Three constitutional lawyers – Nick Barber, Tom Hickman and Jeff King – have written an important analysis of the legal considerations around any decision by the UK to invoke Article 50 of the Lisbon Treaty and thereby begin the process of leaving the UK.
My concern in writing this is that MPs may be so engrossed in the leadership battles convulsing the two main parties that they may not be taking the time to become fully conversant with their responsibilities in the decision. David Cameron and plenty of our European partners are talking as if invoking Article 50 is simply a formality and all that’s at issue is the timing. In fact, it is MPs who have the ultimate say, and they should not blindly concede the ground to the Prime Minister – whether David Cameron or his successor
A key provision of Article 50 is that a member state may withdraw from the European Union “in accordance with its own constitutional requirements”. Barber, Hickman and King argue that in the context of Britain’s constitutional requirements, this means that Parliament must authorise any decision to invoke Article 50:
“Far from being a straightforward and streamlined process of exit, the Article 50 process raises very complicated legal and political issues and is pregnant with risk (additional to those inherent in existing outside the EU). These complexities are compounded by the murky ambiguities of our unwritten constitution.
“The referendum result itself does not speak to the question of how the UK should leave the EU. It is up to the Government and to Parliament to ensure that the exit is managed consistently with the UK’s national interest.
“Our analysis leads to the possibility that the process of extraction from the EU could be a very long one indeed, potentially even taking many years to come about. Of course, the EU Member States have made clear that they will only negotiate once the Article 50 exit provisions have been triggered and are pressing the UK to pull the trigger “as soon as possible”. It is also clear that uncertainty is itself undesirable. But uncertainty needs to be weighed against other imperatives, such as the need to comply with the UK’s constitutional requirements and the need to ensure that Brexit is effected consistently with the national interest. A quick pull of the Article 50 trigger is unlikely to be feasible under the UK’s constitutional arrangements and may well not be desirable for any UK Government or Parliament, even one committed to eventual withdrawal from the EU.
“Brexit is the most important decision that has faced the United Kingdom in a generation and it has massive constitutional and economic ramifications. In our constitution, Parliament gets to make this decision, not the Prime Minister.”
The piece is quite detailed but readable and I recommend that you consult it in full.
I’m aware that others, including the respected legal blogger David Allen Green, take a slighly broader view of the constitutional requirements. But the point is as much political as constitutional; or rather, MPs are at risk of letting the constitution slip through their hands. In the House of Commons yesterday, they seemed too complicit with David Cameron’s framing of where we are. They need to be much more assertive of their right to make the decision – and that means challenging the narrative put out by Cameron, Jean-Claude Juncker and others that it is simply for the Prime Minister (whoever that may be) to act (presumably under Royal Prerogative).
Whether or not one accepts the argument that the referendum has created a mandate to leave the EU, it has not created any kind of mandate for the terms on which this should happen. There is so much complexity and uncertainty that MPs should not be rushed into accepting a fait accomplit but must make sure that they are fully and appropriately involved in determining what is best for the national interest.
With some honourable exceptions – such as David Lammy and Nick Clegg – MPs are asleep at the wheel. We can’t assume that they know what to do or even understand their role. Nr can we allow them to wait until their leadership vacuums are resolved. Party considerations are admittedly important. But our representatives need to step up in the national interest to exercise their epoch-defining constitutional duty. Otherwise there’s a real and present danger that our country’s future will be deferred to a clueless and narcissistic menace.
I’ve written to my MP urging her to ensure that she and her colleagues are properly informed about their rights and responsibilities. I suggest you write to yours. Taking inspiration from the collaboration between Jo Cox and Andrew Mitchell on Syria, they should work with reasonable-minded colleagues on either side of the House to insert themselves into the difficult decisions ahead. That’s what Parliamentary sovereignty means.
Image courtesy Phil Dolby.