What role will parliament have in triggering Article 50 and shaping the terms of Brexit?

robert_hazell (1)Jack_Sheldon

Constitutional lawyers have been engaged in a major debate over whether parliamentary authorisation is needed for Article 50 to be triggered and the process of negotiating Brexit to formally begin. In this post Robert Hazell and Jack Sheldon move the discussion on, asking how parliament might debate the triggering of Article 50 and, once it has been triggered, what role parliament might play in scrutinising the negotiations that follow.

There has been an outpouring of blog posts discussing whether there is a legal requirement for parliamentary authorisation before the Prime Minister can trigger Article 50 and start the formal negotiations to lead to the UK’s withdrawal from the EU. However, it is probable that regardless of the legal position, the political realities will require some form of parliamentary consent. This post moves the discussion on, to ask in what ways parliament might debate the triggering of Article 50, and, once it has been triggered, what role parliament might play in scrutinising the Brexit negotiations that follow.

Controlling the use of Article 50

Whether the government wants it or not, parliament is likely to have an opportunity to express its support for or opposition to the triggering of Article 50. This could take the form of either legislation, which would formally bind the Prime Minister and government, or a debate on a resolution about the triggering of Article 50 and the conduct of negotiations.

Legislation

Some have argued for the passage of legislation to govern the Brexit process. A court action has been launched to test whether legislation is required before Article 50 can be triggered. Undoubtedly much primary and other legislation will be necessary over the coming years to achieve separation. To explain the different options, this post assumes the court action will fail, so that legislation prior to triggering Article 50 is optional, and not a legal requirement.

For the government, legislation is not an attractive option. To introduce a bill now would take time, and the parliamentary proceedings on any bill would be bound to attract amendments (in particular from the government’s own MPs) aimed at limiting the government’s discretion, which could also show up serious disagreements within the governing party. The handling problems in the Lords (where the government has no majority, and no control over time) could be even greater than in the Commons.

A legislative process would probably result in the government retaining some discretion, but being forced to make concessions to bind its hands in the negotiations (for example, preserving the rights of EU nationals already resident in the UK). The consistency and interpretation of such provisions in an Act would themselves become the grounds for much political and legal skirmishing in the next few years. The government will wish to avoid legislation as being too risky, too prescriptive, and too uncertain in terms of its legal effects.

A resolution to authorise the triggering of Article 50

A much simpler way for the government to obtain explicit approval from the House of Commons would be for it to table a motion for debate and seek the approval of the House. Such motions are not binding on the government (only legislation is) but, depending on any majority received, it would be a powerful political brake. The motion might say ‘That the House notes the outcome of the referendum held on 23 June and invites the Government to invoke Article 50…’. It could also include other phrases designed to maximise support and perhaps set out key objectives for negotiations. It need not set a specific timetable. Article 50 need not be triggered right away. The government would want to establish parliamentary approval first and then try to retain some discretion on the actual timing.

If the government chose not to seek parliamentary approval itself, it is probable that there would be serious dissent within the governing party. The opposition could exploit this by tabling motions for debate on opposition days, which would embarrass the government. If this opportunity were not taken up, backbenchers would be likely to obtain debating time through the Backbench Business Committee (it should be remembered that the road to the recent referendum started with a debate allowed by the Backbench Business Committee, leading to 81 Conservative MPs defying the whips to vote for an in/out referendum in October 2011). Either route could be used to give the House the opportunity to vote on a relevant motion. Early day motions (which are not debated, but allow multiple members to sign up to show strength of feeling) might also be used and would be likely to attract significant numbers of signatures. This would boost the case for debate and vote on the floor.

When might this happen?

