Why an Act of Parliament is Required before Brexit is Formally Launched, by Peter Oliver

 Résumé : Ce post analyse la décision de la Cour Suprême du RU dans laquelle les juges ont décidé à 8 voix contre 3 que le gouvernement du RU ne pouvait déclencher la procédure de retrait de l’UE sans l’accord du Parlement du RU. Les juges ont néanmoins considéré à l’unanimité que les règles relatives à la dévolution n’impliquaient pas que le gouvernement doive requérir également l’accord du parlement de l’Irlande du Nord.  Les conséquences de cette décision ne se sont pas fait attendre. Le gouverment a présenté un court projet de loi relatif à la notification de retrait du RU de l’UE devant la Chambre des Communes. Le gouvernement a accordé cinq jours au Parlement pour débattre de la procédure de retrait de l’UE. Si l’un des slogans des pro-Brexit a toujours été la volonté de reprendre le contrôle, cela se fera sans laisser beaucoup de marge de manoeuvre au Parlement du RU. Une fois la procédure de retrait déclenchée, ce dernier devrait être informé  à tout le moins dans les mêmes termes que le Parlement européen et consulté en dernier ressort dans des délais à nouveau très brefs pour ratifier l’accord final négocié par le gouvernement britannique.

In an earlier post , I presented the judgment of the High Court of England and Wales in the Gina Miller case. Here, I will consider the ruling of 24 January of the Supreme Court of the United Kingdom  in which it:

  • dismissed the Government’s appeal against that judgment by 8 votes to 3 and
  • unanimously rejected two separate actions brought in the Northern Irish courts for a declaration that such legislation could not be enacted without the consent of the Northern Ireland Assembly.

Needless to say, the judgments of the Supreme Court are very long and can only be summarised briefly here – all the more so because I have thought it helpful for the French reader to be informed, at the end of this post, of the sequel to the judgment. A more detailed summary can be found here.

The UK Parliament Issue

In my earlier post , I listed the points on which the parties agreed, as did the judges.  None of these points was challenged in the Supreme Court (see e.g. para 26 of the majority judgment). Delivering a single judgment, the eight judges in the majority confirmed the ruling of the High Court. In view of the very broad directly applicable rights which citizens and residents of the UK derived from the EU Treaties, the Supreme Court ruled:

“It would be inconsistent with long-standing and fundamental principle for such a far-reaching change to the UK constitutional arrangements [i.e. withdrawal from the EU] to be brought about by ministerial decision or ministerial action alone.  All the more so when the source in question was brought into existence by Parliament through primary legislation [the European Communities Act 1972], which gave that source [EU law] an overriding supremacy in the hierarchy of domestic legal sources.

… We cannot accept that a major change to UK constitutional arrangements can be achieved by ministers alone; it must be effected in the only way that the UK constitution recognises, namely by Parliamentary legislation.”  (paras 81-82)

The majority also pointed out that, if the Government’s view were correct, it could have denounced the EU Treaties at any time after 2 January 1973 without authorisation by Parliament and without a referendum (para 91)

Three judges dissented.  The leading judgment of the dissenters was delivered by Lord Reed.  At the risk of over-simplification, his view may be summarised as follows: the European Communities Act 1972 merely introduced what is now EU law into the legal systems of the UK so long as the UK did not denounce it.  Moreover, Parliament enacted the European Union (Amendment) Act 2008 which added the Treaty of Lisbon to the list of EU Treaties applying within the UK as a result of the 1972 Act; and the Lisbon Treaty introduced Article 50 into the TEU.  Accordingly, he concluded:

“If Parliament chooses to give domestic effect to a treaty containing a power of termination, it does not follow that Parliament must have stripped the Crown [i.e. the Government] of its authority to exercise [the power to withdraw from the EU Treaties].” (para 204)

His reasoning, which is more detailed than that of the majority, certainly has some eminent admirers: see here

The Devolution Issue

In the same judgment, the Supreme Court ruled on two references arising out of two joined cases decided by the High Court of Northern Ireland  and seeking answers to a number of questions.  These questions asked essentially whether the constitutional arrangements applicable to the province, including the British-Irish Agreement of 1998, required an Act of the UK Parliament before the Article 50 notification was lodged and, if so, whether the consent of the Northern Ireland Assembly was a necessary prerequisite to the adoption of that Act. The applicants in those cases argued that both questions should be answered in the affirmative, while the UK and Northern Irish Governments pleaded the contrary position.  The Scottish and Welsh Governments intervened to support the essence of the applicants’ claims.

The constitutional status of Northern Ireland is governed in part by arrangements (including the British-Irish Agreement), which are the outcome of the peace process between the Protestant and Catholic communities in that province.  At the same time, the devolution settlements applicable in Scotland, Wales and Northern Ireland have two key features in common:

  • the executive and legislative competence of the devolved governments is subject to the constraint laid down by Acts of the UK Parliament that those governments must act in compliance with EU law; and
  • according to the Sewel Convention, the UK Government will not normally take action with respect to devolved matters without the consent of the devolved government concerned.  In relation to Scotland, the latter convention has now been placed on a statutory footing by section 2 of the Scotland Act 2016.

Delivering a single judgment, all eleven judges rejected the applicants’ case.

