Los Lores publican la hoja de ruta del Brexit

The Committee accepts that the referendum result is clear and therefore must be implemented, but it is also firmly of the view that Parliament must be involved: “The Government should not trigger Article 50 [TEU] without consulting Parliament.”

Turning to Article 50, the Committee accepts that the process it sets out offers the only “viable” route by which withdrawal can be effected. It then addresses whether a notification under this provision might later be revoked unilaterally by the United Kingdom. The Committee considers the legal position to be unclear but notes that, should any attempt to do so by the UK be disputed by another member state, the matter would be decided by the Court of Justice. On this basis, and given that the uncertainty would only ever be resolved after Article 50 had already been triggered, the Committee deems it prudent for Parliament to work on the assumption that the triggering of Article 50 is an action that the UK cannot unilaterally reverse.

Article 50 of course leaves discretion to any Member State to decide to withdraw from the Union “in accordance with its own constitutional requirements.” The Committee observes that neither the question put to the electorate nor the provisions of the European Union Referendum Act 2015 set out how or when withdrawal should take place. Accordingly, the focus of most of the report is upon the respective roles and responsibilities of both Government and Parliament in managing the withdrawal process.

The issues surrounding the triggering of Article 50, and the appropriate role for Parliament in this process, will of course be aired before the High Court in October. In those proceedings, it will be argued that triggering Article 50 will lead inevitably to the repeal of the European Communities Act 1972, thereby affecting citizens’ statutory rights incorporated thereby. These impending consequences, it is argued, prevent the UK Government from activating Article 50 by way of the royal prerogative, requiring instead statutory authorisation by Parliament. The Government, on the other hand, maintains that it can invoke Article 50 as an act of the prerogative, and that “there is no legal obligation to consult Parliament on triggering Article 50” (HL Deb, 18 July 2016, col 430 [Lords Chamber]). Since the issue is subject to live proceedings, the Committee opts not to express a view on the differing legal arguments. Instead it focuses upon whether, and if so how, it would be constitutionally appropriate for Parliament to be involved, irrespective of whether or not the courts decide that statutory authority for triggering Article 50 is a legal requirement.

To this end, Parliament should play a “central role” not only in the decision to trigger Article 50 but also during the negotiation process itself and at the point where the negotiated package is agreed and adopted. The Committee also anticipates that this role should continue, with parliamentary scrutiny of any ongoing relationship between the United Kingdom and the EU. Significantly, the Committee asserts that it is for Parliament itself to determine how it will be involved at each of these stages in the withdrawal process.

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