Last night (13 March) Parliament passed the European Union (Notification of Withdrawal) Bill (the Bill) giving the government power to formally begin the Brexit process by notifying the European Council of the UK's intention to leave the EU.

The Bill passed unamended, despite attempts by the House of Lords to insert provisions which sought to secure the rights of EU nationals living in the UK and a 'meaningful' vote for Parliament before any final deal with the EU is concluded.

So, why does Parliament appear to be struggling to craft itself a role in these negotiations and would the second amendment have been effective in securing the oversight it seeks?

Background to the Bill

In January this year, the Supreme Court issued its judgment in the cases of Miller and Santos v Secretary of State for Exiting the European Union and the Northern Irish cases of McCord and Agnew, which we have discussed in a previous alert.

Despite opposition from the government, the Supreme Court held that the UK's constitutional arrangements meant that the government could not use its prerogative powers to issue a notice under Article 50(2) and so to begin the Brexit process. Rather, the Supreme Court held that an Act of Parliament was required. This was because all parties to the litigation agreed that, once commenced, the Article 50 process could not be halted and a notification would therefore inevitably lead to changes to UK domestic law and the rights of UK citizens.

Following the judgment, the government introduced a two-clause Bill which, in the simplest terms possible, granted the Prime Minister the power to issue a notice under Article 50(2).

The Bill passed the House of Commons with no amendments, but two amendments were made by the Lords. The first required the government to publish proposals, within three months of giving the notification, to protect the rights of EU nationals living in the UK. The second required Parliament to approve the outcome of negotiations with the EU, both in relation to the withdrawal agreement negotiated under Article 50 and the free trade deal that will govern the UK's future relationship with the EU. The second amendment also required Parliamentary approval for any decision to leave the EU without any deal.

It is this second amendment on which we will focus below.

The government's position

Both amendments were rejected when the Bill returned to the House of Commons and the Lords did not seek to press the point.

The reason given in the official paperwork that was passed back to the Lords was that neither of these were matters that needed to be dealt with in the Bill. During the Commons debate on the amendments, the Secretary of State for Exiting the EU stated that enshrining a Parliamentary vote in the Bill was inappropriate for two reasons:

  1. Promises, promises The first was that it was unnecessary as the government had already given a commitment to bring forward a motion on the final agreement to be approved by both Houses of Parliament prior to any vote to approve the agreement by the European Parliament. In the face of queries from MPs as to why the government should be trusted to deliver on the promised vote, Mr Davis stated 'when a Minister gives an undertaking at this Dispatch Box in this House, it is binding on the Government. Understand that point?' Labour's shadow Brexit Secretary, Sir Kier Starmer QC - an experienced public lawyer - did not. He noted that an undertaking from a minister at the despatch box is not legally binding. That is correct - the courts treat assurances such as the one given by the Secretary of State as existing only in the political sphere and having no legal status. For example, in Caroline Lucas MP v Security Service, the Investigatory Powers Tribunal held that a promise made in 1966 by then Prime Minister Harold Wilson that the security services would not tap MPs' phone communications was a 'political statement' made in a political context which was never intended to be the ground of legal rights and on which there could be no reliance in law. In an EU context, the High Court in R (on the application of Wheeler) v Office of the Prime Minister held that a promise to hold a referendum on the Lisbon Treaty did not create an enforceable expectation in public law. The fact that the claim would involve an interference by the court with the proceedings of Parliament was a 'decisive reason' why it should fail. These two cases are examples of a long line of authority in which the Administrative Court has refused to pass judgement on decisions which fall squarely within the political realm, particularly with respect to decisions of a macro-political nature. Mr Davis' first reason for resisting the amendment is therefore not a good one - his undertaking to give Parliament a vote is not binding, except at the vaguest political level.
  2. The freedom to walk away The second reason given by the Secretary of State was that the amendment went beyond the government's undertaking by requiring Parliament to approve a decision to leave the EU with no deal in place. In doing so he argued that it restricted the government's ability to walk away in the face of a bad deal. He also noted that Lord Pannick QC - lead lawyer for the claimants in Miller and Santos and one of the authors of the amendment - had admitted during the debate in the Lords that he did not know what would happen if Parliament refused to approve a decision to walk away without a deal. In his remarks, Mr Davis chose not to focus on whether it would be possible to go back to the EU to secure a better deal. He focused instead on whether it meant that the UK would seek to remain in the EU, thus failing to give effect to the will of the people as expressed in the referendum last June. That focus is interesting given the government's position in Miller and Santos that, once commenced, the Article 50 process could not be stopped - indeed it was the inevitability of that process reaching its conclusion that led the Supreme Court to hold that legislation was necessary to commence it. His reason for resisting the amendment yesterday evening seemed to suggest that the process could be halted, and that the possibility of a bad deal followed by a vote by Parliament to remain in the EU could incentivise the other member states to offer the worst possible terms. It is surprising that the government has yet to come to a definitive position on the point, given its potential effect on the dynamic of the negotiations. Others may do so in its stead, however, as proceedings have commenced in the High Court in Dublin which seek a reference to the Court of Justice of the EU for a preliminary opinion on whether the withdrawal process can be halted once commenced. A hearing on whether to make that reference is due to take place in April and the claimants - who include a London QC and some unnamed UK MPs - hope that any reference will be decided by Court of Justice of the European Union (CJEU) within three months.

Struggling to find its role

At present, the government seems to consider that leaving the EU will require three separate agreements. The first is a withdrawal agreement under Article 50 as to the terms of our exit. This is the 'divorce settlement' which will cover issues such as the UK's liability with respect to the financial commitments it has made. The second is the free trade agreement which will cover the UK's future trading relationship with the EU and which may include some form of customs agreement. The third is an agreement as to the transitional arrangements through which the terms of the free trade agreement will be phased in.

Both the government and the opposition are of the view that all three of these agreements will be negotiated in parallel during the two year window granted by Article 50. The Lords' amendment was drafted on this basis as it referred to the prior approval of Parliament in relation to any decision 'to leave the European Union without an agreement as to the applicable terms'.

However, many in the EU wish our future trading relationship to be negotiated after we leave (and once we have settled our tab) and it has been suggested that it simply will not be possible to negotiate a free trade agreement within two years. The terms of our future trading relationship may therefore not be clear until after we have already left. That scenario would render the requirement for Parliamentary approval - as contained in the proposed amendment - ineffective and, indeed, meaningless, save to the extent that it served as a mandate to attempt to negotiate a better deal.

The Supreme Court decision in Miller and Santos gave Parliament the opportunity to create a meaningful role for itself in the withdrawal process once Article 50 has been triggered. However, in its debates around the Bill, we have seen Parliament struggling to shape that role within the confines imposed by the Article 50 process, confusion over what will be negotiated and in what order, and in the face of a government which has sought to paint attempts to ensure Parliamentary oversight as going against the result of the referendum.

That struggle was illustrated by the terms of the Lords' proposed amendment which, if passed, may not have provided the oversight which it sought.

It seems that the government will seek to trigger Article 50 in the last week of March, having pushed back the date partly in response to Nicola Sturgeon's announcement that she will seek a second referendum on Scottish independence in the autumn of 2018. After that, things will happen relatively fast, given Parliamentary recesses, and it will be important for MPs to keep well informed of developments and, in the absence of legal mechanisms, to use Parliamentary levers to best effect to hold the government to account during the negotiations.