Lindsay Stirton, Richard Kirkham and TT Arvind
On Thursday 23rd June, the electorate voted, by a
margin of 52% to 48% in a consultative referendum in favour of the United
Kingdom leaving the European Union. The following day the Prime Minister
announced his intention to step down as Prime Minister of the UK, albeit after
a period of time. Explaining this decision, the Prime Minister said in his resignation
statement
A negotiation with the European Union will need to begin
under a new prime minister and I think it's 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.
What role should Parliament
play in this process? At one level, the question is one of whether
triggering Article 50 can be done by executive act alone, or requires
legislation or some Parliamentary procedure. The question
is not a purely technical one as to which lever to push—if legislation is
required then this might require the consent of the Scottish Parliament by
means of a Sewel motion. Scottish First Minister Nicola
Sturgeon is
claiming this interpretation, though anticipates disagreement from the UK
Government.
More fundamentally, what is
the constitutional role of Parliament in the process of withdrawal? Does
the referendum mean that it must now remain a mute spectator to events as they
unfold? Or does the constitution require it to take a more active role in
the process?
Is Legislation
Required to Trigger Article 50?
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
David
Allen Green does a good job of parsing this provision. It requires, first a
decision, and secondly that this is taken in accordance with the Member State’s
constitutional requirements. First, he says, a decision could mean any
number of things.
–
a decision by the Prime
Minister in accordance with the “royal prerogative” (that is, in accordance
with the legal fiction that the Prime Minister can exercise powers on behalf of
the Crown);
–
as above, but the decision
being made by the Prime Minister either in consultation with his or her
cabinet, or after a vote of cabinet (or conceivably the same but with
consulting the Privy Council instead);
–
a decision by the Prime Minster
following a resolution or motion in either House of Parliament or by both houses;
–
a decision not by the Prime
Minister but one embedded somehow in a new Act of Parliament (or a
special statutory instrument or “order in council”), or a decision made in
compliance with an existing statutory or similar regime; or
As Green
points out, each of these would amount to a ‘decision’, but would each be in
accordance with the UK’s constitutional requirements? Mark Elliott is right
when he
suggests that the mainstream view is that Article 50 can be triggered without the involvement of
Parliament:
The general view, though, is that the Article 50 process — whereby the UK’s departure from the UK would
be negotiated — falls to be triggered by the Government exercising its
so-called prerogative powers to conduct foreign policy, rather than by Parliament enacting legislation. This
means that when (or if) Article 50 is invoked, that could happen without any
legislation being enacted by the UK Parliament. What this boils down to is that
Brexit could become irrevocable (unless the EU agrees otherwise, it follows
automatically two years after Article 50 is triggered) without the UK
Parliament ever enacting any legislation to which the Scottish Parliament could
object.
This view is challenged by Nick Barber, Tom Hickman and Jeff King. These
authors argue that domestic legislation has become so suffused with EU law—it
is implicit in the long title and the general scheme of the European Communities Act 1972 as
amended that we should be a member of the European Union. Equally, they argue
it is the plain intent of the European Parliamentary Elections Act 2002 that UK
citizens should have the right to vote in European elections. For the executive
to deny that would be to unconstitutional. To probe further, we have to delve
into some constitutional first principles, as well as parsing the UK
legislation in some detail.
Traditionally,
the power to conduct diplomatic affairs and to make treaties with other nations
falls to the Crown under the Royal prerogative, the residual powers of Her
Majesty, exercised on (Prime) Ministerial advice. However, prerogative power
gives way in the face of statutory regulation. To clarify, the relationship
between statute and prerogative is not like the relationship between statute
and common law. In
the latter case, while statute can amend the common law, the two can quite
happily co-exist, so that many areas of law are a near-seamless co-mingling of
statute and common law.
As far as
the prerogative is concerned, the relationship with statute is somewhat
different. The effect of legislation is not to amend but to displace prerogative. The prerogative
power is then said to be in abeyance. That is to say, it is extinguished, but
revives if Parliament later repeals its legislation.
