UK: Lords Constitution Committee: ‘unwise’ to trigger Article 50 without Parliament

In a report published today, The invoking of Article 50, the committee considers the roles that government and Parliament should play in the triggering of Article 50 of the Treaty on European Union—the legal mechanism by which the UK will leave the EU.

Later this year the courts may rule on whether it is a legal requirement that legislation must be passed before the government can trigger Article 50.

To aid its deliberations, the committee held a private seminar in July 2016, subject to the Chatham House Rule. It was attended by Lord Hope of Craighead, former Deputy President of the Supreme Court; Lord Mackay of Clashfern, former Lord Chancellor; Dominic Grieve QC MP, former Attorney General; Lord Lisvane, former Clerk of the House of Commons; Dr Alan Renwick, deputy director of the UCL Constitution Unit and Jack Straw, former Secretary of State for Justice and Lord Chancellor, Leader of the House of Commons and Foreign Secretary.

The report states that “Constitutional change of such magnitude must be approached carefully and scrutinised appropriately, with the roles and responsibilities of both Government and Parliament set out clearly in advance.”

It adds that primary legislation provides “legal certainty” and would address constitutional uncertainties.

On the issues of legislative consent motions it states that while “political difficulties” may arise “should the devolved legislatures choose to vote on legislative consent motions relating to a Bill” the consent of the devolved nations would not be required, especially if the bill is “tightly drawn” and restricted to the issue of triggering Article 50.

Indeed, it adds that “it is clear that the UK Parliament could legally pass such legislation even if legislative consent were withheld by any of the devolved legislatures. Nonetheless, this issue would not arise should parliamentary involvement take the form of a resolution, rather than legislation, and in either case the position taken by the devolved legislatures would be a political rather than a legal constraint on the UK Parliament.”

A resolution, on the other hand, would be quicker but “would not necessarily provide a water-tight legal authority for triggering Article 50 against challenges in either the domestic or European courts” and would offer far less scope for amendment or debate than primary legislation.

Speaking to our sister publication Scottish Legal News, Stephen Tierney, the committee’s legal adviser (pictured), said: “The main focus of the report is the role Parliament should play in the Brexit process.

“The committee is clear that the government should not trigger Article 50 without consulting the UK Parliament, and that Parliament’s role should be an ongoing one, extending to the negotiation process itself and to the point where the negotiated package is agreed and adopted.

“This supplements similar demands by the Scottish Parliament for a full voice in the Brexit process.”

Lord Lang of Monkton, chairman of the committee, said: “The referendum result was clear and it is right that the government are preparing to take Britain out of the EU. However, our constitution is built on the principle of parliamentary sovereignty and the decision to act following the referendum should be taken by Parliament.

“Parliament should be asked to approve the decision to trigger Article 50—a decision which will start the formal process of the UK leaving the EU and set a deadline for the UK’s exit.

“Parliament and the government will need to work together to ensure that the UK achieves the best possible outcome when it withdraws from the EU. It is therefore important that Parliament plays a key role in scrutinising the Brexit negotiations once Article 50 is triggered. We all want the negotiations to produce a deal that works for both the UK and the EU, and Parliament must be involved in holding the government to account in delivering that.”