As to the first question, the majority had already held that UK legislation was necessary (see above).

As to the second issue, it is plain that withdrawing from the EU will remove a major constraint on the devolved powers of Scotland, Wales and Northern Ireland in areas which currently fall within the scope of EU law (e.g. agriculture, fisheries and the environment).  The Supreme Court held that political conventions such as the Sewel Convention are unenforceable in law, saying: “Judges are neither the parents nor the guardians of political conventions; they are merely observers” (para 146).  Indeed, the UK legislation incorporating the Treaty of Lisbon into UK law had been enacted without the consent of any of the devolved parliaments.  Moreover, the wording of section 2 of the Scotland Act 2016 was not such as to turn the Sewel Convention into a binding statutory provision, the Court held.  As one eminent constitutional lawyer has pointed out, this interpretation has rendered section 2 no more than “a political gesture devoid of legal value ; for a further expression of concern, see here.

Many observers will feel relief that the power of veto which the Walloon Government has been able to exercise over the ratification of the CETA Agreement between the EU and Canada has not been replicated in the UK.  At the same time, it appears harsh that the Scotland, Wales and Northern Ireland do not even have the right to be consulted on this matter; but that follows from the wording of the relevant Acts of Parliament.

In the EU referendum, 62% of the population of Scotland voted to remain in the EU.  Nicola Sturgeon, Scotland’s First Minister and a member of the separatist Scottish National Party (SNP), is threatening to hold a second referendum on independence if Scotland’s view that a “hard” Brexit must be avoided at all cost is not heeded.   However, in view of the opinion polls, if such a referendum were to be held, her chances of success would be slim

The European Union (Notification of Withdrawal) Bill

As a result of the Supreme Court, the Government published the European Union (Notification of Withdrawal) Bill. It is no accident that this is a minimalist text consisting of two short clauses amounting to no more than 67 words – the clear intention being to limit Parliament’s influence over the withdrawal process.

Clause 1(1) provides: “The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

The official Explanatory Notes on this Bill make it clear that the reference in clause 1(1) to “the EU” permits the Government to withdraw from the Euratom Treaty as well as the EU Treaties ».  That is because section 3(2) of the European Union (Amendment) Act 2008   provides: “A reference to the EU in an Act or an instrument made under an Act includes, if and in so far as the context permits or requires, a reference to the European Atomic Energy Community”.

Controversially, the Government has allotted only five days for Parliament to debate this Bill.  Parliament had been allowed considerably more days to debate the Bills approving key amendments to the EU Treaties such as the Treaty of Lisbon.

On 1 February, 498 MPs voted in favour of the discussion of the Bill, while 114 (including 50 Scottish National Party, 47 Labour, 7 Liberal Democrat MPs and 1 Conservative) voted against.   The next stage in the legislative process is for the House of Commons  to consider the Bill in detail and decide to introduce one or more amendments, particularly with a view to ensuring that it is adequately involved during the negotiations and that a “hard” Brexit is avoided.  The White Paper setting out its plan for Brexit, which was issued the following day , may be of assistance to Parliament in this process.

“Taking Back Control”?

The slogan of the Brexiters during the referendum campaign was “taking back control” of our laws to the Parliament at Westminster; and the Prime Minister reiterated this point again in the speech which she made on 17 January setting out the Government’s negotiating objectives for exiting the EU.

So it is deeply ironic that the present Government has shown scant regard for parliamentary democracy in relation to Brexit.

Not only has the Prime Minister fought to the bitter end to prevent Parliament being involved at all in the decision to trigger the Article 50 withdrawal process.  But also, once it was forced to do so by “unelected judges”, it has done its level best to prevent Parliament from influencing the process in any meaningful way.

In its White Paper on Brexit of 2 February, the Government repeated once again that it cannot reveal much of its hand if its negotiations are to be successful.  But it did also undertake to “ensure that the UK Parliament receives at least as much information as that received by members of the European Parliament”(para 1.11).   That does not appear to be a particularly generous concession: the UK Government would be a laughing stock, if its own Parliament were deprived of information which it has been given to the European Parliament.  Ironically, this point neatly illustrates how dependent the UK sometimes is on the standards set by the EU.

Also, in her speech of 17 January she did promise that the Government would “put the final deal that is agreed between the UK and the EU [i.e. the Withdrawal Agreement based on Article 50 TEU] to a vote in both Houses of Parliament, before it comes into force”. However, this appears to be a rather empty gesture – and not just because in principle such a vote is required anyway by section 20 of the Constitutional Reform and Governance Act 2010

Under Article 50(3) TEU the UK will automatically cease to be a member of the EU two years after it notifies its intention of leaving, unless either:

  1. the Withdrawal Agreement is in force and it specifies another date or
  2.  the two-year deadline is extended by a unanimous agreement of the European Council in agreement with the UK.

The chances of either 1. or 2. occurring are very slim.  When Parliament finally has the opportunity to vote on the as yet unratified Withdrawal Agreement, the two-year deadline will be so close that Parliament will not have a genuine opportunity to obtain any amendment to that Treaty.  Parliament’s room for manoeuvre will be all the more constrained if, as is widely believed, the UK is unable to retract its Article 50 notification without the consent of all the other Member States.  In all probability, Parliament will be presented with a fait accompli.

Peter Oliver

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