The summer recess begins on 21 July and lasts for almost three months, until 10 October, save that parliament is due to return for a two-week session from 5 to 15 September, before the party conferences. If the government wants to trigger Article 50 earlier than October, it is likely to recall parliament to seek approval for doing so. Under standing orders of the House (SO 13), the House of Commons is recalled during a recess only when the government proposes a recall, and the Speaker agrees. So the initiative lies with the government. If the government decides to trigger Article 50 and declines to recall parliament there are things that members can do, purely politically, to put pressure on the government to do so – the last time such a move succeeded was in 2002, when government backbencher Graham Allen organised a campaign to recall the Commons over the Iraq war. This caused sufficient embarrassment to the government that it ultimately gave in.

It is more likely that Article 50 will be triggered some time after parliament reconvenes in October. Theresa May has indicated that Article 50 will not be triggered until a ‘UK approach and objectives for negotiations’ have been established. During her leadership campaign she suggested that this was unlikely to be before the end of the year, although that was on the basis of not taking office until September. David Davis, the new Secretary of State for Exiting the European Union, has written that the formal negotiations should begin ‘before or by the start of next year’.

Parliamentary oversight of the Brexit negotiations

Once Article 50 has been triggered negotiations between the UK and the other 27 EU member states on the terms of Brexit will begin. The government will conduct the negotiations, but parliament is likely to demand an input and to be kept informed of progress. Mechanisms by which this oversight function can be carried out include scrutiny of the usual kind, such as through parliamentary questions, ministerial statements and select committees. It is also possible that a procedure similar to the ‘scrutiny reserve’, which enables committees in the Commons and the Lords to constrain the government’s position prior to European Council meetings, could be introduced.

Parliamentary questions, ministerial statements and debates

The withdrawal process will be the daily stuff of politics for years, with every opportunity taken from Prime Minister’s Questions to adjournment debates and petitions to canvass the issues. Backbenchers will initiate debates and private members’ bills that press their own viewpoints, as well as bombarding ministers with parliamentary questions. The Speaker is likely to accept urgent questions relating to aspects of the negotiation on a regular basis, and ministers will be expected to make statements to the House following negotiation meetings, after which there will be opportunities for opposition and backbench members to participate in extended question and answer sessions. There is also likely to be a dedicated question time at which questions can be put to ministers in the new Department for Exiting the European Union.

When the legislation to abolish the Greater London Council was going through parliament in the mid-1980s, Tony Banks MP, the former chairman of the GLC, tabled hundreds of parliamentary questions asking how various parts of London would be administered under the new arrangements. It was clear from the slow stream of answers he received, that many of the implications had not been thought through and policy was being made up on the hoof as he raised each new issue.

Scrutiny through select committees

Lord Lisvane, the former Clerk of the House of Commons, has predicted that there could be a ‘super-committee’ to oversee the Brexit process. This is likely to take the form of a select committee scrutinising the work of the Department for Exiting the European Union. The existing select committees of both Houses can also be expected, on their own initiative, to begin inquiries. In the Commons, the Foreign Affairs Committee is likely to be in the lead, with the Treasury Committee, the European Scrutiny Committee and the Public Administration and Constitutional Affairs Committee close behind (PACAC is chaired by a prominent Brexiteer, Bernard Jenkin). It is almost certain that a committee to shadow the Department for International Trade will also be established. In the Lords, the EU Committee and its sub-committees are the pivot of its committee system. These committees can be expected to demand that ministers set out their plans for the process which will follow the referendum result. The other select committees will follow: all areas of government activity are affected by Brexit to a greater or lesser degree.

The ‘scrutiny reserve’ procedure

The Lords EU Committee and the Commons European Scrutiny Committee are each the guardians of the so-called ‘scrutiny reserve resolution’. Its purpose is to prevent ministers entering into politically or legally significant agreements in the EU without first having the consent of the committees and each House. While it would be hard to argue that Article 50 notifications fall within the exact terms of the resolution, they undoubtedly fall within its spirit.

