Triggering Article Fifty
From the outset the new Prime Minister, Theresa May, insisted that the decision to invoke Article 50 of the Treaty is a matter for the Government, not Parliament. She told the Conservative Party Conference that “it is not up to the House of Commons to invoke Article Fifty, and it is not up to the House of Lords. It is up to the Government to trigger Article Fifty and the Government alone.” She went on to attack those who argued for a vote in Parliament, saying that “they’re not trying to get Brexit right, they’re trying to kill it by delaying it. They are insulting the intelligence of the British people.”
A number of legal challenges to the Government position are being heard in the High Courts in London and in Belfast.
A second issue related to parliament’s role in scrutiny of the Government’s exit strategy and negotiating approach. Ministers have argued that they will not put their negotiating demands into the public domain, Secretary of State for Exiting the European Union, David Davis, insisting that “we will tell the House as much as we can but not enough to compromise the negotiation.”
This approach has proved problematic, not least for some Conservative MPs who openly encouraged the Labour Party to confront the Government on the issue. Labour obliged, with its newly appointed Shadow Secretary of State for Exiting the European Union, Keir Starmer, tabling a Motion on 12 October:
“That this House recognises that leaving the EU is the defining issue facing the UK; believes that there should be a full and transparent debate on the Government’s plan for leaving the EU; and calls on the Prime Minister to ensure that this House is able properly to scrutinise that plan for leaving the EU before Article 50 is invoked.”
Faced with a potential majority for this proposition – and with the Government majority of less than twenty – the Prime Minister moved to keep her party colleagues on board by producing an Amendment adding to the end of the Labour text:
“; and believes that the process should be undertaken in such a way that respects the decision of the people of the UK when they voted to leave the EU on 23 June and does not undermine the negotiating position of the Government as negotiations are entered into which will take place after Article 50 has been triggered.”
The Amendment accepted the Labour call for “full and transparent debate” but did not contain a commitment to a parliamentary vote on the subject. A Number 10 spokesperson was quoted as saying “The Government is focused on delivering on Brexit. We have always been clear that Parliament has an important role to play, and this motion reflects that.”
The Motion, with its Amendment, was debated in the House of Commons on 12 October.
Labour’s 170 Questions
Before the debate started the Labour Party, through Keir Starmer and the Shadow Foreign Secretary, Emily Thornberry, published an extraordinary document setting out 170 detailed questions about every aspect of Brexit. A covering letter stated that “If you are able to provide satisfactory answers to all these questions, just one per day from tomorrow until 31 March next year, it might give some confidence that the Government is entering the Article 50 negotiations with a clear plan.” Government sources strongly criticised the Labour initiative as an attempt to ‘second guess’ the will of voters and to “reveal every aspect” of the negotiating strategy in advance.
The Debate on the Motion was introduced by Keir Starmer who argued that the decisions to be taken by Government in relation to exiting the EU were of historic significance. “We have probably not seen a set of such significant decisions since the end of the second world war.” He addressed the terms of the Government Amendment, expressing the hope that it indicated “that the Government will go further down the route of scrutiny than they have been prepared to do so far. If they are, I will not crow about it, because it is the right thing to do and it is in the national interest.”
Proposing the Government Amendment, Secretary Davis started by dismissing the 170 questions as ‘a stunt’ and asserting that “Worse still, some of the questions in that long list are requests pre-emptively to concede elements of our negotiating strategy.” He welcomed the Labour acceptance of the decision of the people and agreed that the issue was too important for point scoring.
He then addressed the substance of the issue, stating that he was “determined, as would be expected, that Parliament will be fully and properly engaged in the discussion on how we make a success of Brexit. I therefore broadly welcome the motion, but with important caveats, and that is why the Government’s amendment is necessary…..We also need to be explicit that, while we welcome parliamentary scrutiny, it must not be used as a vehicle to undermine the Government’s negotiating position or thwart the process of exit—both are important.”
David Davis made the point that “the sovereignty of Parliament and its restoration is at the very heart of why the UK is withdrawing from the European Union. For decades, the primacy of the UK Parliament has been superseded by decisions made within EU institutions, but now, following the clear instruction of the voters in the referendum on 23 June, we can finally change that and put Parliament unequivocally in charge.”
In the ensuing debate the former Labour Party Leader, Ed Miliband, argued that if the Government was serious about creating a national consensus it must be transparent and consultative with the people and, indeed, this House. “Would it not also be an irony if the main act of those who argued in the referendum for the sovereignty of Parliament…was to deny the sovereignty of Parliament in determining the outcome of the Brexit negotiations??”
Replying to the debate, the Minister of State at the Department for Exiting the European Union, David Jones, adopted a positive and inclusive approach, stating that “We are happy to accept the Opposition’s motion, which is helpful and has been the catalyst for an excellent debate that has developed the argument significantly, subject to the addition of the words contained in the amendment.”
The Amended Motion was agreed without division:
“That this House recognises that leaving the EU is the defining issue facing the UK; believes that there should be a full and transparent debate on the Government’s plan for leaving the EU; and calls on the Prime Minister to ensure that this House is able properly to scrutinise that plan for leaving the EU before Article 50 is invoked; and believes that the process should be undertaken in such a way that respects the decision of the people of the UK when they voted to leave the EU on 23 June and does not undermine the negotiating position of the Government as negotiations are entered into which will take place after Article 50 has been triggered.”