It is an
established principle of constitutional law—known as the de Keyser principle (after the case of Attorney General v de Keyser’s Royal Hotel [1920] AC 508) that if Parliament has conferred powers on the
executive to undertake a certain act, then that act can only be done under
statutory powers. To allow otherwise would be to defeat the purpose of
legislating in the area. In particular, it would allow the Crown to circumvent
any controls or limits that Parliament had enacted. As Lord Atkinson put it in de Keyser’s case:
[W]hen
such a statute, expressing the will and intention of the King and of the three
estates of the realm, is passed, it abridges the Royal Prerogative while it is
in force to this extent: that the Crown can only do the particular thing under
and in accordance with the statutory provisions, and that its prerogative power
to do that thing is in abeyance. Whichever mode of expression be used, the
result intended to be indicated is, I think, the same — namely, that after the
statute has been passed, and while it is in force, the thing it empowers the
Crown to do can thenceforth only be done by and under the statute, and subject
to all the limitations, restrictions and conditions by it imposed, however
unrestricted the Royal Prerogative may theretofore have been.
Any
attempt to interpret the legislation governing the UK’s relation with this view
should be read in light of this traditionally restrictive judicial attitude
towards the limits of Royal prerogative in the face of controlling legislation.
Barber, Hickman and King make much the same argument based on Case of Proclamations, (1610) 12 Co. Rep. 74 and Fire Brigades Union Case [1995] 2 AC 513.
We will
not deal further with the application of the European Communities Act 1972
which has been addressed by Barber, Hickman and King in their post . However,
it is worth emphasising that in addition to this legislation, Parliament has
made further statutory provision regarding the exercise of the prerogative
power to change rights arising under EU law. Section 2 (1) of the European Union Act
2011 specifies certain conditions which must be satisfied before a “treaty
which amends or replaces TEU or TFEU” is ratified:
Treaties amending or replacing TEU or TFEU
(1) A treaty which amends or replaces TEU or TFEU is not to
be ratified unless—
(a) a statement relating to the treaty was laid before
Parliament in accordance with section 5,
(b) the treaty is approved by Act of Parliament, and
(c) the referendum condition or the exemption condition is
met.
(2) The referendum condition is that—
(a) the Act providing for the approval of the treaty
provides that the provision approving the treaty is not to come into force
until a referendum about whether the treaty should be ratified has been held
throughout the United Kingdom or, where the treaty also affects Gibraltar,
throughout the United Kingdom and Gibraltar,
(b) the referendum has been held, and
(c) the majority of those voting in the referendum are in
favour of the ratification of the
treaty.
(3) The exemption condition is that the Act providing for
the approval of the treaty states that the treaty does not fall within section
4.
In constitutional terms,
this section now forms the bedrock of the mechanism for ratifying changes in
our relationship with the European Union.
The mechanism in envisages is one of dual consent. The consent of the electorate through a
referendum is necessary where Section 4 applies, but even there it is not
sufficient. Even where the popular will
of the electorate has been made clear, the requirement for Parliamentary consent
through an Act remains. The 2011 Act
does not in any way make the referendum result binding (in contrast with, for
example Section 8 of the Parliamentary Voting System and
Constituencies Act 2011). The European Union
Referendum Act 2015 does not alter this system of dual consent.
We do not suggest that this
means Parliament could or should ignore the will of the electorate. However, the section empowers it to impose conditions
and safeguards, be they procedural or substantive, on the manner in which the consequences
of a vote in a referendum are dealt with.
This is a power it can and should exercise in the present situation. We need not deal with Section 4 in detail. It states
conditions under which a referendum is not required. But this does not affect
the fact that legislation is contemplated for any amendment to the TFEU or TEU under
Section 2.
