Clothing Bare Brexit

The Supreme Court has decided that Parliament must provide statutory authorisation before the Prime Minister serves notice of the UK’s intention to withdraw from the European Union in terms of Article 50 TEU. A Bill – the European Union (Notification of Withdrawal) Bill – was presented to Parliament on 26^th January 2017 and is due to complete its second and third readings by 8 February.

Lawyers will pick over the Supreme Court’s judgment for all its constitutional nuance. And as my colleague Mark Elliott explains, there is plenty in the judgment to discuss. Yet the outcome of the judgment – in strict legal terms – was always going to be narrow and technical. Either the Government could exercise prerogative powers to give notice under Article 50 or it needed statutory authorisation. Having already been embarrassed by its lack of a plan for Brexit, the Government was now being exposed by the Supreme Court as legally naked in offering a referendum without having the legal power to act on a vote for the UK to leave the EU.

Parliament must now stitch together some legal clothing to cover the Government’s bare Brexit. The Supreme Court itself indicated that Parliament could ‘content itself with a very brief statute’ [para. 122].  And indeed, the Bill presented this week to Parliament is positively skimpy. It consists of two clauses, with clause one stating:

(1) 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.

(2) This section has effect despite any provision made by or under the European 
Communities Act 1972 or any other enactment.

So has the victory of the lead claimants in the Miller case proved somewhat hollow? In media interviews this week, Gina Miller stressed that the point of the case was to ensure Parliament played its role. Yet there appeared to be a clear distinction between, on the one hand, Parliament being asked to give formal statutory authorisation to begin the withdrawal process and, on the other hand Parliament’s role in scrutinising the negotiation and conclusion of the withdrawal agreement and any other associated agreements on the UK’s future relationship with the EU. In any case, since the referendum, both Houses of Parliament and their select committees have launched enquiry after enquiry, seeking to hold the Government to account for its Brexit strategy. Noting the power which the European Parliament has to give its consent to a withdrawal agreement under Article 50, the House of Lords European Committee has been trying to ‘bootstrap Brexit’ by demanding that the UK Parliament have at least the same level of scrutiny and oversight as that of the European Parliament. Viewed in this light, it was, perhaps, less obvious what the outcome of the Supreme Court case would add to Parliamentary oversight beyond what Parliament itself was capable of achieving.

But if the Supreme Court ruling represented the law of politics, there is also a politics of law. A Bill to authorise the triggering of Article 50 was always going to bring to the fore the tension between the referendum as an exercise in direct democracy and the role of MPs in a system of representative democracy. Having provided the legal authority for a referendum, by what political authority could or should MPs collectively decide not to give the Prime Minister the authority to trigger Article 50? As a Government Bill, the Government will expect Conservative MPs to back its leader and vote to trigger Article 50. The Labour leader has given his own party a three-line whip to support the Bill, prompting one shadow Cabinet member Jo Stevens and one shadow spokesperson Tulip Siddiq to resign from the Opposition front bench.  MPs from the Scottish National Party – whose MPs did not vote in favour of holding the EU referendum in the first place – will vote against the Bill. Liberal Democrat MPs have threatened to vote against the Bill unless it contains the possibility for a referendum on the final Brexit deal. Beyond the party positions, for individual MPs there is the dilemma of whether to act simply as the delegate of their constituencies – voting for or against the Bill in line with the dominant local Leave or Remain sentiments – or to act as representatives, constrained only by their conscience and the demands of party discipline. It seems likely that the Bill will be passed, but the process will expose the difficulties in reconciling the politics of the popular mandate with the politics of parliamentary democracy.

But there won’t simply be a vote on the Bill as presented to Parliament. Already amendments have been tabled seeking, amongst other things, to give Parliament the power to approve any withdrawal and future cooperation agreements; to put the role of the Joint Ministerial Committee – the forum for the representation of the interests of the devolved governments – on a statutory footing; and to suspend the coming into effect of the Act unless both Houses of Parliament have approved the Brexit White Paper which the Prime Minister has promised to place before Parliament.

And so, the political parties, MPs and the Lords will clothe the Article 50 Bill with a range of amendments which the Government will seek to remove. If we thought that the Brexit negotiations were going to be like a game of cards, we probably didn’t imagine it would be an exercise in Strip Poker.