Brexit and Parliament: A Second Capitulation or Sovereignty Regained?

The judiciary has spoken, most clearly. Parliament must authorise the triggering of Article 50, in essence because it failed to spell out the legal effects of the referendum in the EU Referendum Act 2015. If it had done so, the Miller litigation would not have been necessary.

The judgments in Miller are orthodox and, frankly, unremarkable as to their outcome. A different result could only have been reached if the judges had chosen completely to disregard the nature and effect of EU law, as endorsed by the European Communities Act 1972 and all relevant subsequent legislation. The size of the majority confirms the degree of orthodoxy: all three (very senior) judges at the Divisional Court and eight out of eleven Supreme Court justices. The reasoning of the majority is unitary, meaning that the argumentative road to their ruling was uncontested. The dissent of Lord Reed is built upon a reading of the ECA which implies that, in 1972, Parliament was wholly agnostic about EU membership, and adopted this statute merely for the purpose of enabling the Government to opt for EU membership for as long as that Government saw fit. Parliament as the handmaiden of the executive. This may be a recurring political fact even in the most vibrant liberal democracies, but, with greatest respect, to construct constitutional case law on it undermines the proper balance between the executive and parliaments, and representative democracy as we know it.

For an EU lawyer the need for a parliamentary decision on triggering Article 50 is wholly unremarkable. All EU Treaties and all accessions have been approved by the parliaments of all Member States, as a condition for their entry into force. The term "in accordance with its constitutional requirements" in Art 50(1) is also used in the Treaty provisions on amendments and accessions. If anything, the legal road to the bare finding that Parliament needs to pull the trigger would have been even straighter if the terms of Article 50 had been put at the centre of the argument. It speaks of a "decision" to withdraw, notification of which is a purely procedural device. Who else, in a system whose alpha and omega are the sovereignty of Parliament, could take such a seismic decision than Parliament itself? The politically contested nature of the Miller litigation finds its origin in the fact that Parliament (and the Government) pretended that it was for the people to take that decision, in a referendum, but did not lay this down in any statute. Parliament's first capitulation.

The question now is what Parliament will do with the sovereignty it has regained. The Miller litigation was imprecated with the mantra of the clear distinction between law and policy. Litigants and judges were adamant that the issues were purely legal, and had nothing to do with the politics of Brexit - no doubt in order to shield themselves from excessive public contestation. The somewhat unfortunate side effect is that the rulings went no further than confirming the bare need for a statute, and refrained from saying anything else about the role of Parliament in the Article 50 process. The result is a two-section Bill that is wholly confined to the notification of the intention to withdraw. Nothing about any further Parliamentary involvement.

The judges could perhaps not have been expected to say more, but the distinction between law and policy is not as neat as they portray it. Clearly, it is possible - and indeed desirable - to reflect about the proper role of Parliament in a treaty-withdrawal process as momentous as Brexit, and to do so in a constitutionally principled way. The very referendum debate showed the strong desire to confirm domestic representative democracy in the face of EU (and international) competence creep. The Brexit negotiations are a great opportunity for strengthening the involvement of parliaments in international negotiations. They are not just about international matters, but about the rights and obligations of citizens, and about domestic policies across the whole spectrum of the public realm. They are "about legislation" (a concept coined by the former German Constitutional Court judge Lübbe Wolff in Current Legal Problems). When I say parliaments I mean, at a minimum, both the UK Parliament and the European Parliament. In light of the referendum debate, which expressed the deep democratic concerns of voters, it would be paradoxical in the extreme for the future relationship between the UK and the EU to be determined through a wholly outdated intergovernmental negotiation process that is far worse, in democracy terms, than the ordinary process of EU law-making.

In that context, there is an imperative need to debunk the myth of executive superiority to negotiate the "best deal" for the UK. The Brexit negotiation spectrum is so wide that overall cost-benefit balancing is impossible, on either side. What constitutes the "best deal" involves political decisions, on issues as diverse as the future trade relations; cooperation in regulatory matters ranging from the environment and food safety over financial services to intellectual property; criminal justice cooperation; migration; etc etc. Those decisions ought to be subject to proper democratic deliberation, if control is really to be taken back. To lump them all together in a big negotiation exclusively governed by executive decision-making behind closed doors is an affront to representative democracy - to parliamentary sovereignty, in other words.

So Parliament cannot capitulate again. It simply needs to get involved with the Brexit negotiation. However, the most important question is what happens at the end of the negotiation? It is true that Mrs May has promised that Parliament will have a vote on the "final deal" (the withdrawal agreement). But the reading of Article 50 which all actors appear to adopt seems to give Parliament a mere nuclear option of either accepting the agreement, or voting it down, with in the latter case no time to renegotiate: a fall off the Brexit cliffs. This reading of the two-year deadline must be resisted. EU law recognises the principle of representative democracy (Art 10 TEU - there are advantages to a written "constitution" expressing constitutional principles). This can be argued to mean that the relevant actors have to allow the Parliament to say no, followed by renegotiation. This could be done by reading Article 50 in such a way that the signature of the withdrawal agreement stops the clock. The withdrawal agreement itself could provide for such a mechanism; or it could be done by way of a European Council decision extending the Article 50 deadline.

It would clearly be preferable for these questions to be considered by the UK Parliament at this very point in time, when it is authorising the Government to trigger Article 50. Further capitulation to the Government is not a proper response to the democracy concerns which the referendum expressed.
 

• Piet Eeckhout is Director of the UCL European Institute and Professor of EU Law in the UCL Faculty of Laws.

This article first appeared on Professor Eeckhout's personal blog, London-Brussels, and is reposted here with permission.