Now strictly speaking, to trigger
Article 50 is to make use of a provision of an existing treaty, rather than the
creation of a new one. However, since the effect of would be to set in motion a process by which these Treaties
would be changed, it is strongly arguable—drawing on the de Keyser
principle—that Section 2 (1) implicitly restricts the exercise of the Royal
prerogative to trigger Article 50. Article 50 anticipates not just the
modification or amendment, but the complete annihilation of the treaty
obligations of the TEU and TFEU. And Section 2 (1) clearly envisages that where
such a modification is to be accomplished by Treaty then legislation is
required. The question is whether the law restricts the ability of the Crown,
by Royal prerogative, to trigger an automatic amendment to the Treaties which would
have required legislation to accomplish had it been done by Treaty.
We think that it is quite
likely that this would be the case. For one thing, Article 50 anticipates that
following notification, a Member State seeking to withdraw from the European
Union will enter into negotiations concerning a withdrawal agreement,
and such an agreement would clearly be governed by Section 2 (1). It is not
unrealistic to suggest that the alternative—that no agreement is reached, and
that the Treaties would cease to apply after two years—is similarly governed. Consider the consequences of the alternate
reading. Although Parliamentary consent
to the withdrawal agreement would in theory be required under Section 2(1), a
Parliamentary refusal to ratify the withdrawal agreement would in practice have
no effect. This is contrary to the
letter and spirit of the constitutional mechanism set up by the European Union
Act 2011 Act. In our view, an executive
action which ran the risk of producing such an outcome would arguably be
unconstitutional.
In summary, one might say
the following. While it is not unambiguously certain that legislation is
required in order to trigger Article 50, to do so by any other means would be a
constitutional quagmire. The Crown would effectively be in a position of
compelling Parliament to legislate if legal chaos were to be avoided. Moreover,
since Parliamentary consent (among other things) is required for any Treaty
change, it should not be for the Crown acting without Parliamentary consent to
accomplish by executive act that which cannot be done by Treaty.
It has long been
constitutional practice to secure Parliamentary consent for matters where there
was doubt about the scope of the prerogative. The grant of independence to
conquered colonies is a classic example. Invoking Article 50 should be no
exception.
Legislative Consent of the Scottish Parliament
If legislation is required,
or if the Government heeds our advice that even in the absence of a strict
constitutional requirement, it would create unimaginable difficulties to
proceed otherwise, then a second issue arises, namely whether the legislative consent
of the Scottish Parliament is required. Of central importance is Section 29 of the Scotland Act 1998 which
limits the competences of the Scottish Parliament, so that it must not legislate
contrary to EU law. Again, Mark Elliot takes the view that (even apart from his
opinion, discussed earlier) that legislative consent is not required, since the
Sewel convention is precisely that—a convention.
Second, the Scottish Parliament cannot anyway “block” UK
legislation on Brexit or on anything else. Certainly, it can withhold consent.
But because, as explained above, the UK Parliament is sovereign and can do as
it wishes, the absence of consent from the Scottish Parliament would not legally
disable Westminster from enacting Brexit legislation. This is so because the
“requirement” for consent is not a legal requirement at all: it is, ultimately,
no more than a political expectation that the UK Parliament will respect the
constitutional position of the Scottish Parliament by not riding roughshod over
it in certain circumstances.
There is no thing that we
would take issue with in this statement, but it misses one larger point. While
it would be “legal” for the Westminster Parliament to legislate for Scotland in
this way, in the sense that the courts would give effect to the terms of such
legislation it would not (as Elliott acknowledges) be constitutional (eg see Murkens). It would not be possible
to say that Brexit has been accomplished by an orderly constitutional process,
but has instead been accomplished in defiance of constitutional procedure. It
is worth recalling that the text of Article 50 speaks of Member States’
“constitutional requirements”, not merely “as prescribed by law” (to borrow the
language of the ECHR). It might therefore be possible for a court—drawing on
the approach of Attorney General v Jonathan Cape [1976] QB 752—to
recognise the Sewel convention in deciding whether the requirements of Article
50 had been met.
