Following the close victory of the "Leave" campaign in the referendum held on 23 June 2016, attention has turned as to how and when the UK's new Prime Minister, Theresa May, will initiate negotiations with other EU Member States pursuant to Article 50 of the Treaty of the European Union (“Article 50”). There is uncertainty as to whether Article 50 can be triggered without an Act of Parliament. This has sparked a critical political and legal debate, which will be the subject of judicial review before the courts, including quite probably the UK Supreme Court, by the end of the year.

The two sides of the Article 50 debate

Article 50 allows a Member State to withdraw from the EU “in accordance with its own constitutional requirements”. It is specified that the process can only be initiated by the Member State and that a formal communication to the EU institutions must be given in order for the process to be commenced.  There is however uncertainty as to the precise process that should be followed by the Government before initiating the negotiations if Brexit is to be legally implemented and enforceable and, in particular, whether an Act of Parliament is required. If an Act of Parliament is required then there must be a vote, which means there is a theoretical possibility at least of MPs (the majority of whom were in favour of remaining in the EU before the referendum) voting not to trigger the negotiations.

The view of the Government appears to be that the implementation of an Act of Parliament would be unnecessary on the basis that the Prime Minister is entitled to start the Article 50 process under her prerogative powers without seeking Parliament's consent given that her power extends to the conduct of foreign affairs and the negotiation of treaties.  On 11 July 2016, the Minister for Constitutional Reform, John Penrose, responded to an urgent question on whether the Government will seek Parliamentary approval before triggering Article 50 by stating that democratic principles should outrank legal formalities and that the Prime Minister has powers under the royal prerogative to bypass Parliament.  This view is shared by Richard Gordon QC who, at a panel discussion at Inner Temple on 21 July 2016, stated that the key principle in this debate is not a legal or constitutional one but instead a political one.  If the Government do not deliver what the electorate voted for then there will be "civil war", and a vote in Parliament to trigger Article 50 cannot guarantee what politics must deliver.

In contrast, there is a significant body of opinion suggesting that in order to leave the EU, the UK must follow the same mechanism it used when entering it. The European Communities Act 1972 states that any major changes to the rights arising under treaties must be authorised by Parliament. Under the constitutional principle of legality, it is only Parliament which can modify existing domestic rights by enacting primary legislation, and the consequence of triggering Article 50 is that domestic rights will inevitably be modified because Article 50 unavoidably results in the UK leaving the EU after two years (or longer if agreed).  The UK must therefore invoke an Act of Parliament to give effect to the EU referendum result, so the argument goes. This is the view of Lord Pannick QC, for example. Some see this as a real chance for Parliament to block the withdrawal from the EU. Whereas others, such as Dominic Grieve QC MP, the former Attorney General, seem to consider a vote more of a formality. Mr. Grieve stated, at the same discussion at Inner Temple, that Parliament must vote to trigger Article 50, but did admit that it would be "an act of political insanity" if the Government do not set out to do what the electorate have voted for.

The House of Lords published a library note on 4 July 2016 on what Parliament's role would be in the process of leaving the EU in various key areas, namely (i) invoking Article 50, (ii) overseeing the negotiation process, (iii) ratifying agreements, and (iv) repealing and reviewing domestic legislation.  The notes contains a very useful summary of the arguments on the various sides of the debate as to whether Parliament's consent is needed to invoke Article 50, without giving a view as to whether it is or not. What is clearer though is that Parliament will have some role to play in the various other aspects of withdrawing from the EU as set out at (ii)-(iv). You can read the full House of Lords library note here: http://researchbriefings.files.parliament.uk/documents/LLN-2016-0034/LLN-2016-0034.pdf

Judicial Review

Several judicial review claims have now been issued challenging the Government's power to trigger Article 50 without an Act of Parliament on the basis that without proper parliamentary scrutiny and approval the article 50 notification would be unlawful.

On 19 July 2016 Sir Brian Leveson, President of the Queen’s Bench Division, and Mr Justice Cranston gave directions for the claims to be joined and to be heard before a Divisional Court which will be presided over by Lord Chief Justice Thomas on 15 October 2016, with arrangements being made for a possible “leapfrog” appeal to the Supreme Court by December 2016. The lead claimant will be a London hairdresser named Deir Dos Santos, whose counsel described him in court as an “ordinary guy” who just wants things done in a “proper manner”. A group of businesses and individuals have also brought a challenge and they will be represented by Lord Pannick QC.

David Davis MP, the minister in charge of Brexit, has indicated that the UK should be able to formally trigger the UK’s departure from the EU "before or by the start of next year". This timeframe should permit a decision from the Supreme Court which will hopefully provide the necessary clarity about what is required in order for Brexit to be implemented in accordance with constitutional requirements, as well as the time the Prime Minister says is needed to consider the UK’s negotiating position.

However, if the Courts determine that the approval of Parliament is required to give notification under Article 50, it remains to be seen how long that process would take. It is also likely that any delay would be used by some to try to reverse the result. Conservative peer Baroness Wheatcroft has said that if a bill comes before the Lords on Article 50 , the Lords might delay the Article 50 process, given that  there is a majority in the Lords who want to remain in the EU. She also stated that she hoped that the delay would allow for either a general election or a second referendum. If one thing is clear, it is that Brexit will not stop being a topic of debate and will not leave the front pages for some time to come. 

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In the blur of mega firms, Brown Rudnick stands out as a “global boutique” and has in place a multi-disciplinary, international Brexit Team. We are monitoring and analysing the consequences and considerations for businesses and are ready to advise on the potential legal implications of Brexit. The Brown Rudnick Brexit Team is available to advise on the issues across a broad range of sectors within our areas of expertise. If you have any questions please call your usual contact at Brown Rudnick or one of the following partners:


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