, other Tories) about needing Parliamentary consent, the Government has already taken the position it did not Parliamentary consent to invoke Article 50 if Leave won the referendum. As Alessandra Asteriti wrote in comments on the UK Constitutional Law Association post:
In a Commons debate on 25 February 2016, following a question from Alex Salmond MP, which was phrased as follows
The Foreign Secretary invokes article 50. Before notification was given under article 50, given that the referendum is an advisory one in terms of the constitution, would there be a vote in Parliament? Would there also be a vote in the Scottish Parliament, given the impact on devolved competencies under the Sewel convention?
Mr Philip Hammond, Secretary of State for Foreign Affairs, stated as follows:
The Government’s position is that the referendum is an advisory one, but the Government will regard themselves as being bound by the decision of the referendum and will proceed with serving an article 50 notice. My understanding is that that is a matter for the Government of the United Kingdom, but if there are any consequential considerations, they will be dealt with in accordance with the proper constitutional arrangements that have been laid down.
In reply to another question in the course of the same debate, Mr Hammond also added,
The propositions on the ballot paper are clear, and I want to be equally clear today. Leave means leave, and a vote to leave will trigger a notice under article 50. To do otherwise in the event of a vote to leave would represent a complete disregard of the will of the people. No individual, no matter how charismatic or prominent, has the right or the power to redefine unilaterally the meaning of the question on the ballot paper.
Yves here. It would probably be strained, but one might argue that the failure of Commons to raise any serious questions or challenge to its position regarding the Government’s authority to proceed with an Article 50 amounted to consent. It was certainly tacit approval.
So it appears that the Conservatives do not seek to put the matter to Parliament. And you can see why. The days of debate would tear the country apart and also put the financial markets on a roller coaster. It would amount to relitigating the vote and would raise the specter of officials overriding the popular will.
However, as noted by the Constitution Unit, Parliament could pass a motion objecting to the Prime Minister invoking Article 50. If anything, the debate would be more poisonous, since it would clearly be the Remain camp seeking to overturn the referendum results.
While we are now so far out in uncharted waters that anything is possible, if the Remain camp wants to attempt a rearguard action like that, they are better served moving sooner rather than later. They could use yesterday’s developments (see our related post), to argue that the Tories, both Cameron and Johnson, lied to the public about what they could achieve and the EU has taken a firm position. The voters were given bad information and made a bad decision. They won’t get a pony, and they won’t even get the additional money for the NHS they were promised.
But as we have said, with “Brexit” in front page headlines every day, the march of time makes it harder to try to roll back the referendum results. The vote was presented as a cataclysmic new reality, even if no one is sure what the end result will be. British and EU citizens are coming to grips with it. The utter disarray of the Labor party, whose members voted roughly 2/3 for Remain, means they are preoccupied with their infighting rather than with seeing what if anything to do about the referendum result.
So I’d not rule out a Parliamentary challenge to the Government, but it looks unlikely, since it is much more likely to pour salt in open wounds than succeed.