Whatever courts say, Parliament should decide on Article 50

by Sam Ashworth-Hayes | 20.07.2016

Judges will decide whether the prime minister can trigger formal divorce proceedings – or whether parliamentary approval is needs. Either way, MPs’ scrutiny is likely to lead to a better Brexit deal.

The good thing is that Theresa May is not going to truncate the courts’ decisions. Lawyers acting for the government have told the High Court that Theresa May does not intend to begin the process of withdrawing from the EU “before the end of 2016”. That will give time for a hearing in the High Court in October followed, if needed, by a hearing in the Supreme Court.

At least seven actions have been brought arguing that the power to trigger Article 50 of the EU Treaty actually lies with Parliament. David Pannick QC, working on the lead case, has previously laid out his views on this matter in The Times. Any nation activating this mechanism must do so “in line with its own constitutional requirements”.

In the UK, EU law has effect through the 1972 European Communities Act providing for the UK’s membership of the EU. There is also a “constitutional requirement” that alterations to legislation can only occur through another act of parliament. Given that triggering article 50 would effectively make the 1972 act “a dead letter”, parliamentary approval is needed.

Whether or not the courts agree with this argument, giving Parliament a handbrake on any notification could have beneficial effects. Invoking Article 50 will set a two-year countdown running, and unless all parties agree to an extension the UK will be out in the cold once this period ends.

The tightness of this timeframe means that beginning the process without knowing exactly what we want from any negotiations could have dire consequences, with pressure ramping up to do a quick deal, rather than a good deal.

If the power to trigger Article 50 lies with Parliament, it will be able to ensure that we have a coherent, realistic package of goals – and the negotiating staff to achieve them – before any negotiations begin.

This is particularly important given that the referendum left large questions unanswered. Leaving under the Norwegian model with free movement of people and full access to the single market is very different to leaving and trading under World Trade Organisation rules with neither of these things, but both would be acceptable within the framework of the referendum result.

If Parliament decides when and if Article 50 is triggered, it will be better placed to ensure that the voices of all Britons – including the 48% who voted to stay – are heard when these decisions are made.

Edited by Hugo Dixon