Chapter 4: The scope of the legislation or resolutions
46.We do not intend to set out in this report the detail of what any legislation or resolution put before Parliament should contain. If primary legislation is used, there will be greater scope for Parliament to address matters beyond the relatively narrow confines of the triggering of Article 50, as well as wider opportunities for members of both Houses to debate the issues. A resolution would most likely be more limited—or focused—in scope, and members would be limited by the procedures of both Houses in the extent to which detailed amendment and debate could take place. In either case, the Government will be responsible for introducing a draft text for Parliament to consider.
47.Parliament and the Government will need to choose whether to focus at this early stage solely on the issue of the triggering of Article 50 (and on whether any specified prerequisites should form part of the UK’s “constitutional requirements” for that purpose), or whether to take the opportunity to discuss more broadly how Parliament and the Government expect to take forward the withdrawal process as a whole.
Separating Article 50 from symbolic acceptance of the referendum result
48.The triggering of Article 50 has become, in many people’s eyes, a symbol of Government and Parliament’s decision to accept the referendum result. This is unfortunate. The triggering of Article 50 will set an initial deadline for the UK’s withdrawal, and we do not believe it is in the UK’s interest to trigger Article 50 precipitately.
49.A delay in triggering Article 50 in order to allow time for informal negotiations, or to allow Parliament and Government an opportunity to discuss and agree a vision of the UK’s new relationship with the EU, should not be mistaken as an attempt to reject the result of the referendum. Public perception is important, however. It may therefore be helpful for Parliament as a whole to acknowledge the referendum result in any legislation or resolution and to instruct the Government to start making the necessary arrangements for the withdrawal of the UK from the EU—whilst making it clear that Article 50 is an intermediate stage in that process, and not the start point.
50.We recommend that any legislation or resolution should clearly set out Parliament’s recognition and acceptance of the referendum result, but should seek to make clear the distinction between that acceptance and the decision as to when Article 50 should be triggered. Article 50 should be triggered only when it is in the UK’s best interests to begin the formal two-year negotiation process.
Options for greater detail: a route map?
51.Participants at our seminar generally agreed that Parliament ought to consider how it would be involved in the negotiation process as a whole now, rather than later. One noted that “we need to look a lot further into the future … at what sort of problems will be presented. It is not just the early stage. How far can we … get an indication of what the negotiations would be—a negotiating route map, if you like? What will happen in the last quarter of the two years of Article 50?”34 Another suggested that:
“From the perspective of good government and what people can expect in the months and years ahead, it would be very helpful if the legislation could set out a little more than just simply authorising the Executive to trigger Article 50. … it could set out what the appropriate machinery for the next step or the step after that would be.”35
52.If Parliament decides to use this opportunity to set out its role overseeing negotiations, it will need to tackle the difficult question of the appropriate balance between the benefits of parliamentary involvement in the negotiation process and the risk of being over-prescriptive and hobbling the Government’s ability to negotiate. As one participant in our seminar noted:
“If there is some detail in an authorising Bill, there will be a very difficult balance to strike. How do you put in enough detail so that people understand and have confidence in what is proposed? To what extent do you find that—like Gulliver—you are being tied down by myriad small ropes on things that you cannot do in the negotiation process? That will be quite difficult, but it will be important to have enough transparency that people can see the proposed machinery.”36
53.The following issues will need to be discussed, and consideration given to whether they should be addressed by any bill or resolution:
- Whether preconditions should be set for the triggering of Article 50—such as the presentation of specified information to Parliament for approval—which would then become the “constitutional requirements” that must be met before the formal negotiation period begins;37
- Whether ministers should in principle be required to report back to Parliament at all, or at specified, stages of the negotiation process;
- How Parliament might be involved in the negotiation process;
- Whether and at which stages Parliament’s consent should be required for the negotiation process to progress; and
- How Parliament should ratify the withdrawal treaty.
34 Constitution Committee private seminar, July 2016
35 Ibid.
36 Ibid.
37 See paragraph 31