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Parliament must still legislate on final Brexit deal, QCs claim

17 February 2017

Parliament retains the ultimate say on whether the UK leaves the European Union even after the Prime Minister gives formal notice under article 50, according to five legal experts including a former UK judge at the EU Court of Justice.

A legal opinion sent to peers about to debate the European Union (Notification of Withdrawal) Bill maintains that although the bill will allow the Prime Minister to notify the UK’s intention to leave the EU and to start the article 50 process, actual withdrawal from the EU will need to be authorised by Parliament in a future Act, once the outcome of the negotiations, and the impact on individual and business rights, is known.

Although the litigation taken to the Supreme Court, over whether the article 50 notice could be given without authorising legislation, was argued on the basis that once notice was given it could not be withdrawn, the opinion maintains that the UK’s “constitutional arrangements” for article 50 purposes mean that notification will effectively be conditional on Parliament subsequently authorising the UK’s exit from the EU. Further, under EU law, there are “very strong arguments” that, if Parliament decided to reject the available terms two years from now, the notification could be unilaterally revoked by the UK.

The five signatories to the opinion are Sir David Edward QC, former judge at the Court of Session and the European Court of Justice; Sir Francis Jacobs QC, former Advocate General at the European Court of Justice; Sir Jeremy Lever QC (retired), knighted in 2003 for services to European law, and the QCs who acted for the People’s Challenge Group in the article 50 litigation, Helen Mountfield QC and Gerry Facenna QC. It was commissioned by John Halford of Bindmans LLP, solicitors for the People’s Challenge.

The opinion recommends that Parliament amend the present bill to provide clarity and legal certainty over the constitutional position, but concludes that a further Act approving Brexit will be needed even if that does not happen. It draws attention to the real risk of no agreement being reached within the two year article 50 negotiating period, and the constitutional requirement in those circumstances for ministers to seek legislative consent from Parliament for the UK leaving the EU in the absence of a withdrawal agreement.

Express authorisation is needed, it states, "because it is only Parliament that can give legal effect to the removal or conferral of individual rights that necessarily follow from that decision” (to withdraw on agreed terms, or without agreement). “Meaningful parliamentary decision-making cannot be achieved by Parliament authorising exit from the European Union, two years in advance, on as yet unknown terms.”

The Government's undertaking that the terms of any deal will be the subject of a parliamentary vote “before it comes into force” falls short of the UK’s constitutional requirements: “Given the fundamental changes in the law and legal rights that will result, such authorisation must take the form of primary legislation. Parliamentary resolutions, without legislation, cannot change domestic law, nor amend or abrogate existing rights”.

Regarding the present bill, it is "legally inadequate" to authorise withdrawal because it "only authorises the Prime Minister to notify the United Kingdom’s intention to withdraw from the European Union. It cannot serve as the legislative basis for the United Kingdom’s withdrawal from the European Union without it being read as an exceptionally wide enabling law, handing to the Executive power to decide which legal rights may be given away or lost through negotiations with the European Union, or by leaving the European Union without an agreement. No such intention is expressed on the face of the bill and we doubt that the courts would interpret the Bill in that way”.

Arguments that article 50 notice can be wthdrawn unilaterally, or by mutual agreement, are based on the text and the purpose of the article – a provision for dealing with voluntary withdrawal from the EU – and on the principle that "it would be inconsistent with the fundamental principles and aims of the European Union for a member state to be expelled against its will (at least in the absence of some gross violation of the European Union’s fundamental norms). Where a member state has legitimately reconsidered its decision to withdraw, its forced expulsion would be contrary, at least, to the principle of solidarity and the fundamental European Union citizenship rights and status of nationals of that member state who, until departure of the member state, are also citizens of the European Union".

Click here to view the opinion.

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