Note: The High Court has now ruled that the Government does not have power to issue Article 50 notification. The 3 November 2016 judgment is available here.
Britain’s Prime Minister Theresa May has said there will be “no attempts to sort of stay in the EU by the back door”. She’s right. Those anti-Brexit voices hoping that a “sovereign UK Parliament” has a constitutional right to halt May’s European Union exit plans are wrong. A debate and vote by MPs would have no more constitutional weight than, let us say, the “advisory” referendum of June 23 (arguably rather less). Nor does the Prime Minister have a duty to give MPs a vote before she issues her withdrawal notice to the European Council under Article 50 of the Lisbon Treaty.
But if and when May does that, she will be entering a complicated constitutional maze – rooted in a treacherous political quagmire – with no predictable way through. Britain could be in limbo with Parliament and Government unable to agree, judges unable or unwilling to give clear guidance, a crisis “Brexit election” – which will resolve nothing and will not get May out of the hole left by her predecessor.
Wiser heads than this blogger have written at length on these issues, particularly regarding whether Parliament has a final say in taking Britain out of the EU. Unfortunately they have come to diametrically opposed views – with others taking up positions of various polarised degrees around the unsquared circle that is Britain’s Brexit crisis. What follows is simply an attempt to give some guidance through the maze.
MPs have no vote on Article 50
Those who think MPs have a crucial voting role on Brexit at this point, and that exit from the EU cannot occur merely on the back of the referendum result, often assert “Parliamentary sovereignty” – the notion that Parliament, not the people, are sovereign. But in reality Parliament (or “the Queen in Parliament” in the strict constitutional terminology) is only sovereign when it has successfully passed legislation through the Commons and the Lords and had it signed into law by the Monarch. The piece of legislation is sovereign in that the courts must and will recognise it. Parliament is not sovereign in the sense that it can tell the leader of Her Majesty’s Government (Mrs May) what to do or in the sense that a debate and a vote on some matter exercising the popular imagination actually matters (except insofar as it garners headlines).
Theresa May, in sending out the Article 50 notification will be using her prerogative powers, derived from the Monarch, to make and break treaties. She will be doing it on the basis of government policy – which is to recognise the EU referendum result as binding even though the legislation did not say it was. (Nor did it say it was advisory.) She might justify government policy by suggesting that in passing the European Referendum Act 2015, Parliament intended the result of its own legislation; she could argue she is doing it because it is the clear will of the people; or that it is for the good of the country; privately she may say it is for the good of the Conservative party. None of these are constitutional requirements, however “constitutional” the act of sending Article 50 notice might seem to be. But no “constitutional” argument is required. It is simply government policy backed by prerogative power.
There are exceptions to the rule that a debate in Parliament has no particular constitutional force – sort of. Closest to the Brexit position might be the debate given to Parliament by Tony Blair before the Iraq war. Strictly speaking war-making is another prerogative power which Parliament has no direct say in. The vote was offered for political reasons – basically that in a modern democracy it would seem wrong for such an important policy to bypass Parliament. (See: The Prime Minister’s prerogative: Iraq, Syria – and war with Spain.)
Blair’s action in some sense set a non-binding precedent which resulted in David Cameron to losing a vote on war with Syria. But Cameron did not see fit to bring other warlike matters before Parliament with smallish numbers of boots on the ground or wings in the air – nor targeted drone strikes on individuals. There was no constitutional requirement that he should.
Another example of a debate that was meant to have constitutional or legal force came, paradoxically, at the behest of Theresa May when she was Home Secretary. She wanted some parliamentary backing for the immigration rules for deportees, which are varied constantly, but by the Government, often merely through new guidance, not through primary legislation. Since courts were picking holes in the rules because of human rights issues, (see, for example, the Alvi case) she called a debate specifically in the elected House of Commons to give them some sort of spurious democratic backing.
This was condemned by a House of Lords committee, which said: “While the Home Secretary’s intention is clear, there are some questions about whether the procedural approach [the Commons debate] proposed can deliver it.” (See: Lords Committee Criticism) A mere debate in parliament does not have the force of law.
This time around, of course, May will not offer such a debate, however non-binding, for the blunt political reason that it would probably put her at odds with Parliament, assuming MPs come out against Brexit and call for no issuing of the Article 50 notice. The two examples above were in effect political ploys, not constitutional requirements. Without parliamentary backing, the ploy would not work this time.
