Act of Parliament needed for article 50 Brexit notice, academics argue
The United Kingdom cannot begin the formal process of withdrawing from the European Union without the authority of an Act of Parliament, according to a new blog by a trio of academics.
Writing on the UK Constitutional Law Association website, Nick Barber of Trinity College Oxford, and Tom Hickman and Jeff King of University College London, argue that any attempt by Prime Minister David Cameron (or his successor) to issue a declaration under article 50 of the Lisbon Treaty – the procedure which it is agreed the UK Government would in practice have to follow in order to give effect to the referendum vote to leave the EU – would otherwise have no effect.
"Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of article 50 itself", their post argues.
In essence, the argument is that notice would be given using the prerogative powers, the executive powers held by the Crown and now largely exercised by the Government. These however cannot be exercised so as to take away rights conferred by Act of Parliament, and with the EU, for which the UK's membership was authorised by the European Communities Act 1972, "we are concerned with a constitutional statute upon which an extensive system of rights is founded".
Discussing the effect of the Act, they continue: "Our membership of the European Union has conferred a host of legal rights on British citizens, some through incorporating statutes, some granted directly in domestic law. Applying the common law principle found in The Case of Proclamations [1610] and Fire Brigades Union [1995], the Government cannot remove or nullify these rights without parliamentary approval. Its prerogative power cannot be used to overturn statutory rights. Statute beats prerogative."
And if it was against UK domestic law, it would also be against EU law: "Article 50 specifies that a decision to leave the European Union must be made in conformity to a member state’s constitutional requirements. If the Prime Minister sought to issue an article 50 without parliamentary approval, it would not satisfy this test; it would not be effective in European law."
If Parliament wanted to know in advance what the terms of withdrawal would be, it might require the Government to engage in extensive informal negotiations first. (However, EU leaders are now saying that they will not conduct such talks.)
"Far from being a straightforward and streamlined process of exit," the authors conclude, "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."