The scrutiny reserve procedure enables either the House of Commons or the Lords to constrain ministers from giving agreement in the European Council of Ministers to an EU proposal that has not ‘cleared scrutiny’. It does not amount to a veto: a minister may exceptionally give agreement to an uncleared proposal, but only with the agreement of the European committees in both Houses, or if there are special reasons such as urgency, or the risk of damage to UK national interests. What it does do is enable parliament to consider before European Council meetings the main issues that are coming up, and to give UK ministers a strong steer on their negotiating line. This procedure would not apply to the Article 50 negotiations, which will be negotiations with Europe rather than within Europe. However, It is possible to envisage the government accepting a similar procedure for the Brexit negotiations, using the scrutiny reserve procedure and the existing European committees in each House (with the Commons committee chaired by the arch-Brexiteer Sir Bill Cash), or through establishing a new joint committee of both houses. The scrutiny reserve procedure cannot completely tie ministers’ hands, because all negotiations involve trade-offs and last minute deals; but – so long as parliament has sufficient notice of what is coming up – it can enable parliament to set clear parameters.

The scrutiny reserve is another form of ‘soft’ parliamentary procedure on which Ministers could defy the two Houses if they were determined to do so. However, the new Prime Minister will be invited to appear before the Commons Liaison Committee at an early stage, and the select committee chairs will want to focus mainly on parliament’s role in scrutinising the post-referendum process. It will be hard for Theresa May to avoid giving assurances that the government will co-operate fully with any select committee inquiries, and that it will observe the spirit of the scrutiny reserve procedure.

The implications of Brexit for Whitehall and Westminister are explored further in a Constitution Unit briefing paper by Nick Wright and Oliver Patel which can be accessed here.

About the authors

Robert Hazell is Professor of Government and the Constitution at the Constitution Unit.

Jack Sheldon is the Editor of the Constitution Unit blog and newsletter.

5 thoughts on “What role will parliament have in triggering Article 50 and shaping the terms of Brexit?

  1. Parliament of Great Britain

    The head of state of the United Kingdom is the monarch, presently Queen Elizabeth II. The monarch is by law the head of the executive and judicial portions of government as well as a part of the legislative portion of government (Parliament). She has the right to summon Parliament and to dissolve it. She opens each new session of Parliament with a speech written by the prime minister’s government outlining their goals. The monarch gives assent to bills passed by Parliament, though her assent is now largely a formality.

    The prime minister is head of government. Political power resides with the prime minister and the Cabinet, which has about 20 members. These are responsible for administering all national affairs, setting policy, and introducing legislation in Parliament. Most members of the Cabinet are members of the House of Commons, but members of the House of Lords may participate, and the lord chancellor (the speaker of the House of Lords) is always a Cabinet minister. The prime minister is always a member of the House of Commons and the leader of the party elected to a majority of seats in that body.

    Parliament handles matters that concern the United Kingdom as a whole, including foreign affairs, defense, social security, and overall economic policy. Some powers of regional government have been devolved, or passed down, to assemblies in Scotland, Wales, and Northern Ireland. The United Kingdom’s Parliament retains responsibility for the regional government of England.

    Until the early years of the 20th century, the House of Lords had considerable power. The Lords could veto bills passed by the Commons and could thereby direct public policy and keep a tight rein on liberal or socialist tendencies. This authority was stripped away by the Parliament Acts of 1911 and 1949. These bills enabled the Commons to override the House of Lords by allowing bills to become law after a specified time, even if the Lords failed to act or vetoed them. The House of Lords still plays an important role in revising bills initiated by the House of Commons, especially those that have not been formulated in great enough detail. In addition, the Lords initiates noncontroversial bills.

    The House of Commons is the real legislative authority. The national chief executive is the prime minister, who is the leader of the majority party in the Commons. Almost all legislation is introduced by the majority party. The Commons has complete control of money bills—all tax policy and expenditures. Under the law all legislation must be passed by the Commons and Lords in identical form and be assented to by the monarch. In practice, however, the Lords rarely holds up legislation passed by the Commons, and the sovereign almost automatically agrees to any bill passed. The royal veto power has not been used since the reign of Queen Anne, early in the 18th century.

