Another reblog. This is important.
Nick Barber, Tom Hickman and Jeff King: Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role
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.
The reason why this is so important is not only because Article 50,
once triggered, will inevitably fundamentally change our constitutional
arrangements, but also because the
timing of the issue of any
Article 50 declaration has major implications for our bargaining
position with other European States, as we will explain.
(i) Article 50
The relevant provisions of Article 50 read as follows:
- 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.
The first point to note about Article 50 is that it is a
once-and-for-all decision; there is no turning back once Article 50 has
been invoked. If no acceptable
withdrawal agreement has been
reached after two years, the exiting Member State is left without any
deal with the EU. It is of course possible to extend the time period.
But this is in the gift of the EU Council and requires its unanimous
agreement.
It may be argued that implicit within paragraphs 2 and 3 is a right
for the member state to revoke the notice to withdraw. Yet this
argument depends on reading such a right into a text from which it is
conspicuously absent. That text clearly provides that only the terms of
withdrawal itself are negotiable and states that if agreement is not
reached then the Treaties cease to apply to the State concerned. The
point is however probably moot since the UK must trigger Article 50
expecting and intending to exit the EU. And it could not safely assume
that it is able to withdraw notification on the basis of the terms of
Article 50.
Article 50 therefore tips the balance of negotiating power massively
in favour of the remaining EU States. The UK has far more to lose from
withdrawing from the EU with no deal in place than has the EU. Whilst
the EU does want access to the UK market, it knows that the UK will be
in a very weak bargaining position during withdrawal negotiations, with
extremely dire consequences for the UK economy if it were to leave
without any deal. This is likely to limit the UK’s negotiating position
in relation to key aspects of the exit deal.
The question of how an Article 50 notification can be given is
consequently of paramount importance. Unfortunately, this is less clear
than it might first appear. The first paragraph of Article 50
specifies that the decision to leave the Union, which must be made
before the Article 50 declaration, must be made in ‘accordance with its
own constitutional requirements’ – but what are these requirements in
the British system?
(ii) The Domestic Constitutional Requirements For an Article 50 Declaration
In his resignation speech, David Cameron said:
“A negotiation with the European Union will need
to begin under a new Prime Minister, and I think it is right that this
new Prime Minister takes the decision about when to trigger Article 50
and start the formal and legal process of leaving the EU.”
The Prime Minster did not specify the legal authority under which he
believed he or his successors might invoke Article 50, but the typical
answer will be obvious to constitutional lawyers: it is the royal
prerogative, a collection of executive powers held by the Crown since
medieval times, that exist unsupported by statute. The Prerogative is
widely used in foreign affairs, which Parliament has largely left in the
hands of the Government. The treaty-making prerogative of the Crown is
one such area.
If the Prime Minister is correct, and the Prerogative is the basis
for the declaration, he enjoys complete discretion about when to issue
the declaration: the trigger could be pulled in October, next year, or
in ten years’ time.
The relationship between statute and the prerogative has long been
contentious, and up until quite recently – the 1980s – it was arguable
that the exercise of prerogative powers (though not their existence) was
beyond the capacity of the court to review; the King could do no
wrong. Whilst the courts might not have been able to review its
exercise, they certainly could and did rule on whether the prerogative
contended for by the Crown existed in the first place. One of the
earliest limits on the prerogative was that it could not be used to
undermine statutes; where the two are in tension, statute beats
prerogative. In one of the seminal cases of the common law,
The Case of Proclamations, (1610) 12 Co. Rep. 74 Sir Edward Coke declared:
“..the King by his proclamation… cannot change any part of the common law, or statute law, or the customs of the realm…”
A more recent statement of this principle can be found in the
Fire Brigades Union Case [1995] 2 AC 513 in 1995, where Lord Browne-Wilkinson stated that:
“…it would be most surprising if, at the present
day, prerogative powers could be validly exercised by the executive so
as to frustrate the will of Parliament as expressed in a statute and, to
an extent, to pre-empt the decision of Parliament whether or not to
continue with the statutory scheme…”
This case law forms a core part of the separation of powers in the
British Constitution: the Government cannot take away rights given by
Parliament and it cannot undermine a statute. For the courts to hold
otherwise would place the rights of British citizens at the mercy of the
Government and would be contrary to Parliamentary supremacy.
Admittedly, and with most aspects of our constitutional law, the precise ambit of the principle invoked in the
Fire Brigades Union
case, and in associated case law, is open to different interpretations.
