The UK decision to withdraw from the EU: parliament or government?

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In light of the ongoing legal hearing on the triggering of Article 50, Piet Eeckhout, Professor of EU Law at UCL, examines Article 50 from an EU law perspective. He explores what the UK’s constitutional requirements for leaving the EU entail, noting that parliament has a role to play in any withdrawal decision.

The litigation concerning the triggering of Article 50 is underway. It is the constitutional case of the century. The government’s skeleton argument has been published. This reveals that one of the pillars of its defence is that the decision to withdraw from the EU has already been taken. Consequently, all that is in issue is the authority to notify the EU of that decision, and to start the two-year negotiation period provided for in Article 50. That, the government’s case goes, is a decision of high policy which is rightly in the government’s hands, and not in those of parliament.

In an excellent blog Mark Elliott and Alice Young dissect and critique this framing of the litigation. They point out that it is difficult to identify who took the momentous Brexit decision, given that the referendum was advisory and there is no formal government decision either – only political statements. Their critique is informed by UK constitutional authority.

In this blog I also want to focus on this question, but more from an external and EU law perspective. The theses I want to present are twofold. First, and at the expense of coming across as completely divorced from reality, I argue that there is as yet no Brexit decision. Second, if the principle of UK parliamentary sovereignty is to continue to have real meaning, the decision has to be taken by parliament, not the government.

Ever since the debate about the respective roles of parliament and government in the Brexit process gathered steam, there has been an excessive focus on the notification question: is it for the government to ‘trigger’ Article 50 by notifying the EU, or is it for parliament? This kind of framing of the debate overlooks the wording of Article 50. The first paragraph of that provision proclaims that ‘any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. The second paragraph states that ‘a Member State which decides to withdraw shall notify the European Council of its intention’. So first, there must be a constitutionally orthodox decision to withdraw. The notification is secondary.

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