    Sessions of Parliament

    Under a law passed in 1911 a general election for all members of the House of Commons must be held every five years. Elections, however, may be called at any time within that period. Dissolution of Parliament and new elections can be forced by opposition parties. If, for instance, the ruling party loses a vote of confidence in Parliament on a critical issue, a general election may be called. Or if the ruling party believes it is riding a crest of popularity, it may call an election. Prime Minister Margaret Thatcher called such an election for June 1987, and her party won by a considerable margin. If a vacancy occurs in the Commons, a by-election is held to fill the seat.

    After a general election the monarch appoints as prime minister the leader of the party that has the majority of members in the Commons. If no party has a majority, the one with the most members must reach an agreement with one or more other parties to form a coalition government. In times of national crisis a coalition government may be formed even if one party has a majority. The government of Prime Minister Winston Churchill during World War II was such a coalition.

    The opening of a new Parliament takes place shortly after an election. Sessions of a sitting Parliament normally begin in late October or early November. The opening of a session is a formal ceremonial affair. The monarch reads a speech to both houses outlining the government’s goals for the session. A Parliament cannot be legally constituted without the presence of the monarch and the rest of the government.

    The primary officials of the Commons are the speaker, the chairman of Ways and Means, two deputy chairmen, the clerk, the sergeant at arms, and heads of such departments as the library, the administration, and the official report. The speaker of the house presides over and regulates debate and rules on points of order. He does not speak during debate or vote on bills, unless a vote is tied. Each party has a whip, whose duty it is to assure attendance of members during votes. There is also an officially recognized leader of the opposition, a member of the largest minority party.

    Proposed legislation usually originates with the Cabinet. Every bill gets a public reading, which is basically an order to get it printed. At the second reading debate begins. The bill is then sent to the proper committee of the Commons for a clause-by-clause analysis. Committees are organized in relation to the Cabinet departments—defense, foreign policy, agriculture, energy, environment, and so forth. In some cases the whole house may act as a committee.

    After review by a committee the bill is reported to the Commons for a final reading, debate, and vote. The vote in Parliament is called a division of the house, meaning that the members divide, usually along party lines, for or against the legislation. Bills originating in the Lords follow much the same procedure, but the entire house usually participates at the committee stage, as the Committee of the Whole House.

    Bills passed by Parliament are made part of the public record. Unlike legislation in the United States, the validity of acts of Parliament cannot be challenged. There is no court higher than Parliament. Appealing the constitutionality of a law does not apply, because the constitution of the United Kingdom is only partly written, and Parliament essentially decides what the constitution comprises at any given time.

    The members of the Commons also participate in a regularly scheduled question period, in which members require government ministers, including the prime minister, to answer questions regarding their departments. This question time generates policy debates and allows the opposition an opportunity to attack government policy and to raise its own issues.

    Referendum.

    There are two kinds of referenda: obligatory and optional. In many areas certain proposals must be put on the ballot for public approval. For example, when a school district wants to issue bonds for building construction, it goes to the voters with an obligatory referendum.

    Under the optional referendum, a specified number of voters may, by petition, demand a popular vote on a law passed by the legislature (a process similar to the initiative). By this means, an act of the legislature can be overturned in a kind of popular veto.

    There is another kind of referendum, called the plebiscite (from a Latin term meaning “decree of the people”), whereby questions or issues are submitted to the vote of the people. Depending on the nature of the particular plebiscite, the result may be binding or it may be only advisory.

    Veto

    The word veto comes from the Latin word meaning “I forbid.” A veto is the right of an executive to forbid or withhold assent to acts passed by a lawmaking body.

    In the United Kingdom the Crown (the king or queen) still has the nominal right of absolute veto, but no British sovereign has vetoed an act of Parliament since 1707. Long after the veto had fallen into disuse in England, however, the king still exercised it to nullify legislation passed in the American Colonies. The colonial leaders so deeply resented this use of the veto that they listed it as the first of their protests in the Declaration of Independence, saying of the king: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.”