A narrow one would limit its application to situations where the
statute proscribes in detail how Government must act, but where the
Government circumvents that guidance by recourse to the prerogative. The
wider principle is that it is not open to Government to turn a statute
into what is in substance a dead letter by exercise of the prerogative
powers; and that it is not open to the Government to act in a way which
cuts across the object and purpose of an existing statute. In our view
the wider principle correctly states the law and is particularly apt
here, as we are concerned with a constitutional statute upon which an
extensive system of rights is founded.
This argument does not entail that the Government can never withdraw
from an incorporated treaty. Everything depends on the terms, object and
purpose of the statute in question. The Human Rights Act 1998, for
instance, incorporates the European Convention on Human Rights in a very
different way.
(iii) The Consequences for Article 50
As we have seen, the purpose of a Member State embarking on the
Article 50 process is to withdraw from the EU. The EU Treaties “cease to
apply“ to the UK immediately upon either, (i) the entry into force of
the concluded agreement, or (ii) the expiry of the two year guillotine
(subject to unanimous agreement to extend). Can such a decision be made
by the Government
alone, even following a referendum?
First, the European Communities Act 1972 is, as its long title
states, an Act “to make provision for the enlargement of the European
Communities to include the United Kingdom”. The long title of the Act is
a permissible aid to interpreting the terms, and object and purpose of
the Act.
Section 2 then provides that all such rights, powers, liabilities,
obligations and restrictions from time to time created or arising by or
under the EU Treaties are part of UK law.
The obvious intention of the Act is to provide for the UK’s
membership of the EU and for the EU Treaties to have effect in domestic
law. The purpose of triggering Article 50 would be cut across the Act
and render it nugatory. Once a withdrawal agreement took effect, or if
not deal was reached, the 1972 Act would be left as a dead letter. It
would instruct judges to apply the Treaties which themselves declare
they had “ceased to apply” to the UK. Indeed, there would not be any
need for Parliament to repeal the 1972 Act once the Article 50 process
was completed because there would be no remaining rights and obligations
for the UK under the terms of the EU Treaties.
It is not an answer to say that section 2 refers to rights and
liabilities “from time to time arising” under the Treaties because this
is obviously intended to cater for the changing rights and obligations
of the UK under EU law, such as to comply with EU legislation,
within
the EU. It does not allow the Government to do an act which would
resulting the withdrawal from the EU Treaties, which cuts across the
whole object and purpose of the 1972 Act, which is to make the UK part
of the EU.
Some might argue that there would be no such conflict since the 1972
Act does not regulate the process of withdrawal, and because the
executive act of withdrawal leaves the statute formally untouched.
However this would be a very formalistic analysis in circumstances where
the undoubted intention of the UK in triggering the Article 50 process
would be to effect the opposite of that which the 1972 Act is designed
to achieve.
By issuing an Article 50 declaration, the Prime Minister would start
the process that would inevitably end in the loss of EU rights (even if a
way was found to negotiate a set of substitute, non-Treaty rights).
Secondly, if this were not sufficient, the Article 50 declaration
will strip British citizens of their rights in relation to the European
Parliament. The European Parliamentary Elections Act 2002 confers a
right to vote and to stand in European elections. The Government
cannot unilaterally do an act which will render the 2002 Act nugatory
and strip away the rights that it confers.
More examples could be given, but the general point is plain. Our
membership of the European Union has conferred a host of legal rights on
British citizens, some through incorporating statutes, some granted
directly in domestic law. Applying the common law principle found in
The Case of Proclamations and
Fire Brigades Union,
the Government cannot remove or nullify these rights without
parliamentary approval. Its prerogative power cannot be used to
overturn statutory rights. Statute beats prerogative.
This has significance not only in terms of our domestic law, but also
for EU law. Article 50 specifies that a decision to leave the European
Union must be made in conformity to a Member State’s constitutional
requirements. If the Prime Minister sought to issue an Article 50
without parliamentary approval, it would not satisfy this test; it would
not be effective in European Law.
(iv) The Role of Parliament
It might be thought that this gives rise to something of a
constitutional chicken and egg dilemma: how can Parliament legislate to
take the UK out of the EU before the exit negotiations are complete?
There is in fact a straightforward answer to this apparent conundrum.
Before an Article 50 declaration can be issued, Parliament must enact a
statute empowering or requiring the Prime Minister to issue notice under
Article 50 of the Treaty of Lisbon, and empowering the Government to
make such changes to statutes as are necessary to bring about our exit
from the European Union.
