Column / Brexit Briefing
Who decides when to pull the Article 50 trigger?
By Benjamin Fox
One viral video, doing the rounds on social media, shows a cat in a Union Jack flag scratching to be let out through a door marked "Brexit". As soon as the door opens, the cat looks at the door, then at the man who opened it, then back at the door…without moving.
It’s now six weeks since 52 percent of Brits voted to leave the EU. But if Article 50 is now the most talked about section of the EU treaty (in London at least), we are no closer to seeing it put into action.
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The apparent wish of Secretary of State for Exiting the European Union, David Davis, to wait until early 2017 to pull that two year pin on the Article 50 grenade, is frustrating in equal measure to European leaders and many people in the Conservative party. But the delay is probably just as well.
Who can trigger Article 50?
The answer to "who can trigger Article 50 and how" depends on which lawyer you ask.
Government ministers are under the impression that Theresa May doesn’t need Parliamentary approval to begin negotiating, and can use the prerogative powers that used to belong to the Queen.
David Cameron, for his part, promised during the campaign that he would immediately go to Brussels and begin negotiations, before changing his mind and resigning the day after the vote.
The London-based law firm Mischon de Reya has become an unlikely rallying point for Remain supporters, launching a court case that would require Theresa May to get formal approval from Parliament before she triggers Article 50.
Opening arguments on the case took place three weeks ago. It is likely to end up before the UK’s Supreme Court.
Meanwhile, the Constitutional Law Association — the UK's national body of constitutional law scholars and experts — insists that Parliament must enact a statute empowering or requiring the Prime Minister to issue notice under Article 50. However, they have no formal power to bring that about.
It’s at times like this that a written constitution would save everybody a lot of trouble, time and sizeable legal fees.
Stuck in court
Either way, there is a need for legal certainty. Article 50 specifies that a decision to leave the European Union must be made ‘in conformity to a Member State’s constitutional requirements’. Fall foul of this requirement and we could be stuck in the courts for years.
But while May has repeatedly said that "Brexit means Brexit", there is no time limit on when Article 50 will be invoked, and no clarity on what the terms of Brexit could look like.
The UK has far more to lose than the remaining EU-27 if it leaves the bloc without an alternative plan in place. This means the UK government wants to start the two year process only when it feels strong enough to get what it wants.
This could mean, as lawyer and writer David Allen Green suggested, that “the longer article 50 notification is put off, the greater the chance it will never be made ... And there is currently no reason or evidence to believe that, regardless of the referendum result, the notification will be sent at all.”
Act of Parliament
If triggering Article 50 does require an act of Parliament, getting the support of MPs would pose little challenge despite the Conservatives’ slim majority of 12.
The government pamphlet sent to all UK households in May and June was unequivocal in stating that “this is your decision. The Government will implement what you decide.”
It’s extremely hard to imagine Conservative and Labour MPs defying the will of the electorate, and getting away with it.
A snap election within the next six months remains a distinct possibility. With the Labour party more interested in its own civil war than being the opposition, there is every chance May would win a crushing victory.
But if a general election would give May a personal mandate to govern, the referendum already gives her administration a mandate to negotiate Brexit.
The House of Lords, however, could be a different story. The unelected Lords, to their credit, include a healthy number of independent-minded troublemakers. Despite the chamber’s obvious democratic deficit, much of the most effective scrutiny of government laws is the work of those Lords.
Patience Wheatcroft, a senior former journalist and Conservative Peer, is among a cross-party group of Peers who threatened to block any Act, arguing that “people ought to be given an opportunity to think again”.
Yet, Wheatcroft's Conservative group is a minority in the Lords (243 out of 797), outnumbered by a motley collection of Labour, Liberal Democrat, and non-partisan Crossbench Peers, not to mention 26 Bishops.
It is perhaps appropriate that the decision to begin unpicking the spider’s web of the UK’s relations with the EU should be beset with legal uncertainty and difficulty.
For the moment, like video of the indecisive cat, unsure if it really wants to make those fateful steps, everyone is confused but we're still watching.