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Clarity on the constitutional debate around Article 50 and the role of Parliament?

Claire Berwick
September 16, 2016

Posted in UK and EU legal framework

 

The House of Lords Constitution Committee has published a report this week (the HLCC report) looking at the role the UK Government and Parliament should each play in the triggering of Article 50 of the Treaty on European Union, the legal mechanism by which the UK would leave the EU. The HLCC report also considers the medium to long term roles of both the UK Government and Parliament in deciding what Brexit should mean for the UK 

Since the referendum result in June, there has been a lot of uncertainty and debate as to what the UK needs to do for the purpose of “its own constitutional requirements”[1] to serve notice under Article 50. The debate is important as it will impact on the timetable to prepare for a UK exit from the EU (see previous posts).

The position of the UK government is that the UK government is able to serve notice under Article 50 unilaterally by virtue of its royal prerogative, without the need to consult with Parliament. Others however have challenged this view on the basis that (as summarised in the HLCC report): 

  • any changes to legislation passed by Parliament needs the consent of Parliament. The European Communities Act 1972 for example would need to be amended or repealed as part of the process of withdrawal;
  • Statutes (or Acts of Parliament) cannot be overridden by prerogative powers; and
  • the Executive (i.e. the UK government) is not able to abrogate fundamental rights of UK citizens (protected under the EU Charter of Fundamental Rights) without an Act of Parliament.

The HLCC report acknowledges that the uncodified nature of the UK’s constitution is in part to blame for the lack of clarity and debate on these tricky constitutional questions. However it comes out strongly in support of the view that Parliamentary must be involved, stating that it would be “constitutionally inappropriate” and set a “disturbing precedent” for the UK Government to act unilaterally and trigger Article 50 without parliamentary approval. It is proposed that the approval could be by means of a tabled resolution in both Houses of Parliament or by means of primary legislation. The pros and cons of both methods are considered (speed and ease of a resolution vs the legal comfort of primary legislation) but both are judged to be constitutionally acceptable.

The HLCC report also supports the view that Parliament has an important ongoing constitutional role to play in the UK’s withdrawal from the EU. In particular, it should be fully involved in scrutinizing, debating and approving any final deal on what Brexit will mean for the UK. 

Commenting on the report published on Parliament’s website, the message from the Chair of the committee, Lord Lang of Monkton is unequivocal:

“Parliament and the Government will need to work together to ensure the UK achieves the best possible outcome when it withdraws from the EU.”

The HLCC report is likely to be influential and the timing of the publication is interesting in light of the legal challenge currently going through the Courts, to the position of the UK government that Article 50 can be triggered without parliamentary approval.  

Appearing before the Commons Foreign Affairs Committee the day after the HLCC report was published, David Davis, Secretary of State for Exiting the European Union, repeated the Government position that the royal prerogative alone can be used to trigger Article 50.  It therefore seems likely it will be up to the Courts to ultimately determine the question.

A link to the full HLCC report can be found here.

[1] Article 50 (1), Treaty on European Union: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

 

 

The United Kingdom has voted to leave the European Union.

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