    King John and Magna Carta

    In 1199 Richard I was succeeded by his brother John, the most despicable of English kings. By a series of blunders John lost almost all his French possessions except the southwest corner. The English barons refused to help him regain his territory. Angered by his tyrannical rule, they drew up a list of things that even a king might not do. On June 15, 1215, they forced him to set his seal to this Great Charter (in Latin, Magna Carta) of English liberties.

    Magna Carta is regarded as one of the most notable documents in history. The rights it listed were, in the main, feudal rights of justice and property that had been recognized by previous kings; but now for the first time these rights were insisted upon against the king’s will. Thus an important principle was established—that the king himself must govern according to law. In later years, whenever a king over-extended his powers, the people could remind him of Magna Carta.

    The Glorious Revolution of 1688

    Charles II died in 1685, and his brother, James II, stepped quietly to the throne. However, when a male heir to James was born, in 1688, Tory and Whig leaders joined together and decided to set aside the Catholic line of kings. They invited Mary, a daughter of James, and her Dutch husband, William of Orange, to occupy the throne as joint sovereigns. When William arrived from Holland, James fled to the continent.

    Parliament was careful to lay down conditions for the new sovereigns. William and Mary accepted its Declaration of Rights, and Parliament speedily enacted it into law as the famous Bill of Rights. The Act made the king responsible to Parliament and subject to the laws and provided that henceforth no Roman Catholic could wear England’s crown. Parliament, and not inheritance or divine right, would determine the succession to the throne. This was the fruit of the so-called Glorious Revolution—a revolution without bloodshed. John Locke published a defense of the Revolution in which he proclaimed the supremacy of the legislative assembly as the voice of the people.

    John Locke

    John Locke (1632–1704) is remembered today largely as a political philosopher. He preached the doctrine that men naturally possess certain large rights, the chief being life, liberty, and property. Rulers, he said, derived their power only from the consent of the people. He thought that government should be like a contract between the rulers and his subjects: The people give up certain of their rights in return for just rule, and the ruler should hold his power only so long as he uses it justly. These ideas had a tremendous effect on all future political thinking. The American Declaration of Independence clearly reflects Locke’s teachings.

    Reference: Encyclopaedia Britannica 2008 Ultimate Reference Suite

    Closing comment

    Parliament derives its power only from the consent of the people. The Crown cannot dissolve Parliament without the consent of Parliament, and Parliament consists of elected representatives of the people. That is, when Parliament consents to dissolving Parliament it is actually the people consenting to dissolving Parliament.

    Throughout many debates, and not just on the European Union, the people have very clearly expressed their non-confidence in the Government and Politicians elected into office. The reasons for such non-confidence are numerous.

    Depriving the people of Referendum on European Union is a violation of Government’s mandate. The act does not possess the consent of the people, and every Member of Parliament who voted against a Referendum on European Union violated the trust of the people by denying them the right to a vote on a matter that may have serious consequences for the people they were elected to represent.

    The Prime Minister is reminded that the people are not requesting a Referendum on European Union, they demand it, as is their right. Should he fail to concede to the demands of the people, the people will petition the queen to dissolve Parliament and force an early election.

    End of Postings.

    [Phoenix One UK (Grey Sector: Section 5)]

  2. Not sure that primary legislation would be quite as fraught with political difficulty as suggested if it were confined to requiring Ministers to make any notification under Art 50 by Ministerial Order (or Order in Council), exercisable by Statutory Instrument in the normal manner. This would replace the exercise of prerogative powers with a formal procedure subject to parliamentary scrutiny.

  3. Pingback: What role will parliament have in triggering Article 50 and shaping the terms of Brexit? – Britain & Europe

  4. Pingback: What does ‘Brexit means Brexit’ mean (if anything)? | The Constitution Unit Blog

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