Is this a mere formality? The political reality might be “yes”.
Parliament might consider that following the referendum it must pass a
statute in these terms. But the answer in constitutional terms is “no”.
As a matter of constitutional law, Parliament is not bound to follow the
results of the Brexit referendum when deliberating this legislation. A
number of options are constitutionally open to Parliament.
First, it could decide not to grant this power at all. As some of
the core claims made by the leave campaign unravel, Parliament might
decide that the case for Brexit has not been made – or was gained under a
false prospectus. As Edmund Burke taught us, ours is a representative,
not a direct, democracy. Those representatives whose consciences
required them to reject the referendum vote would have to justify
themselves to their electorates at the next General Election – an event
that is likely to arrive quite soon. We should make clear that we take
no position as to whether Parliament should adopt such a course, but it
is undoubtedly open to Parliament as a matter of constitutional law.
Parliament is, after all, sovereign.
Secondly, Parliament could conclude that it would be contrary to the
national interest to invoke Article 50 whilst it is in the dark about
what the key essentials of the new relationship with the EU are going to
be, and without knowing what terms the EU is going to offer. Parliament
might well conclude that to require the Government to issue the notice
immediately would be contrary to the national interest, even if
Parliament is committed to leaving the EU, because the legal structure
of Article 50 would place the UK at a seriously disadvantageous position
in negotiating acceptable terms. Surely, Parliament is unlikely to
require the Government to issue notice under Article 50 if it considers
that the Government might be forced to accept exit terms which do not
protect key aspects of our economy. Parliament may therefore require the
Government to engage in extensive informal negotiations or even to seek
to negotiate exit from the UK by formal Treaty amendments rather than
through the Article 50 process.
If the UK seeks to obtain some form of framework agreement on key
terms before invoking Article 50, once these terms are in place,
Parliament could then trigger the Article 50 procedure to effect exit,
perhaps with only details left to negotiate by the Government.
Immediately upon an agreement being finalised the UK would no longer be
part of the EU. This option would comply with the outcome of the
referendum.
Finally, of course, Parliament could decide to authorize notice under
Article 50 at once by empowering the Prime Minister to issue the
declaration.
There are very good reasons for involving Parliament. With its broad
range of representatives and peers, various pertinent committees with
extensive evidence gathering powers, it is an institution that has the
expertise and legitimacy to discuss the implications of various
withdrawal options and any framework conditions or further approvals
that Parliament may want to stipulate. The referendum was silent on the
terms of withdrawal. Such terms should be matters for cross-party
discussion in open Parliament rather than among the front bench of a
(divided) single party in closed Cabinet meetings.
Conclusion
Far from being a straightforward and streamlined process of exit, the
Article 50 process raises very complicated legal and political issues
and is pregnant with risk (additional to those inherent in existing
outside the EU). These complexities are compounded by the murky
ambiguities of our unwritten constitution.
The referendum result itself does not speak to the question of how
the UK should leave the EU. It is up to the Government and to Parliament
to ensure that the exit is managed consistently with the UK’s national
interest.
Our analysis leads to the possibility that the process of extraction
from the EU could be a very long one indeed, potentially even taking
many years to come about. Of course, the EU Member States have made
clear that they will only negotiate once the Article 50 exit provisions
have been triggered and are pressing the UK to pull the trigger “as soon
as possible”. It is also clear that uncertainty is itself undesirable.
But uncertainty needs to be weighed against other imperatives, such as
the need to comply with the UK’s constitutional requirements and the
need to ensure that Brexit is effected consistently with the national
interest. A quick pull of the Article 50 trigger is unlikely to be
feasible under the UK’s constitutional arrangements and may well not be
desirable for any UK Government or Parliament, even one committed to
eventual withdrawal from the EU.
Brexit is the most important decision that has faced the United
Kingdom in a generation and it has massive constitutional and economic
ramifications. In our constitution, Parliament gets to make this
decision, not the Prime Minister.
Nick Barber, Fellow, Trinity College Oxford.
Tom Hickman, Reader, UCL and barrister at Blackstone Chambers
Jeff King, Senior Lecturer in Law, UCL
(Suggested citation: N. Barber, T. Hickman and J. King, ‘Pulling the
Article 50 ‘Trigger’: Parliament’s Indispensable Role’, U.K. Const. L.
Blog (27th Jun 2016) (available at
https://ukconstitutionallaw.org/))
