House of Lords Select Committee on the Constitution report on Parliament and the Article 50 process

As Parliament returned after the summer recess, the House of Lords Select Committee on the Constitution published a report entitled ‘The invoking of…

As Parliament returned after the summer recess, the House of Lords Select Committee on the Constitution published a report entitled ‘The invoking of Article 50’. Whilst no one has a crystal ball to predict when Article 50 will be invoked, what is clear is that there is considerable debate and differences of opinion as to whether this can be achieved using the royal prerogative power, or whether Parliament will need to be involved in some way or another. Whilst the Government has maintained that they can trigger Article 50 by royal prerogative power, a judicial review of this position has commenced and is expected to be heard in the High Court in mid to late October. 

A bill or a resolution?

Without expressing a view on the various legal arguments in relation to how Article 50 can be triggered, the House of Lords report sets out the two options should Parliament be involved in approving the triggering of Article 50, which are summarised below.

  1. A bill?
    Legislation brings the benefit of legal certainty.  Any Act would make it clear that Parliament has given its authority for withdrawal from the EU to commence and that this may be the vehicle that leads to existing legislation being amended or repealed.  This gets around potential legal difficulties concerning whether the royal prerogative power can override statute, for example if the European Communities Act 1972 is repealed or amended. An Act could also lay out preconditions that must be met before the Government could trigger Article 50.

    Any Act would proceed through both Houses of Parliament which would give the opportunity for debate and could be a more transparent way of ensuring that the voice of the electorate is heard.  That said, keeping the debate confined to the scope of the Bill may prove difficult on this emotive issue.  The legislative process could well take some time for a consensus to be reached, however the end result would be an Act approved by both Houses. 

  2. A resolution?
    If an Act is not used, Parliament’s involvement could be by way of a resolution which has the advantage over legislation in terms of speed.  Resolutions can simply be agreed in the Commons or both Houses which could ultimately be quicker than a bill. A resolution could also include preconditions to be met prior to the triggering of Article 50, but has the complication that it would not be legally binding on the Government. Consideration would need to be given to whether the assent of both Houses would be needed as the position is not clear cut.  What is apparent is that if the assent of both Houses is required, this raises a further difficulty because there is the possibility that there could be two different resolutions agreed, with no process for reconciling them.  

We are only at the beginning of the legal process to withdraw from the EU but what is clear is that there will be many legal arguments ahead and whilst there are many noises about who can press the Article 50 button, and whether or not we should press that button, the prime minister has maintained the position that the wishes of the electorate must be enacted.

To discuss any of the issues in this update please email brexit.group@weightmans.com.

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