What can MPs do?
Assuming Parliament is pro-EU and given a majority in the Commons against issuing the Article 50 notice, it could call its own debate, it could pass a vote of no confidence in the Government or it could pass a piece of its own legislation. All methods are fraught with political dangers. MPs can call debates by various procedures, outlined here. Adjournment debates, which are in the gift of the Speaker or through a ballot, are really little more than a means of getting ministers to answer questions.*
Backbench Debates may be available on application to the Commons Business Committee. The committee will also take account of e-petitions. So a debate on a second EU referendum was scheduled for 5 September following an e-petition from four million people. But it is merely a debate with an obligatory reply at the end from the relevant minister. There is no vote and it cannot change policy.
The most practical means of stopping Brexit is a motion passed in the Commons on the words in the Fixed Term Parliaments Act 2011 Section 2(2): “That this House has no confidence in Her Majesty’s Government.” There would have to be some planning for this, not to mention conspiracy, since if no new (presumably pro-EU) government can be formed within 14 days, it’s General Election time. And what an election it would be!
With the Tories split on the EU, Labour in the middle of tearing itself apart on things in general, the SNP strongly pro-EU and likely to sweep the board in Scotland, any and every Ukipper who can be scraped together fighting every seat, the “Brexit Election” would be a more bloody and more chaotic rerun of the referendum – with absolutely no guarantee that the new House of Commons that emerges will be able to provide coherent direction or strong government – or any more clarity on the Brexit issue than we have now. MPs would be unwise to press that particular nuclear button.
Is primary legislation an option? An Act of Parliament could clarify whether the referendum was advisory or not since parliamentary sovereignty means Parliament can change its old legislation. But anti-Brexiters would want to go further, presumably, and put a stop to the whole Brexit nonsense. Again an Act could do that if MPs (and, of course, Peers) are willing to accept the political risks. Practically, though, Bills are generally introduced by the Government. The powers of MPs (and Peers) to introduce Bills are limited. Private Members’ Bills are explained here. Again they involve winning a ballot. The ballot for this year’s session was held in May. So the option is not available.
Can the courts help the anti-Brexiters?
A number of court cases have been launched about the Brexit issue (here’s a rundown) and the courts have agreed to consider a judicial review. But no one should put much hope in that. Judges cannot require debates in Parliament and they certainly cannot demand Governments produce particular legislation (or any legislation). This is because of the very parliamentary sovereignty that anti-Brexiters pray in aid. It is fundamental to the British constitution.
Courts can examine the actions of the executive (ie the Government) vis-à-vis third parties but cannot interfere with primary legislation. They come close when declaring legislation incompatible with the European Convention of Human Rights, but the Human Rights Act 1998 Section 4 stops short of giving power to judges to strike down primary legislation. Such a declaration “is not binding on the parties to the proceedings in which it is made” (S.4(6)). The Government would be expected to bring legislation to Parliament to rectify the incompatibility and Parliament would be expected to pass it – but neither have to.
It is questionable whether courts can examine the prerogative of treaty-making at all. It may not be justiciable. So in The Council of Civil Service Unions v Minister for the Civil Service  UKHL 6 Lord Roskill said this:
“Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process. The courts are not the place wherein to determine whether a treaty should be concluded or the armed forces disposed in a particular manner or Parliament dissolved on one date rather than another.”
Similarly in R v Home Office ex parte Everett  EWCA Civ 7 (about non-issuance of a passport) Lord Justice Taylor said:
“The majority of their Lordships indicated that whether judicial review of the exercise of prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making law, dissolving parliament, mobilising the Armed Forces. Clearly those matters, and no doubt a number of others, are not justiciable.”
On the other hand the prerogative should not be used “so as to frustrate the will of Parliament” (see: R v Home Secretary ex parte Fire Brigades Union) – meaning (again) Parliament’s will exhibited in extant legislation, not an assumption about how MPs might vote on the matter today or tomorrow. So which legislation counts? The Referendum Act of 2015 (on the grounds that Parliament’s will was whatever the outcome of the referendum turned out to be); or European Communities Act 1972? The following arguments apply to both the justiciability issue and the substantive issue if judges are willing to pursue it.
