Background briefing on the European Union (Notification of Withdrawal) Bill

The European Union (Notification of Withdrawal) Bill was published on 26 January 2017 and will be debated in the House of Commons from 31 January to 8 February 2017.

What does the Bill do?

The Bill offers Parliament its first opportunity to give legal effect to the result of the 23 June 2016 referendum, in which 52% of those who voted called for the UK to leave the EU.

The Bill is very short: its one operative clause would provide the UK Government with the legal authority to issue notice to the European Council, under Article 50 of the Treaty on European Union (TEU), that the UK has decided to withdraw from the EU.

But it would start a process that would require the UK to enact much more legislation for when the EU Treaties no longer apply to the UK.

The Government is hoping that the Bill will become law in time for it to meet its deadline of 31 March 2017 for triggering Article 50, and so it has fast-tracked the Bill.

Is it “bombproof”?

The Government has drafted the Bill very tightly, which makes it hard for changes to be made that might, for instance, delay or subvert the Government’s plans for Brexit.

But there has nevertheless been much discussion about possible amendments. Several have already been tabled, for instance to require the Government to provide information to Parliament on the negotiations, and to require Parliament’s approval before the Government concludes a withdrawal agreement.

Why is the Bill needed?

The Bill is the Government’s response to the Supreme Court’s judgment in the case of Miller, given on 24 January 2017. The Supreme Court ruled, by a majority of 8 to 3, that it would not be legal for the Government to use prerogative powers to issue the Article 50 notice: instead, primary legislation was required.

The central reason for the ruling was that giving notice inevitably triggers major changes to domestic law at the end of the two-year exit negotiation period stipulated by Article 50. This is because the EU Treaties would then no longer apply in the UK, whatever legislation was enacted in Parliament. Such a momentous change to the UK’s constitutional arrangements, the Court decided, could not be brought about “by ministerial action alone”. The authority of primary legislation is required before the Government can take that action.

This Bill, if it is passed, will represent Parliament’s authorisation for the UK to leave the European Union. The majority judgment outlined that the form of the legislation is “entirely a matter for Parliament”. The joint view of the eight justices of the Court was the length of the statute bears no relevance to its constitutional importance, and that the decision to opt for a very short Bill, would not “undermine its momentous significance”.

The majority added that the European Referendum Act 2015 did not provide the legislative authority for the Government to give effect to the decision to leave the EU taken in the June 2016 referendum.

How else can Parliament be involved?

There are many other opportunities for Parliamentary involvement in Brexit, with varying implications, at different stages – before triggering Article 50; whilst amending domestic law for when the EU Treaties no longer apply; when scrutinising the withdrawal negotiations; and on conclusion of a withdrawal agreement:

• The Government has agreed to publish a White Paper on its negotiating strategy, although when and what it will contain are not clear, as well as to hold a number of Parliamentary debates before triggering Article 50.
• This Bill represents the first of many changes to the statute book that will need to be made in order to give legal effect to the decision to leave the EU. Legislating for Brexit, through both primary and secondary legislation, is likely to be a multi-stage project. The next stage will be The Great Repeal Bill, which may also be followed by further consequential primary and secondary legislation. This activity will all need to be coordinated with the process of negotiating the terms of the UK’s withdrawal with the EU under Article 50. Both of those processes can only begin once this Bill is passed and the notification of the decision to leave is provided.
• The Secretary of State for Exiting the EU, David Davis, has committed to ensuring that Members of Parliament are “at least as well informed as the European Parliament (EP) as negotiations progress”. It is not yet clear how well-informed the EP will be, but under an inter-institutional agreement with the European Commission, it has for instance been granted access to the “consolidated negotiating texts” of the Trans-Atlantic Trade and Investment Partnership (TTIP) negotiations.
• The Government has also agreed to put the final withdrawal agreement to a vote in both Houses of Parliament before it comes into force. However, the implications of a ‘no’ vote are unclear, and Parliament is unlikely to be able to recommend changes to the agreement at that point.

By way of comparison, the UK’s three bids to join the then European Economic Community (EEC) in the 1960s and early 1970s gave rise to six Government Papers on the legal, constitutional, historic, political, social and economic aspects of EEC membership. There were several days of debate on the principle of joining the Community, as well as debates on White Papers and the European Communities Bill itself.

Can the Article 50 notice be revoked?

The UK Courts have not ruled on whether notice given under Article 50 can be revoked.

If notice is irrevocable, authorising the Government to issue it would effectively commit Parliament to approving the final withdrawal agreement, seeking a renegotiation if practicable, or leaving the EU without any agreement.

A case in the Irish High Court might lead to a reference to the Court of Justice of the EU on whether Article 50 notice can be revoked. There is still the possibility of the UK courts making such a referral.

What about withdrawing from the EEA?

When withdrawing from the EU, the Government also intends to withdraw from the single market and the European Economic Area. But questions have been raised about how this might be done.

Another legal case is seeking to determine whether legislation similar to this Bill is also needed to leave the EEA, which has its own withdrawal process.

Devolution issues

The Supreme Court decided unanimously in the Miller case that the devolved legislatures do not have a legal power to block the Government from triggering Article 50.

The Government has said the current Bill does not require a legislative consent motion. But Scotland’s First Minister, Nicola Sturgeon, has said that her government would nevertheless table one, in order to give the Scottish Parliament a symbolic vote on triggering Article 50.

The Secretary of State for Scotland has suggested that a legislative consent motion would be sought for the Great Repeal Bill.