Parliamentary reports on Brexit and Article 50

Two parliamentary reports, relating to the vote to leave the European Union on 23 June 2016, have been published this week. The first, published on Monday 12 September 2016, is from the Scottish Parliament’s European and External Relations Committee and is entitled The EU referendum result and its implications for Scotland: Initial Evidence". The second, published on Tuesday 13 September 2016, is from the House of Lords Select Committee on Constitutional and is entitled “The invoking of Article 50”. 

Both reports discuss the vexed question of the correct constitutional process for triggering Article 50, which will kick start the process of leaving the European Union.

The UK Government’s position is that the Prime Minister can trigger Article 50 using prerogative powers (i.e. residual powers of the Crown, exercised by Government Ministers). Many disagree, arguing that the UK Parliamentary must be involved either by passing legislation to authorise the Prime Minister to invoke Article 50, or at the very least by endorsing this Executive act by passing a resolution. Since the vote on 23 June 2016, there have been around 20 posts on the UK Constitutional Law Association Blog from constitutional lawyers and academics, each espousing differing views on the correct constitutional process for triggering Article 50. There is currently an action pending at the High Court for judicial review of the Prime Minister’s decision to trigger Article 50 without parliamentary scrutiny and approval. A hearing is scheduled to take place in mid-October.

The report of the European and External Relations Committee is preliminary in nature. As noted in the Convener’s foreword, the report is the “...first chapter in what we see as rolling scrutiny of the Brexit process in the Scottish context”. Very few conclusions are drawn at this stage and no formal recommendations are made. Instead, the report “summarise the evidence the Committee has heard to date and the key issues that are emerging” (para 7). The constitutional requirements for triggering Article 50 are discussed at paragraphs 14 to 39 of the report. The Committee heard from Sir David Edward, a former judge at the Court of Justice of the European Union, who appeared to endorse the view that the UK Parliament must authorise the invocation of Article 50 (see paras 23 and 24). Professor Sionaidh Douglas-Scott, who also gave evidence, did not seem so convinced concluding that the argument for Parliamentary authorisation are unlikely to “win the day” as ultimately withdrawal from the EU will be agreed to by the UK Parliament when it repeals the European Communities Act 1972 (paras 25 and 26). As Professor Mark Elliot has observed, withdrawing from the EU and repealing the 1972 Act are two different things:

“The UK became bound in international law by EU law as a result of an exercise by HM Government of its treaty-making prerogative. It was then necessary for pertinent EU law measures to be incorporated by Act of Parliament into domestic law. That was done via the ECA 1972. That Act, however, simply assumes binding EU obligations: it does not make them permanent or transfer the executive’s function in contracting those obligations to Parliament. 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, if Brexit is understood to mean the extrication of the UK from its EU Treaty obligations.” 

The report of the European and External Relations Committee simply highlights the different arguments and recognises this as an issue. The House of Lord Constitutional Committee’s report is less equivocal. Although the committee declines to express a view on the conflicting legal arguments in light of the pending court action (para 16), they clearly conclude at paragraph 24 that:

It would be constitutionally inappropriate, not to mention setting a disturbing precedent, for the Executive to act on an advisory referendum without explicit parliamentary approval - particularly one with such significant long-term consequences. The Government should not trigger Article 50 without consulting Parliament.”

The difference between “unlawful” and “constitutional inappropriate” may be lost on many; however there is a subtle difference. The UK constitution is primarily political in nature: often actions of public officials are governed by non-justiciable constitutional conventions rather than legally binding legislation and accountability is often political rather than legal (i.e. politicians are held to account through general elections; public protest; and debate, questioning and scrutiny in Parliament and in the media; rather than through litigation in the courts). The question of legality will be for the High Court to decide in October. However, this does not prevent Parliamentary committees, the media and the general public from holding the Government to account politically.

On the question of whether Parliament should be involved through the passing of legislation or the passing of a resolution, the House of Lord’s Committee concludes that “either mechanism would be a constitutionally appropriate means for the Government to secure parliamentary approval for the triggering of Article 50” (para 45).

There doesn’t appear to be any movement from the UK Government on their position that triggering Article 50 does not require Parliamentary approval. Whether the Government will cede to the political pressure, or whether they will be compelled by the courts to seek authorisation from Parliament before triggering Article 50, remains to be seen.