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Brexit: Does Invoking Article 50 Require the Approval of Parliament?

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.

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14 comments

  1. Ed

    If you want to get real technical, everything Parliament does, except for funding the government, is advisory. It petitions the Queen to act.

  2. m-ga

    This story is moving really quickly. Johnson has just ruled himself out, and Gove is now the main leave candidate for the Tory leadership.

    1. notabanker

      Given Boris’ track record negotiating with TFL Unions, I’d say this is good news for the Brits.

      1. PlutoniumKun

        Except Gove is like Boris but without the sense of humour. A thoroughly nasty ideologue who demonstrated a lack of even the most basic level of competence in his previous jobs.

  3. vlade

    you can almost feel sorry for BJ. One thing he strived so long for, hoped for – and now it turns into a poisoned chalice so he doesn’t dare to take it.. No, I don’t (feel sorry for him).

    Mind you, from the more-neo-liberalism perspective, Gove is even worse than BJ, because while BJ was interested in power over principle, Gove is “principled”

  4. PlutoniumKun

    Essentially, in answer to the main question, nobody seems to know. This is completely uncharted legal and constitutional waters (not helped by the fact that nobody has every actually seen the fabled British Constitution).

    It seems that every step of the way is potentially liable to legal challenge, either in England, within the wider UK (Scotland has its own legal system), and within Europe. It has been mooted in at least one article in the Guardian today that the actual Referendum could be subject to judicial review. An attempt by the government to forward an A.50 without recourse to Parliament may well be subject to challenge too. And a law passed by Parliament to permit an A.50 by the government could itself be challenged by Scotland and possibly Northern Ireland as being in violation of their rights. And within Europe its not all that clear when they will consider it to have been formally started – i.e. from the Referendum date, to when they receive written notification, to when all possible legal challenges have been overcome.

    My feeling is that there will be enormous pressure on whoever follows Cameron to play for time (unless its Gove, who is an ideologue). We’ll be told ‘this takes time, we must satisfy all legal obstacles’. And in the meanwhile, Europe itself will be split as to whether it should force the issue or not.

    My feeling is that the government will feel it has no choice but to put it to Parliament – this will also be a way of ‘spreading blame’ in the event of negotiations going horribly wrong. It may well not be a simple Act – they may try to incorporate additional elements, such as an application for the EEA, etc. And its further complicated by the hatred of the Tory party for the European Court of Human Rights, which is entirely separate from the EU, but which they may also try to withdraw from simultaneously.

    All in all, its a complete mess, and I suspect that there will need to be an election to sort it out. But it will certainly have to be ruled on by the highest courts in the UK, and the ECJ might also get pulled in.

    1. DJG

      PlutoniumKun: Thanks for the observations and analysis. A little problem about that lack of a written constitution. It appears that, somehow, the country was supposed to continue and prosper with the elites making it up as they went along. The irony here is that the EU serves as the UK’s written constitution. Now, the government of the UK is going to end up playing by EU rules, with very little to rely on other than some common-law precedents, which the EU may not be impressed with.

      At least there is will always be a Ministry of Silly Walks. It is tradition.

    2. Yves Smith Post author

      I have seen nothing in the media that supports your contention that Parliament will be asked for consent. Please provide a link with a quote from a senior party member or senior current government official consistent your claim. You would have expected Cameron to mention this, particularly in response to the repeated, loud demands by numerous EU officials and the IMF that the UK get on and invoke Article 50. It would be the logical, indeed a prime item to stress if this were part of the Government’s drill. I have not seen a single major media outlet mention this, so your view is not supported by messaging or press reports.

      As I indicated, Parliament might challenge the Government, but that is not at all the same as the Government seeking approval.

      1. fosforos

        That Mr. Holland MP said “the Government will regard themselves as being bound by the decision of the referendum and will proceed with serving an article 50 notice.” is now quite irrelevant (in french, “caduc”) since the Government has determined NOT to proceed with serving an article 50 notice and, to boot, has resigned effective in two months. It therefore has absolutely no bearing on whether or not the NEXT Government has or has not the legal right to bypass parliament and issue its own article 50 notice.

      2. PlutoniumKun

        Yves, I don’t think I implied that Cameron or anyone else within the cabinet has suggested they will ask for consent. My understanding is that they probably will do so simply because the failure to do so will leave them open to judicial review. It seems to be an open question as to whether invoking Article 50 is a ‘treaty’ as such – if it is interpreted as such, only an Act of Parliament can ratify it. I find it hard to believe they would take the risk of a judicial challenge if there was any serious legal question about it.

  5. That Which Sees

    This is almost certainly a moot point.

    The UK will complete negotiations and then turn in the “Article 50” notices a part of finalizing the replacement deals. Anything that involves filing “Article 50” and starting the 24 month clock without having a deal in hand can only be described as national suicide.

    Various hyperbolic EU parties have said they will not begin negotiations until the UK files “Article 50” notice. The UK will develop the the necessary deals with rational EU parties, and outlast those who refuse to come to the table for direct negotiations.

  6. thoughtful person

    Speculating here, but it is strange the timing of the revolt of the likely blarites vs Corbin, so as to limit his authority, just after the vote, when the rank and file labor voters were 2/3 for remain. Perhaps the Tories wanted to out flank Ukip and other far right ilk, and the blairites thought to do the same vs Corbin. No idea if the vote was supposed to go for remain or leave, the result may have been a surprise to the leadership on both sides (I take what they say /said, with a grain of salt). Well, we’ll see.

    If the Uk is anything like the US in terms of party politics, there is less distance politically between the Tories and the blarites, than the left, and both would be happy to get rid of Corbin and his popular ideas, same as with Sanders in the US.

  7. fosforos

    “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.”

    Since the Government has NOT served any article 50 notice, (nor will it, given that it has resigned effective the end of August) Mr. Hammond’s statement has now lost any semblance of legal force. As the French say, it is “caduc.” Therefore no subsequent Government can claim the right to serve any article 50 notice without the explicit consent of Parliament!

    1. Yves Smith Post author

      In all honesty, your statement makes no sense.

      Hammond’s statement may have no legal force simply because notifying Parliament of Government’s intent has no legal force. But I am not sure of that given the lack of a challenge and that Parliament approved of the referendum knowing the Government’s position.

      There is no requirement as to timing on the UK side. Since a 2 year clock starts running as soon as Article 50 is invoked, it is perfectly reasonable for Government to prepare its negotiating position for these extremely complex, multi-level negotiations. There was nothing in the wording of the referendum that even remotely implied the the Government invoke Article 50 immediately.

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