NOTE: This post is an update of an earlier post, taking account of Tuesday’s Supreme Court decision.

Today (Tuesday) the Supreme Court delivered its judgment in Miller & Dos Santos v Secretary of State for Exiting the European Union. Its main finding is clear, holding by a majority of 8 to 3 that an Act of Parliament is required in order for the Government to invoke Art 50. The Government has announced that the necessary Bill will be introduced into Parliament (called in this post the ‘Article 50 Bill’) within days (some political correspondents are suggesting Thursday). Apparently, the Government has cleared the next week’s legislative business allowing time for the Article 50 Bill to be debated in the House of Commons. This post looks at the issues surrounding Parliament passing the Article 50 Bill, the issue how Parliament may amend the Art 50 Bill will be discussed in a later post.

THE HOUSE OF COMMONS

The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit. Certainly, in the House of Commons, those parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process, with opposition to Brexit dissolving since the referendum in June. While the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a non-binding motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved Brexit in principle. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against the Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that the Article 50 Bill will pass the Commons.

THE HOUSE OF LORDS

The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, making passing any legislation a more difficult task. For example, the Government suffers defeats on amendments relatively frequently (for example on fifteen occasions since May 2016).

One protection is that, on the face of it, the Article 50 Bill will be covered by the Salisbury Convention. Under this constitutional convention, any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate. As the Conservative manifesto clearly indicated that a Conservative Government would respect and implement the result of the referendum, in this sense the Article 50 Bill is covered.

Alternatively, it could be open to peers to take the view that the Salisbury Convention is not engaged. This would mean that they would be constitutionally entitled to block the Article 50 Bill. This is because the Government’s intention is to take the UK out of the single market. Yet Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. On the basis that a notification under Article 50 is irrevocable, peers could take the view that the Article 50 Bill will set in train a set of events with the only destination being that the UK leaves the Single Market. Either negotiations are concluded with the UK leaving the Single Market to enjoy some form of relationship with the Customs Union (as Theresa May indicated last week) or, no agreement is reached within the two-year period, meaning that the EU Treaties cease to apply to the UK (Article 50 (3)). In this instance, the UK would leave the Single Market and fall back on WTO rules. The Conservative manifesto covers neither of these possibilities.

Resolving this argument requires considering other, broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block the Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.

It’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend the Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, risking the important role it currently plays in the legislative process as a ‘revising chamber’. Regardless, this would all be a pyrrhic victory as the Government could prevail through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.

AN EARLY GENERAL ELECTION?

A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.

BE CAREFUL WHAT YOU WISH FOR?

Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with the Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.