This week, the Prime Minister, Theresa May, has unveiled her twelve-point plan for Brexit as March 31st, her self-imposed deadline for invoking Article 50, draws ever closer. Yet, constitutionally there may be two hurdles to clear before invoking Article 50. These hurdles are only “maybes” because it depends on the decision of the Supreme Court in Miller & Dos Santos v Secretary of State for Exiting the European Union. The Supreme Court has announced that judgment will be handed down on 24th January at 9:30 am.
This post considers the main point in the Miller case, that, for the Government to invoke Article 50, an Act of Parliament granting the Government the legal authority to do so is required. There are other points, including what has become known as the “devolution issue”, that consent of the devolved legislatures is required to invoke Article 50. Miller also has the potential to raise other profound points of constitutional law, but this depends on the approach that the Supreme Court decides to take.
THE HOUSE OF COMMONS
In my view, it is highly likely that the Supreme Court holds that an Act of Parliament is required for the government to invoke Article 50. The Government has already made clear that, if necessary, they will introduce a Bill into Parliament (called in this post the ‘Article 50 Bill’) soon after the Supreme Court’s decision. The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit.
Certainly, in the House of Commons, such parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process. When the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved the principle of Brexit. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against an Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that any Article 50 Bill will pass the Commons.
THE HOUSE OF LORDS
The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, which makes passing any legislation more difficult with the Government suffering defeats on amendments relatively frequently (for example on fifteen occasions since May 2016)
Constitutionally, their Lordships may be emboldened by the knowledge that any Article 50 Bill will now lead to the UK leaving the Single Market. This is because there is now a stronger argument that an Article 50 Bill does not benefit from the Salisbury Convention. This is a constitutional convention which means that any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate.
The issue is that the Salisbury Convention may not apply to an Article 50 Bill because the Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, and respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. From this, it is far from clear that the Government has a manifesto commitment to take the UK out of the Single Market. This may be enough for some peers to feel that they are constitutionally entitled to block any Article 50 Bill.
To take such a view would be to the exclusion of other broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block an Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.
oIt’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend an Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, placing at risk the important role that it plays in the legislative process as a ‘revising chamber’. This would all be a pyrrhic victory as the Government could prevail, in any event, through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.
AN EARLY GENERAL ELECTION?
A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.
BE CAREFUL WHAT YOU WISH FOR?
Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with an Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.