The UK’s House of Lords Select Committee on the Constitution has just published a report on Brexit “The invoking of Article 50“, which takes a detailed look at the roles that Government and Parliament should play in the triggering of the Article 50 mechanism, by which the UK will leave the EU.

Here are the headlines:

  • It’s for the Government to decide how the will of the people should be implemented;
  • Although some have argued that the UK could withdraw from the EU simply by repealing the European Communities Act 1972, in the Committee’s view, that would be unlawful: “Article 50 is the only viable route for the UK to withdraw from the European Union“;
  • It’s not clear whether an Article 50 notice, once given, can be unilaterally withdrawn. So, “Parliament [should] work on the assumption that … triggering … Article 50 is an action … the UK cannot unilaterally reverse“;
  • The Government argues that it can invoke Article 50 using the royal prerogative, without consulting Parliament first. Without expressing a view on the legal point, which will be decided by the High Court next month, in the Committee’s view, “It would be constitutionally inappropriate … for the Executive to act on an advisory referendum with explicit parliamentary approval“. In fact, “The Government should not trigger Article 50 without consulting Parliament“; “Parliament should play a central role in the decision to trigger the Article 50 process“; and an Act of Parliament, or a resolution of both Houses of Parliament would be “a constitutionally appropriate means” of achieving this outcome;
  • Article 50 should only be triggered when it’s in the UK’s best interests to begin the formal 2-year negotiation process. Some thought should therefore be given to whether any pre-conditions can and should be set, so that Article 50 can only be triggered when it’s in the UK’s best interests do trigger it.

It’s hard to see anything especially controversial in the first 3 of these bullet points – but that might be because they’re consistent with my own views on the law.

The 4th of these bullet points is much more difficult: there are good legal grounds for supposing that the Government is entitled to invoke Article 50 using the royal prerogative without consulting Parliament … and there are equally sound arguments going the other way. But that may be beside the point: the idea that Parliament “should play a central role in the decision to trigger … Article 50“, and that it might be appropriate to set preconditions that will have to be met before the Article 50 notice can be given, are likely to be very controversial – especially among those who argued for Brexit and now fear that Parliament – or some Parliamentarians – will try to stand in their way. It’s clear from the House of Lords’ Select Committee’s Report that it thinks “Brexit mean Brexit“, and that the Government should implement the will of the people as soon as it’s in the UK’s best interests to do so. But that principle has not been entirely and universally accepted; and reasonable people could reasonably disagree about when, or even whether, it will (ever) be in the UK’s best interest give notice to quit. More to follow …