Brexit: Parliament gets the last word

24/10/2016

On the last day of the Judicial Review on Article 50, however, it was argued by Government lawyers that the final settlement would most likely have to be ratified by Parliament, although it was conceded that there "can't be a guarantee at this stage".

The point was raised because, if it is the case that Parliament also gets to vote on whether Article 50 is invoked, it gets two bites of the cherry. Thus, it should be sufficient to have one vote at the end of the negotiations, giving Parliament an effective veto on the Brexit settlement.

Parliament would rely for its right to vote on the Constitutional Reform and Governance Act 2010 (CRAG), and in particular Section 20.

The one degree of uncertainty rests with the text of the Article 50 settlement. Basically, under international law, treaties (and this would be a treaty) only require ratification if the parties to them agree that it is necessary. It is not an automatic provision. But if ratification is required, then Section 20 kicks in and Parliament has its place in the sun.

Although the likelihood of there being no requirement to ratify is slight – certainly according to Government lawyers – there is still that possibility. Thus, one might have thought there would be a reference to the other provision where there can be no dispute at all that Parliament will be involved.

Briefly mentioned in Booker yesterday, almost as a throwaway line, is the fact that, to regularise the UK's exit from the EU, a secession treaty will be needed.

Effectively the opposite of an accession treaty (an example here), this will have to perform the same tasks – such as adjusting the number of MEPs, the QMV weightings for the Council, the representation on the ECJ. All these require changes to the founding treaties and since the only way a treaty can be changed is with another treaty, there will have to be a treaty signed by all 27 member states, and the UK.

Further, under Article 49 of the TEU, an accession agreement must be ratified, it makes little sense for a secession treaty not to be treated in the same way. It is, therefore, almost inconceivable that there would be no ratification.

As to Parliament's involvement, I first thought that we relied not so much on CRAG as the European Union (Amendment) Act 2008 which made "provision in connection with the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, signed at Lisbon on 13th December 2007".

Tucked into this Act is Section 5 which states that amendment of founding treaties, under the aegis of Article 48 (TEU) "may not be ratified unless approved by Act of Parliament". Why this appeared to bite is hidden in the text of the accession treaties (for instance in Article 3(2) of the Croatian Accession Treaty), where it is acknowledged that the changes to the EU treaties rely on Article 48.

However, closer inspection of the EU Amendment Act shows that this only applies to the ordinary revision procedure whereas the accession treaties presumably rely on the simplified revision procedure. Thus, there does not need to be an Act of Parliament. Under CRAG, though, there has to be Parliamentary ratification, and that gives Parliament the opportunity for a vote.

Now it gets really interesting. If Parliament blocks this secession treaty, it seems possible – in theory at least – that this could stop us leaving the EU. The point here is that, although Article 50 states that, on completion of the agreement or the end of two years (unless extended) the Treaties shall cease to apply to the departing state, but it must be the revisions to the treaties brought about by the secession treaty that give our withdrawal legal effect.

If there then seems to be a contradiction here – or something of a legal conflict – then that is quite possibly the case. The more one looks at Article 50, the more it looks as if the "colleagues" did not really think through its practical implications.

The obvious way out of this is that the Article 50 agreement becomes, de facto, the secession treaty. But it will then rely not only on Article 50 but also Article 48. In that case, ratification becomes mandatory.  

Thus, come what way, in order for the UK to leave the EU, Parliament will have the last say. It will get its vote when the settlement is agreed. And, at that point, if it was so minded, it could say "no", even if I would not then care to vouch for the political consequences.

But from all of this, of course, it follows that if Parliament has the last word, it should not have the first. It should not have any power to veto Article 50 being invoked. Its turn will come later.