Whilst the country’s media focuses on the realpolitik unfolding in the Labour and Conservative parliamentary parties, a feverish legal debate deemed to be ‘the most challenging… in modern British legal history’ has been raging (Lord Pannick QC, The Times, June 30th 2016): The question is whether an Article 50 notification—the formal and legal process of leaving the EU—requires Parliamentary authority. An important question, in short, because it determines whether it is legal for the government—through the Prime Minister, whoever that may be—to issue an Article 50 notification on the day they take office, or if Parliament will have to legislate.
In attempt to provide some clarity, this post will summate the debate as it currently stands, allowing you to draw your own conclusions, but also containing some conclusions as to the way I think the law, in-fact, cuts.
Beginning with the law: Article 50 of the Treaty on European Union (colloquially the Lisbon Treaty) states that ‘any member state may decide to withdraw from the union in accordance with its own constitutional requirements’, upon the notification by a member state to the EU. What constitutes a notification—anticipating the potential question of whether the referendum itself constitutes a notification—has been consensually determined as a formal notice by the UK government, through the Prime Minister. The law is clear on this (This statement by the Commission evidences this).
What is not clear, however, is the basis on which the UK government may make such a decision, in accordance with its own constitutional requirements (the second part of Article 50.1, i.e. under domestic law). The problem then being: if the referendum was legally non-binding (advisory), does the Government—through the PM—have the legal authority to trigger Article 50?
There are two constitutional requirements at play: First, is the constitutional principle that legislation can only be altered by another Act of Parliament. And second (derived from the first), is the further principle that prerogative powers—residual powers of the sovereign to conduct foreign policy, amongst other things, as affected by the Prime Minister—cannot superseded Acts of Parliament, nor be enacted in such a way as to result in the statute becoming ‘dead letter law’ (This principle comes from a reading of R v Secretary of State for the Home Department ex parte Fire Brigades Union  2 AC 513; but the breadth of the principle it must be conceded depends on ones reading of the obiter).
These constitutional requirements are important, because the European Communities Act 1972 gives effect to EU law into domestic law—providing us with the rights that come with EU membership, such as recourse to the European Court of Justice—and thus the use of the prerogative power must have sufficient constitutional authority: If the triggering of Article 50 under prerogative powers results in the 1972 act becoming ‘dead letter law’, then such a notification by the Prime Minister cannot be considered lawful.
Nick Barber, Jeff King and Tom Hickman, in ‘Pulling the Article 50 ‘Trigger’: Parliament’s Indispensable Role’, were the first to take up this charge, arguing that it was Parliament’s decision to make: without Parliament’s legislative authority, the Prime Minister would unconstitutionally nullify the workings of the 1972 act. The authoring trio—a Fellow at Oxford, a Reader at UCL and Barrister, and a Senior Lecturer at UCL—have also had their post endorsed by Sir Stephen Sedley, an extremely highly regarded Court of Appeals Judge.
David Pannick QC, an eminent public-law barrister, has followed suit in The Times on 30th June 2016 arguing in favour of this position. He eloquently summarises their position, that ‘as a matter of law, Article 50 notification commits the UK to withdrawal from the EU, and so is inconsistent with the 1972 act’. He goes on saying, ‘withdrawal is the object of the notification, and it is the legal effect’ (Ibid), and thus conflicts with the constitutional principles outlined above.
Dinah Rose QC—another eminent silk, who inter alia defended Julian Assange against extradition claims—has seemingly endorsed this position on Twitter too, positing that ‘the advisory point is important. Parliament’s intention was to seek advice: it’s for Parliament to decide whether to act on it’.
But, Kenneth Armstrong, Professor of European Law at Cambridge, has kicked back at this point. Armstrong’s piece ‘Push Me, Pull You: Whose Hand on the Article 50 Trigger?’ is particularly good at qualifying the normative intent aspect of the debate: Armstrong argues, in my opinion quite persuasively, that the referendum’s advisory nature means that the logical conclusion was for it to advise the government; otherwise the medium by which the electorate advises Parliament, i.e through elections, is completely superfluous. Was it just otherwise a national opinion-poll for parliamentarians to indulge over? I think not.
Several other prominent legal academics have also rejected the argument that Article 50 requires Parliamentary consent: Most comprehensively is the work of Mark Elliot, Professor of Public Law at Cambridge University. Elliot’s piece is particularly comprehensive—so it is highly recommended if you wish to fully understand the technicality at play—but he has two points of contention with Barber et al’s position: The first, put short, is that the notification itself does not turn the 1972 act into dead letter law, because it is uncertain as to what the outcome of the negotiations will be (contra Pannick). We might, for example, end up in the EEA whereby many of the rights and obligations will still apply, demonstrating the pertinent point that the Article 50 notification does not itself remove the domestic effectuation of EU law.
And second, Elliot avers that on a reading of the relevant case-law such a notification will not ‘frustrate the will of Parliament’, because the act merely provides the domestic incorporation of an international agreement with respect to the UK and her treaties; conferring no ‘particular rights upon anyone’. Elliot concludes, ‘on this analysis, no tension between the ECA 1972 and the prerogative arises because they concerned with distinct spheres of activity, the one operating on the plane of diplomacy and international law, and the other operating on the plane of domestic law.’ (Brexit | On why, as a matter of law, triggering Article 50 does not require Parliament to legislate, Mark Elliot, 2016).
Also noted in Elliot’s piece is the problem of jurisdiction: whether a court will adjudicate on a problem of such fundamental macroeconomic importance. For the reasons outlined by Elliot, Philip Allott’s piece in The Guardian should be almost entirely discounted, as there is no reasonable expectation that Judicial Review would be granted in a case such as this.
There are plenty of other posts that I could have included. But, for the sake of being able to sound intelligible to your friends, or for your own understanding, the above should suffice.
In sum, the only clear thing to me seems to be that the constitutional position is itself not clear. Consequently, the crowd-funded attempt by Jo Maugham QC to gain further legal advice on the problem, and indeed to potentially litigate a case in the High Court, is most welcome. On the balance of the argument as presented thus far, however, my judgment would fall on the side Elliot and others: the notification under Article 50 does not require Parliament to legislate.