European Union (Notification of Withdrawal) Bill: Report of House of Lords Constitution Committee

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The House of Lords Constitution Committee has published a report on the European Union (Notification of Withdrawal) Bill. The Bill, which is presently being considered by the House of Lords, was introduced into Parliament in the wake of the Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, in which it was held that legislation was needed before the initiation of the process whereby the UK will withdraw from the EU under Article 50 of the Treaty on European Union. The Bill, as presently drafted, authorises the Prime Minister to invoke Article 50.

In its report, the Committee draws particular attention to two constitutional issues raised by the Bill. First, the Committee notes that the Bill is being ‘fast-tracked’ through Parliament. In the Explanatory Notes to the Bill, the Government seeks to justify this approach in the following way:

The judgment of [the Supreme Court in Miller] required the Government to complete an additional (and unexpected) step before the formal process of leaving the European Union can commence. Completing this step through the normal Bill timetable would delay commencing the formal exit process, making it impossible to do so before the end of March 2017. In the government’s view, this would generate uncertainty as to the timetable for the United Kingdom’s exit from the European Union.

Against this background, the Committee observes that the decision to fast-track the Bill was ‘driven by a desire to ensure that the Prime Minister could fulfil her commitment to invoke Article 50 by the end of March 2017’. The Committee points out that

this date has no constitutional significance—it is a purely political deadline, announced by the Prime Minister in a speech at the Conservative Party Conference in October 2016. We would not normally accept an arbitrary political deadline as sufficient justification for fast-tracking a Bill.

Nevertheless, the Committee states that it recognises ‘the political imperatives’ behind the Bill, and considers that ‘concerns that might arise from the curtailment of full parliamentary scrutiny as a result of fast-tracking are mitigated, to a large extent, by the brevity and simplicity of the Bill’. It nevertheless emphasises that ‘fast-tracking a Bill of such constitutional significance is an exceptional procedure’ and cautions that this instance of fast-tracking ‘ought not to be used as a precedent in relation to future measures of constitutional significance, such as the “Great Repeal Bill”’.

The second matter highlighted by the Committee in its report concerns the question of devolved consent to the Bill. It notes that while in Miller the Supreme Court ‘found that relations with the EU are a reserved matter’ and concluded that it ‘was not for the courts to police [the] scope’ of the Sewel Convention, the Court did not determine, one way or the other, whether that Convention applies to what is now the European Union (Notification of Withdrawal) Bill. The Committee concludes that ‘[t]he question as to whether the legislative consent of the devolved institutions is required for this Bill is therefore a matter for the Government, Parliament and the devolved institutions to resolve’, albeit that the Government, in the Explanatory Notes to the Bill, has made plain its view that devolved consent is not required.

Finally, it is worth noting that the report of the Constitution Committee does not address the broader question of the extent of the legal effects of the Bill, such as whether the Bill invests the Government with constitutional authority only to initiate but not to conclude the Brexit process. In an opinion published last week, Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC, Helen Mountfield QC and Gerry Facenna QC argued that further legislation will be required because ‘Parliamentary sovereignty and the principle of legality require Parliament expressly to authorise withdrawal from the European Union on the terms agreed with the European Union’ — a step than can be taken only at the end of the Article 50 negotiation process. I argue in another post that the view advanced Sir David Edward et al is questionable, not least in the light of its apparent incompatibility with the Supreme Court’s judgment in Miller.

This post is written in a purely personal capacity.