Bryan Cave head of EU & UK competition Robert Bell walks us through the UK Government's 'Brexit Bill' and its implications.
The UK Supreme Court, in its most important and far reaching judgment to date, held last week (24th January) that the UK Government has to seek the approval of the UK Parliament before issuing an Article 50 notice to begin the process of leaving the European Union.
In response to this ruling the Government has already introduced a Bill to Parliament. The signs are that a rough ride may be in store with Opposition parties tabling over 30 pages of amendments as they seek to force Government accountability to Parliament over the conduct of the Brexit negotiations. But with Opposition parties fragmented and divided, the Government’s robust timetable of triggering Article 50 by the end of March looks attainable. However given the highly contentious history of this matter there may yet be more surprises in store.
The Supreme Court judgment
In its eagerly awaited judgment in the Miller case - R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) the Supreme Court ruled on Tuesday 24th January 2017 in a majority decision (8 vs 3), that an Act of Parliament must be passed in order for the UK to serve an Article 50 notice under the Treaty of the European Union (“the Treaty”) effectively repealing certain EU rights enjoyed by UK citizens under the European Communities Act 1972 (“the 1972 Act”), an Act which implemented the provisions of EU law into domestic law.
The Supreme Court also dealt with the contentions of the devolved administrations in Scotland, Wales and Northern Ireland that they had a right to be consulted and feed into the decision to serve an Article 50 notice. The Court categorically dashed their hopes by finding unanimously that whilst an Act of Parliament would be required for the UK to withdraw from the EU, there was no constitutional requirement to seek the consent of the devolved Administrations. They would instead be bound solely by the UK Parliament’s decisions on this issue.
Form of the legislation
The Supreme Court’s Decision affirms the English High Court’s judgment at first instance that a Parliamentary vote was required for the UK Government to trigger Article 50. However the Court below failed to give any detailed guidance as to what form that Parliamentary approval should take. In addressing this question the Supreme Court confirmed that the Government had to pass an Act of Parliament before it could give notice under Article 50. However the Court held that the form of the legislation needed was a matter for Parliament alone noting that Parliament may decide upon a very brief statute.
European Union Notification of Withdrawal Bill
The European Union (Notification of Withdrawal) Bill was introduced to the House of Commons on Thursday 26 January 2017.
The Bill is two paragraphs long. The first paragraph, and the operative part of the draft legislation, provides that the Prime Minister may notify under Article 50(2) of the Treaty of the European Union the UK’s intention to withdraw from the EU. The Bill then goes on in the second paragraph to clarify that the draft legislation has effect “despite any provision made by or under the European Communities Act 1972 or any other enactment”. This was added to clear up the legal tension between the provisions of the ECA 1972 which guarantee certain fundamental European law rights to UK citizens and the supremacy of EU law and the service of an irrevocable Article 50 notice, the inevitable consequence of which is to remove those rights.
Opposition parties have already tabled over 30 pages of amendments to the Bill to seek greater Government accountability to Parliament over the conduct of the Brexit negotiations.
Labour has demanded changes including giving Parliament a vote on the final Brexit deal before European leaders or MEPs consider it. The SNP, which now sees itself as the “official” opposition party to the Government over EU Withdrawal given the confused position of the Labour Party, has put down over 50 amendments. These include a "reset clause" that they assert would result in the UK staying in the EU if the Prime Minister cannot get agreement for her deal from other leaders at the European Council. Other members have called for the Bill to be amended to protect the residence status of European Union nationals living in the UK.
With very little time for debate allocated, not many of these Opposition amendments are likely to be selected for debate and few, if any, are expected to be carried.
The Government is confident on completing the Parliamentary passage of this Bill by early March thereby allowing the triggering Article 50 by the end of March.
Moments of theatrical politics are expected in the forthcoming debate. But with a fragmented and divided Opposition, these are unlikely to frustrate the passage of the Bill through Parliament. Nevertheless, as the history of this highly contentious matter shows, there may yet be more surprises in store before Theresa May, the UK Prime Minister, can finally sign off on that Article 50 letter to Donald Tusk the President of the European Council, sounding the starting gun on the UK’s Brexit negotiations
.Robert Bell is a partner at Bryan Cave LLP and head of the firm's EU & UK Compeition practice group.