The legal arguments
The anti-Brexiters hope to make a case for saying that the Royal Prerogative does not extend to issuing the Article 50 notice. Use of the prerogative was at issue in the immigration cases mentioned above (Alvi et al) and the UK Supreme Court found against Theresa May. (She had simply ignored Parliament and got the UK Border Agency to post the new rules on its website.)
In that case Lord Hope said a prerogative power may be suspended, or abrogated, by an Act of Parliament. The anti-Brexiters are arguing that the passing of the European Communities Act 1972 did thus abrogate any prerogative power to exit the EU. The argument runs thus: Britain entered the EU thanks to a treaty under the prerogative – but then Parliament ratified the treaty, so only Parliament can get Britain out of the treaty. That must be done by repeal of the Act through a new Act of Parliament or a new Act or amendment in effect giving permission for the Article 50 notice (argued by Scott Styles on Aberdeen University Law.) See this parliamentary note:
“Although the Executive can commit the United Kingdom to obligations under international law, if a change to domestic law is required, it will only take effect if Parliament passes the necessary legislation.” (Public Administration Sub-Committee)
But the counter-argument is that the European Communities Act is not an act of accession to the EU as such but a confirmation of the legal and bureaucratic consequences that follow from that. So: “Just as it is inaccurate, or incomplete, to say that the UK joined the EU by means of enacting the ECA 1972, that Act’s repeal is not a necessary component of Brexit” (argued by Mark Elliott, Public Law for Everyone, here). What words of the Act, if repealed, would amount to withdrawal from the EU? There are none.
We are in a paradoxical confundulum: While Britain remains in the EU (ie before the Article 50 notice is issued and until withdrawal actually occurs) the ECA 1972 is required to stay in place to regulate legal relations between Britain and the EU as well as those individuals or companies etc subject to EU law within the UK. Repeal would put Britain in a bizarre limbo, in effect repudiating the EU before having agreed terms for leaving it.
Hence, issuing an Article 50 notice would not change statute law – it would not by any implication repeal the ECA 1972. The will of Parliament (ie the Parliament that passed the 1972 Act) will not have been “frustrated” at all since the ECA would remain fully in force and the nuts and bolts of it continue to have their legal effects. So it is open for May to, perfectly constitutionally, issue the notice.
The ECA would stay in place for the time being – and even after Britain leaves the EU (possibly by being ejected after failure of the two years of negotiations). It is only with the prospect of exit that Parliament would have to look at repealing or amending all or bits of the ECA – depending on what deal Britain got and, hence, how far the writ of EU law will continue to run in a Brexited Britain. So if the UK remains in the European Economic Area, presumably quite a lot will stay in place, modified to fit the new purpose.
So Parliament would have a role in this – but possibly not wholly via primary legislation going through all the long stages of a parliamentary bill. Instead the prospect has been raised (by Sir Paul Jenkins QC, a former head of legal services for the Government) that Parliament should pass a statute giving the Government powers to issue secondary legislation that would change EU laws in Britain as and when necessary to conform to the new status.
So negotiating the Brexit maze should all go pretty smoothly so long as Mrs May can convince Parliament that, in its own and the country’s best interests, it should back off and leave her to sort things out, calmly and efficiently. But as we enter the maze, best bring your wellies, satnav and some supplies for a pretty long haul.
Thanks to Bailii.org for cases
This post looks at the proposal for exactly how individual EU laws will be repealed after Brexit – by individual ministers, not Parliament – and finds it “constitutionally dubious, impractical – and wholly oppressive”: Bonfire of EU rights
See also: Obiter J has gathered the skeleton argument for the court challenge from one of the parties plus the Government’s grounds of resistance here (plus other Brexit info)
• Here is the Cranston ruling that brought the government arguments into the public domain: (pdf).
• Prof Mark Elliott critiques the government’s arguments here.
Note: Former Labour Lord Chancellor Charles Falconer, no Brexiter, has acknowledged that Parliament need be offered no legislative say in issuing the Article 50 notice. BBC Radio 4 Unreliable Evidence 14 Sept 2016.