The Way Forward
The legal uncertainties outlined above connect all too
closely to the political crisis that the UK currently faces. Indeed, what we
are left with is something profoundly unsettling, in which former cherished
legal understandings based on Parliamentary sovereignty are in danger of being
overwhelmed by a dangerously selective use of an appeal to popular sovereignty.
Without some additional procedural route being created to confront this crisis
head on, then the prospect of ongoing constitutional turmoil, to add to the
economic and political turmoil that has already taken hold, is real. However,
what we also have is a once in a life time opportunity to settle not just one,
but possibly as many as three or four fundamental constitutional issues. Our
proposal to address this problem is as follows:
(i)
As a matter of constitutional
convention, whilst it might remain the authority of the PM under royal
prerogative to trigger Article 50, it is not one that he is constitutionally
obliged to trigger following an advisory referendum. Notably, Prime Minister
Cameron declined to pull the trigger, but instead recognised the authority of
the referendum by resigning.
(ii)
If Article 50 is to be triggered
by the PM, it is an exercise that should only be undertaken once approval has
been gained from the electorate through a referendum and Parliament. This
reading is supported by the de Keyser principle and the
precedent of the June 23 referendum.
(iii)
Parliament should consider itself
strongly bound by—that is to say, it should act in utmost deference to—the outcome
of the June 23 referendum vote but given that it remains constitutionally
supreme it is entitled to lay out procedural conditions on what must happen
before and after Article 50 is triggered.
(iv)
Those procedural conditions
should include:
(a) A requirement for the PM to submit his/her proposal for EU
negotiation to the electorate before triggering Article 50. We are
opened-minded as to whether this requires a General Election, and the need to
address the Fixed Terms Parliament Act 2011, or a second referendum.
(b) A requirement for certain consequences to follow should the
response of the electorate continue to be to support the triggering of Article
50. One clear commitment that should be made is to delegate authority to the
Scottish Parliament to stage a referendum on independence. Further commitments
should be made in relation to Northern Ireland and Gibraltar.
An alternative to (a) would
be to provide for a second referendum once the withdrawal negotiations are
complete, if the final withdrawal agreement deviated significantly from what
the electorate were promised. Parliament would, in the statute
authorising the invocation of Article 50, set these threshold conditions, based
on the promises made by the official campaign to leave the European Union.
If the referendum were to reject the proposals, the UK would remain a member of
the EU. The government would have to obtain the consent of the other EU
members to this before commencing on withdrawal negotiations.
In our view, such a
provision will give Parliament a constructive constitutional role to play in
the process. Given that the withdrawal negotiations will be led by politicians
who campaigned for Brexit, there will be little fear of deliberate sabotage of
the process. At the same time, it will protect the expectations of those
who voted for Brexit, and ensure that they have chance to respond if the conditions
they were promised Brexit would secure are not in fact secured.
We are aware that a riposte to this proposal is that it
disrespects the popular will of the electorate demonstrated by the results of
the June 23 referendum. But the counter-argument is that such a fundamental
shift in constitutional design as Brexit compels will not be stable unless the
procedure is seen to be fair by the losers to the debate as well as the
winners. Indeed, given that some of the most influential figures in the leave
campaign now seem to have reneged on some of the commitments made during the
campaign (e.g. immigration) then it
is probable that even those who originally voted to leave the EU will be
fundamentally dissatisfied with the eventual terms of the UK’s departure. They
would be right to be dissatisfied, as they are failing to give due respect to
the popular will expressed in the referendum. This, we suggest, makes it necessary for
Parliament to use the system of dual consent under Section 2(1) of the 2011 Act
to ensure that the withdrawal process is adequately policed. The suggestions we have outlined above will,
in our view, accomplish that end.
One of the mantras of the leave campaign was ‘to take back control’.
A first act of taking back control is to institute a process that allows all
parts of the UK to take responsibility for the proposed design of the new
constitutional order. Putting the process in place should be the duty of
Parliament. If Brexit really is the will of people it is hard to see on what
basis this proposal could be rejected.
