Whatever you might think, MPs have not assented to Britain leaving the European Union. That leaves the UK in dodgy legal territoryby AC Grayling / December 7, 2017 / Leave a comment
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…