The Thoburn point
A new and interesting piece on UK Constitutional Law Association by Gavin Creelman rejects the sort of analysis set out above by suggesting the European Communities Act is a “constitutional act” that cannot be impliedly repealed (as a prerogative Art 50 notice would in effect purport to do) – or which contains “fundamental rights” that cannot be removed except by a further parliamentary act. This blogger considers (as above) that an Article 50 notice would not impliedly repeal the ECA 1972. Whether it would “contingently repeal” it is another and knottier question ie by in effect requiring Parliament to repeal or modify it at a later stage when the deal has been done. The Government (and circumstances) would thus have fettered Parliament’s independence via the prerogative. Popping on the thinking cap now.
An answer to Creelman may be this. He cites obiter comments (by Lord Justice Laws) in Thoburn v Sunderland City Council etc on “constitutional statutes” that (arguably) cannot be impliedly repealed, but only by specific words in a new Act of Parliament. Such statutes contain fundamental constitutional rights regarding the relationship of the citizen viz à viz the executive. He argues that the European Communities Act is just such an act. Here, though, the implied repeal would be by us of the prerogative, not another (unspecifically worded) Act of Parliament. So (the Creelman view is) the Article 50 notice prospectively (two years down the line) and contingently (depending on the outcome of the negotiations with the EU) repeals the ECA.
But, in fact, the ECA contains no such fundamental rights. It is the documentation of the European Union that contains those rights eg to free movement of workers or no tariff barriers (if that can be defined as a fundamental right). And so the access to those rights comes, not via the ECA, but thanks to the treaty of accession in 1972. The EPA acknowledges that by, in effect, ousting its own parliamentary sovereignty in favour of EU lawmakers and the British Executive. So it says at Section 2(1):
“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly.”
It is constitutionally likely that EU rights would have been recognised in British courts even without the ECA, albeit in an indirect way, since judges would have accepted the treaty as a source of law.
There is a paradox here. The Holy Grail of the “entrenched” or “constitutional” law – that cannot easily be repealed by a sovereign Parliament – is often to be found in international treaty, not passed directly by Parliament at all. It is at arm’s length from parliamentary interference, though theoretically Parliament could over-rule it if the Government brings new legislation to do so. But why would a government do that? Start reading from the top again …
The first day transcript of the Miller/Santos court case is here (MoJ pdf).
• Adam Tucker for UK Constitutional Law Association goes for exit by Government but under parliamentary scrutiny.
• Nick Barker et al, in a post on the same site, believe Parliament must trigger it.
• Head of Legal demurs here, saying: “the government may choose to ask Parliament to vote in favour of article 50 notification – but there is no legal or constitutional requirement on it to do so”.
• This Constitution Unit piece runs through the options.
• Jack of Kent looks at the prospects for the litigation here, including the possibility that judges will not wish to decide a case that is essentially political and has little in the way of remedies that a court could offer.
• Prof Piet Eeckhout suggests the Government has a poor case – or at least, inconsistent arguments, at Eutopia Law.
The House of Lords EU Select Committee has announced it is to examine the issue of Parliament’s role in scrutinising Brexit on the basis of this question:
“Although treaties, once agreed, are subject to ratification by Parliament, the two Houses normally play little or no role in scrutinising treaty negotiations. Should Parliament play an enhanced role in scrutinising the terms of Brexit negotiations? What would be the rationale for such an enhanced role?
Here is an earlier report: Scrutinising Brexit
The European Communities Act says this at S.2(1):
“1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this subsection applies.
Article 50 – the relevant paragraphs
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
*Note: Parliamentarians must, of course, have a vote on the annual Budget and related money-raising by the Government – which, historically, is pretty much the raison d’etre of Parliament in the first place. Money should not be raised from the people without the people’s representatives (and/or the Peers, who in the old days represented only themselves) saying yea or nay. After the Budget is presented, Parliamentarians vote on a Finance Bill which goes through a similar legislative process to any other parliamentary bill (though the Lords are barred from voting it down). See this report on procedure regarding parliamentary debate on government expenditure.
Additionally under the Bill of Rights 1688 “raising and keeping of a Standing Army during peacetime is against the law, unless it is with the consent of Parliament”. This is now achieved through an Armed Forces Act, passed every five years. (Thanks to @RichGreenhill who notes here that in 2011 Parliament forgot to include the Isle of Man within its defences. Whoops.)