Article 50: when law runs out

Given the social, political, economic and constitutional significance of triggering Article 50 of the Lisbon Treaty, which starts the process of withdrawal from the European Union, it is comforting that Theresa May has indicated that she will not do so until 2017 at the earliest. On the day after the referendum, Jeremy Corbyn, the Labour leader, said that Article 50 should be invoked immediately. But had then-Prime Minister David Cameron followed this advice he would have set in motion a process for which the government was unprepared. He might also have been acting unlawfully. Here’s why.

Starting the Article 50 process involves two steps. First, a member state must make the decision to withdraw from the EU “in accordance with its own constitutional requirements.” Second, that decision must be notified to the EU Council. However, if a decision is not taken in accordance with these “constitutional requirements,” then the notification will be unlawful. What, then, are the constitutional requirements of the UK? A fierce debate has erupted around this question, to which there is no ready answer.

The government has stated that it will decide the matter. But legal proceedings have been issued asserting that the decision can only be authorised by parliament. One high-profile claim has been brought by the city law firm Mishcon de Reya on behalf of a number of British citizens. These include Gina Miller, founder of investment management group SCM Private, who is represented by David Pannick QC, the doyen of constitutional law. Another challenge is being co-ordinated by public law expert John Halford of Bindmans. Others may emerge, although the fact that abuse has been directed at the existing claimants may discourage this. Miller and the other claimants should be praised for sticking their heads above the parapet to bring this case, described by Lord Justice Leveson at a hearing on 19th July as of “enormous constitutional significance.” But are they right?

In most democracies, determining the constitutional requirements to make or break international treaties is relatively straightforward: the procedure is set out in a written constitution. But the UK does not have one of those, as such. Our constitution is to be found in disparate statutes, conventions and the common law.

The law is nevertheless tolerably clear that the making of treaties is the prerogative of the government. In the past, this process did not require parliament’s approval but since an Act of 2010, parliamentary authorisation is needed before the government can commit the UK to international treaties. And the EU treaties are a special case. Since 2011, any new EU treaty has required both an Act of Parliament before it can be ratified and, if that treaty involves a further transfer of power to the EU, a referendum.

Once any treaty has been ratified, another step is required to give it effect in domestic law. Under our constitution a treaty that is binding in international law does not create rights and obligations domestically without a further Act of Parliament. Only parliament can make rights and obligations that are enforceable in our courts: that is what constitutional lawyers mean by parliamentary sovereignty. The EU treaties themselves only take effect under domestic law because in 1972 parliament passed the European Communities Act for that specific purpose.

However, the constitutional position is less clear when it comes to breaking treaties. No domestic legislation lays down the requirements for the UK’s withdrawal from the EU treaties. Some have argued that parliament could simply repeal the 1972 Act. At a stroke, all the rights and obligations arising under the EU treaties would no longer be enforceable in the UK. However, repeal of the 1972 Act would not be a legal departure under international law. It would leave the UK in breach of its international commitments until it left the EU two years later, or until some earlier treaty had been negotiated. In any event, EU law is inextricably bound into so many areas—immigration law, environmental law, employment law, public procurement law, competition law, to name just a few—that simple repeal would cause chaos. This would be neither a lawful nor a practical means of achieving Brexit. The government has, rightly, rejected such calls.

A gradual, negotiated withdrawal from the EU treaties is therefore essential. The government’s lawyers maintain that the process of breaking an international treaty is no different to making one. It is for the government to start the Article 50 process and to negotiate Brexit afterwards. Once a new treaty has been negotiated, or the UK has left the EU after the two-year period has expired, parliament will play its proper role by repealing the 1972 Act and passing another to give effect to a new treaty. That, they say, will meet the “constitutional requirements” of the UK.

Miller and the other litigants disagree. They point out that starting the Article 50 process will lead inevitably to the UK’s departure from the EU with the automatic loss of those rights of British citizens that arise from EU treaties. The 1972 Act will become a dead letter. Even if a new treaty is negotiated by the government, parliament will be left with Hobson’s choice when asked to pass it into law. If parliament rejects the deal and refuses to repeal the 1972 Act, as a result of Article 50 the UK will still leave the EU (unless the other 27 member states agree otherwise). Parliament will not have determined the UK’s best interests: the government and the EU will have done so. UK citizens will have lost their EU rights without parliament’s approval. This violates the constitutional principle of parliamentary sovereignty and would be contrary to the statutory framework that gives effect to EU law. So, the argument runs, our parliamentary representatives must first authorise the government to press the Brexit button.

The Brexiters’ response, no doubt, would be that the referendum result provides the democratic mandate for the government to withdraw from the EU without further authorisation by parliament. That argument would have some justification if the European Referendum Act 2015, which authorised the government to hold a referendum, also required that its result be implemented. But it does not. In contrast, the 2011 Act that authorised the referendum on the Alternative Vote stated that, in the event of a majority vote for that electoral system, the government was obliged to bring it about (although that was never tested given the outcome).

Under the 2015 Act, the Brexit referendum was merely advisory. Whether or not one agrees with Margaret Thatcher that referendums are only for “dictators and demagogues,” the UK is a representative democracy, not a direct one. Our constitution requires our parliamentary representatives to determine whether the UK is to leave the EU and if so, on what terms, and whether its citizens are to lose the EU rights to which they are entitled. They must give due weight to the result and the meaning of its single commandment, “Leave,” but make their own judgment of what is in the UK’s best interests.

Whatever the correct answer, we will soon have it. The High Court will hear the Article 50 claims on 13th-14th October and arrangements are to be made for an (extremely rare) leapfrog appeal directly to the Supreme Court in December this year. In the meantime, the big red Brexit button will continue to glow gently in May’s new office. When—or if—she presses it, my suspicion is that will only be after parliament has explicitly authorised her to do so.