The argument that Article 50 of the Treaty on European Union (TEU) cannot be lawfully triggered without the consent of Parliament has generated plenty of excited discussion over the last week, both in specialist legal circles and in the wider world. The announcement by Mishcon de Reya that that legal action was pending to ‘ensure the UK Government will not trigger the procedure for withdrawal from the EU without an Act of Parliament’ has brought this debate to boiling point. Some commentators have talked excitedly about a ‘legal dream team… launching a last gasp legal bid to preserve Britain’s European Union membership’. In response, there has been a visceral backlash in pro-Leave ranks against what they see as an attempt by conniving lawyers to thwart the will of the people. The front page of the Daily Express on 4 July 2016 led with the banner headline ’Top Lawyers in Threat to Referendum Vote & Democracy’, going on to warn about ‘outrage and rioting on the streets’. Similarly, Professor Frank Furedi commenting on Twitter described the proposed legal action as nothing less than an ‘authoritarian attempt at a “legal” coup’, with Brendan O’Neill indulging in similar hysteria in the Spectator.
The response from the government has been more measured, but thus far less than encouraging for those advocating a parliamentary vote on Article 50. Giving evidencebefore the Commons Foreign Affairs Committee on 5 July 2016, Oliver Letwin MP indicated that he had been advised by government lawyers that Article 50 can be invoked under prerogative powers, and thus no parliamentary vote would be required to initiate that stage of Brexit. As a result, the legal debate about whether Parliament must approve the triggering of Article 50 is set to run and run – and looks likely to result in litigation.
However, this obsessive focus on the question of whether Parliament must approve a decision to trigger Article 50 risks obscuring the fact that good reasons exist – both prudential and principled – as to why government might want to seek the approval of Parliament before taking this step irrespective of whether it is required by law. Governments have previously sought parliamentary approval for the exercise of prerogative or statutory powers: examples include not only the authorisation to invade Iraq in 2003, but also the way in which the coalition government sought parliamentary approval in 2013 for exercising the UK’s right under the Lisbon Treaty to opt-out of a range of EU police and criminal justice measures. A similar approach may be warranted here – and the tunnel vision engendered by legal conflict should not blind government to this possibility.
The prudential case as to why the government should announce it will be seeking Parliamentary approval before Article 50 is triggered can be outlined in brief. It could reinforce the negotiating position of the UK Government in Brexit talks, by insulating it against any pressure brought to bear by EU institutions or other European states for it to accelerate the Article 50 process. Furthermore, involving Parliament would help to share the burden of responsibility – and by extension to spread the blame if the Article 50 process goes awry.
But there also exist compelling reasons of constitutional principle as to why Parliament should approve any invocation of Article 50. As the institution that is supposed to serve as the representative voice of the people, Parliament is given a central role in the UK constitutional order. It would be compatible with its sovereign status for it to have the final say as to whether and when the Article 50 trigger is pulled – and, by extension, it would enhance the democratic legitimacy of this decision.
Invoking Article 50 is not going to be a normal, run-of-the-mill exercise in international diplomacy. As Barber, Hickman and King have noted in an earlier and by now widely-cited post on this blog, the triggering of Article 50 will have momentous consequences for the UK. It will also set in motion a negotiation process in which the UK will be at a disadvantage because of the (difficult to reset) two-year countdown to exit. The question of when this process should be commenced has already become a matter of serious political debate. There is some support for a rapid triggering of Article 50 from different elements of the political spectrum: others fear that a precipitate rush to invoke Article 50 will accentuate the negative consequences of Brexit. The importance of this process, and in particular of the timing issue, suggests that Parliament should have the final say as to when and if it is triggered.
Furthermore, the UK government will presumably need to have a negotiation strategy in place before invoking Article 50. This will require choices to be made as to what type of relationship it wishes to establish going forward with the EU post-Brexit, and what public policy goals might have to be sacrificed or watered down to bring that relationship into being. These choices are likely to be controversial: for example, a decision by the government to prioritise retaining access to the European single market may attract criticism from elements of the Leave campaign who might see this emphasis as inevitably opening the door to compromise on the free movement issue. As a result, a good case can be made that Parliament should have the opportunity to debate the contents of any such strategy before Article 50 is triggered. If, on the other hand, Parliament only gets to debate and accept/reject the outcome of the strategy at the end of the negotiating period, then this risks creating a situation where Parliament is presented with a fait accompli and given a binary choice to accept or reject the deal on offer with the clock ticking.
Some pro-Leave commentators have suggested that the referendum result has settled the matter, and that no further democratic input in the form of a parliamentary vote is required before Article 50 is triggered. For example, Martin Howe QC, the Chair of Lawyers for Britain, a pro-Leave legal campaigning group, has argued that ‘the decision of the British people in a national referendum authorised by Act of Parliament not merely permits but mandates the giving of notice [under Article 50], without the need for any vote by Parliament’.
There are two problems with this argument. First of all, the advisory character of the referendum complicates the picture: it was called to guide Parliament, not to bind the hands of government. Secondly, it glosses over the primacy assigned to representative governance conducted through Parliament within the UK’s constitutional order. It is highly probable that Parliament, if asked to approve a triggering of Article 50, will feel itself bound to do so as a consequence of the decisive popular vote for Brexit. However, Parliament may wish to delay triggering Article 50, considering that the circumstances are not right. It might even take the decision that a material change of circumstances or some other development means it is no longer bound by the referendum result. This would be intensely controversial, and perhaps unjustifiable in the absence of a second referendum vote. But it is a choice that should be available to a sovereign Parliament, given the importance of the decision at issue.
Good arguments therefore exist as to why it would be both politically expedient and constitutionally principled for Parliament to have the final say as to whether and when Article 50 should be triggered. The focus on the legal arguments being thrown about at present risks muddying the waters in this regard. The Article 50 process represents a chance to start giving greater power to Parliament: the government should recognise this, instead of staying locked in its current defensive posture.
Colm O’Cinneide, Professor of Law, UCL