Constitutional Law Group June 30, 2016 European Union, UK government, UK Parliament

Note from the Editors

Readers may wish to know that Prof. Mark Elliot has published an excellent and comprehensive argument about why Parliament’s approval is not required to trigger Article 50 TEU. It replies to the widely circulated UKCL Blog pieces by Nick Barber, Tom Hickman and Jeff King, as well as to that by Adam Tucker, on this same question. We have paused re-postings during the post-referendum period due to a backlog of new posts.

On why, as a matter of law, triggering Article 50 does not require Parliament to legislate

The Editors

3Comments

Add yours

1

Carol Harlow on June 30, 2016 at 7:08 pm
Reply

I am sure Mark’s argument is both excellent and comprehensive as similarly are Barber/Hickman/King, Besselink, Tucker and probably Tomkins. But could it please be the last word? We are at a moment of paradigm change and I would like to see all these brainy people operating as futuroligists rather than technicians. CH
2

Mike Fearon on July 1, 2016 at 12:47 am
Reply

I agree that this is an excellent and comprehensive article. However, the conclusion that the referendum should not be a substitution for the rôle of Parliament is not a valid argument for the PM to refrain from giving notice, under Article 50, of the intention of the U.K. to leave the EU. The notice is a notice of intention. There is ample scope for Parliamentary involvement in the necessary process of repealing or amending UK law, including the 1972 Act, after that notice is given.

The involvement of Parliament in that process could frustrate or change the notified intention, particularly if the Government is unable or unwilling to obtain Parliamentary approval for necessary legislative measures. In that case it appears to be open to the UK government to notify the EU that it no longer has the same intention. This puts the horse and the cart in the right order. The government, having expressed its intention to comply with the expressed preference of the majority voting in the referendum, acts in accordance with its expressed intention. Parliament, if it is brave enough, can refuse to implement that preference.
3

Philip Hall on July 3, 2016 at 7:10 am
Reply

First, I am not a U.K. constitutional lawyer; I am an American lawyer qualified to practice in the State of Illinois. But I have nonetheless been fascinated by the various posts here concerning the U.K.’s ability to abrogate international treaty obligations in accordance with its constitutional conventions, customs and traditions on the basis of non-binding referendums authorized pursuant to a Parliamentary Act which contained no provisions regarding implementation. I am particularly concerned about the U.K.’s purported solemn commitments under the North Atlantic Treaty Alliance, which has been the bedrock of world security since WWII and which grew out of the supposed “special relationship” between the U.S. and the U.K. that developed then and has been ongoing for decades since.

Following last Thursday’s referendum, there have been numerous statements by the current U.K. PM, the Foreign Secretary, the U.K. Ambassador and various NATO personnel that the U.K.’s membership in NATO is not threatened and these statements have been heartening. Notwithstanding that, however, the discussion here and especially the arguments that the U.K., through the use of the “Royal Prerogative,” could initiate the termination of Treaty commitments to the EU and EU Member States merely upon the decision of and a subsequent statement by a PM, causes concern. The NATO Treaty contains virtually identical language as the Treaty of Lisbon, that is, that NATO members’ obligations must be conducted via their “constitutional provisions.” If I understand correctly the position of some lawyers here, a PM would similarly have the authority, through the use of the Prerogative and absent any parliamentary action, to terminate the U.K.’s NATO commitments. And unlike the Treaty of Lisbon, there doesn’t appear to be a time-frame built in, that is, the PM could presumably decide tomorrow that NATO is useless, give notice immediately per the Prerogative, and that would be that.

In the early 1960’s, President De Gaulle of France, took such a decision and unilaterally withdrew French troops and other personnel from NATO command although France remained a “member” of NATO. During the Cuban Missile Crisis and thereafter, there were a series of side agreements whereby France committed to re-integrate some of its forces into the NATO command structure upon the occurrence of certain events, but the NATO bases and headquarters had to be re-located because of the reality of France’s non-involvement.

If the PM can just give Article 50 Notice to the EU without Parliamentary involvement, with no hearings, with no testimony and with no vote, is it the case that a PM can do the same to NATO? Has Parliamentary Democracy with respect to the U.K.’s NATO obligations been obliterated? If this is the case, what is the ratification process of supposedly solemn Treaties entered into the U.K. worth? Can a PM similarly pull out of the IMF? The IBRD? The UN? In the U.S, these obligations are governed by the Bretton Woods Agreements Acts, the NATO Authorization Act, the United Nations Act and more and, regardless of how powerful any President might think he or she is or how powerful the international community may believe a President is, it would take Congressional action to abrogate these commitments.

Is the U.K. different? Of what value is the U.K.’s Parliament’s word if statutes and treaties be terminated merely upon the say-so of the PM of the day? Especially if that PM has never even faced a general eIection? I would appreciate serious responses; especially from those who are advocating that a PM, on the basis of the Prerogative, can do anything they want.