MPs did not properly approve Brexit—so the triggering of Article 50 was invalid

Whatever you might think, MPs have not assented to Britain leaving the European Union. That leaves the UK in dodgy legal territory

December 07, 2017
Gina Miller. Photo: Matt Crossick/Matt Crossick/Empics Entertainment
Gina Miller. Photo: Matt Crossick/Matt Crossick/Empics Entertainment

Parliament is the sovereign body in the United Kingdom. It is neither the government nor the electorate which has the final authority to decide what is to be done in matters of state, but parliament and parliament alone. This fact has, astonishingly, been disregarded in the most crucial way in relation to Brexit.

For parliament has at no point voted on the proposition “that the UK should leave the European Union.” And that means that a decision that the UK should leave the EU has not been properly taken. Such a decision is required for the triggering of Article 50 to be valid under the terms of the Lisbon Treaty.

Of course, the government would argue that such a decision has been taken. It claims that the EU referendum of June 2016 constituted the decision. It claims this because, it says, parliament voted in 2015 to have a referendum, and the government of the day promised to carry out the result of the referendum. And of course since then parliament has voted to trigger Article 50. But these facts are not sufficient.

First, the referendum was explicitly advisory only—see House of Commons Briefing Paper 07212 §5 and §6 (3rd June 2015) and what the then Minister for Europe, David Lidington, said in the debate on the Bill in the House of Commons on 16th June 2015. And, second, the government cannot make the final decision: it is accountable to parliament, and only parliament can make such a decision.

Parliament voted to give May the authority to trigger Article 50—that is, to inform the EU that the UK intends to resign its membership. But that is not enough. The Article 50 Bill contained no clause actually legislating a decision to do so, a decision required for Article 50 to be invoked.

The decision to resign the UK’s membership of the EU, a decision that belongs to parliament alone to make, had not been taken up to that point, was not taken at that point, and indeed has not only never been taken by parliament but parliament has never been asked to take it. A decision so momentous cannot be regarded as having been taken by implication, even if it were argued that such a decision had been implied. And that is why the triggering of article 50 is invalid.

Indeed in the Supreme Court Miller case, which is what forced the government to give parliament a vote on Article 50 in the first place, the government’s own lawyers said: “Parliament must be asked to answer precisely the same question which was put by parliament to the electorate and has been answered in the referendum, and must give the same answer in legislative form” if the triggering of Article 50 of the Lisbon Treaty is to be lawful. The government did not ask parliament that question, and it has never done so.

“The government is enacting what amounts to a species of coup”
This, very obviously, matters enormously. One reason is that if nothing is done about this, the European Court of Justice might well decide, in eventually reviewing any final deal reached between the UK and the EU (if matters get that far), that the UK has not acted in conformity with its own constitutional principles, as required by the Lisbon treaty itself; for nowhere is there a decision by the state’s sovereign body to leave the EU. That would make a nonsense of the time, expense, and huge disruption caused by the process leading to that point.

But even more importantly, the failure of the government to put the question to parliament is a gross insult to our democratic process. Indeed the way that the government has behaved, in side-lining parliament from this momentous matter, is an insult not only to democracy but to parliament and to the people of the United Kingdom as a whole; for in failing to abide by the requirements of our representative constitution, the government is enacting what amounts to a species of coup.

Only 37 per cent of the electorate enfranchised for the referendum (an electorate excluding several important and materially affected constituencies of people) voted to Leave—only 37 per cent: nowhere near, by any stretch of imagination, a mandate or a justification for a major constitutional and historical upheaval—and yet by denying parliament the opportunity to reflect on that fact directly, and to decide whether to take the “advice” of the advisory referendum, the government deliberately bypassed the constitutional safeguard that parliament represents as our sovereign authority.

And then the government sought re-election in order, as May explicitly said, to get a mandate for taking the UK out of the EU. The government lost its majority in that election, confirming that there is no mandate for the UK to leave the EU. Yet propped up by an arrangement which threatens the stability and even peace of a part of the UK itself, the minority government is pressing ahead with the Brexit process, still without the authority of parliament, and with even less support than before.

For that reason Liz Webster and I and a group of colleagues—lawyers, businesspeople and academics—are taking the government to court over this matter. You can read about this further, and give it your moral and monetary support, here. If we win, it stops the Brexit process, and a new Brexit process can only begin if parliament votes to take the UK out of the EU, with or without another referendum.


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