Can you hear the drums a banging?

Here’s what Theresa May said on 17 January 2017.

I am equally clear that no deal for Britain is better than a bad deal for Britain.

And the likelihood of our leaving without a deal increased last week when, as the Sunday Times revealed, Government lawyers began to brief that there was no need for the UK to meet any future financial obligations to the EU.

This was doubly significant. First, because the Government’s position increases the likelihood of the talks breaking down. And, second, because the fact of briefing newspapers revealed that the Government was still in the business of managing public expectations up. And why would the Government continue to lead “the British people… to expect a future that seems to be unreal and over-optimistic”, as John Major put it? Unless it was preparing the ground to blame the EU when the talks fail?

Other prominent Brexiteers, too, are paving the way.

Last week David Davis warned Government Departments to prepare for that outcome.

And last night Nigel Lawson said, in essence, that he expected it.

As the Prime Minister made clear in her excellent Lancaster House speech and as the subsequent White Paper reiterated, no agreement would be better than a bad agreement. Sadly—and it is sad—a bad agreement is all that is likely to be on offer.

(It’s tempting to compare these words with his “almost certainly” when he was urging a Leave vote on the country in February last year –

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but that would be beside the point. Brexiters, as Walt Whitman might have observed, contain multitudes.)

So the drums are banging. The Government is – or so it seems to me – trying to prepare the ground for us just to walk out.

I do not write to address what the consequences of such a decision would be. Enough to note that the effects of doing so are profound and extend far beyond the narrowly mercantile upon which most attention has been focused. And to note that such an outcome does not reflect the will of the people: only 25% support it.

What I want to do is make one or two observations about the law.

Can Theresa May, a Prime Minister who has never been offered to the public, just walk out? What power does Parliament have, given her weak personal mandate, to restrain her?

I begin with Article 50. Relevantly it states:

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

So, as a matter of EU law, we leave when a withdrawal agreement says we do or, if there is no agreement, two years from the notification.

Putting it another way, as a matter of EU law, if Theresa May just walks out, Parliament has ample time to rescue the situation – by replacing her, by requiring that she recommence negotiations, or (most likely) by withdrawing the notification and remaining in the EU. (I assume, for reasons set out here, that such a thing is possible).

And the same is true as a matter of UK law.

Our membership of the EU flows from the European Communities Act 1972 and, unless Parliament agrees to repeal it, we will as a matter of UK law remain in the EU.

The Government proposes to deal with this by asking Parliament to pre-authorise Theresa May to repeal the ECA. Here’s how it puts the matter:

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And this pre-authorisation, the Government intends, will come in the misnamed Great Repeal Act.

But there is no practical need for this step to be pre-authorised.

If a withdrawal agreement is struck, it will, as all sides agree, be struck within 18 months of the notification. That leaves plenty of time for the Prime Minister to seek Parliament’s permission to repeal the ECA mindful of that agreement.

And if Theresa May proposes to leave without a withdrawal agreement this must be a decision for Parliament. The Conservative Party has no manifesto mandate for it. The assessment that we leave with no deal would be the personal assessment of an Prime Minister who has never been offered to the electorate and who has a very weak personal mandate for it. And it would defy the presently expressed will of the people.

Parliament should retain the reins of power. If we are to leave without a deal, Parliament must make that decision. And I think it will. Let me make a bold prediction: I do not presently think that Theresa May will succeed in persuading Parliament to pre-authorise the repeal of the European Communities Act 1972. There is no need for it – and her demand that it does simply expresses her preference for personal power over Parliamentary sovereignty.

Stand back.

As a matter of EU law we cannot leave without a deal inside two years. And as a matter of UK law we cannot leave without a deal unless Parliament says so; Parliament can stop us leaving inside two years – whatever Theresa May wishes.

The Brexiteers can bang their drums. But Parliament need not dance to their beat.

 

Four reasons why a meaningful final vote won’t hurt our bargaining position.

Downing Street is running hard with the line that for Parliament to have a ‘meaningful vote’ on the final deal would hurt the UK’s bargaining position. See (amongst other places) here and here.

But is this true?

Let’s just clear away some undergrowth so we can focus on the question.

Let’s assume that leaving without a deal would be hugely damaging.  It would be harmful in trade terms, it would be harmful in broader regulatory terms and it would harmful for UK citizens living in the other member States who would, for example, lose the right to free healthcare.

Leaving without a deal is, then, not really an option.

What ‘having a meaningful vote’ then means (in effect) is Parliament having the ability to reject whatever deal Number 10 strikes with Brussels without us having to leave without a deal. It has that ability if it can revoke – or ask the electorate whether it wants to revoke – the Article 50 notification so that we remain in the EU.

And let’s just assume this is possible.

So what’s Number 10’s position on having a meaningful vote?

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But is this right?

No, or so it seems to me at least. For four overlapping reasons.

First, it assumes that the other 27 are desperate to keep us.

If you were to ask them today, the 27 other member states would probably say they’d rather we remained. Probably – I’m not aware of any evidence. But it defies reality to assert that they are so desperate for us to Remain that they would deliberately set out to offer us an ugly deal even where the consequence of doing so might well be that we left the EU with no deal at all, hurting their citizens and businesses and ours too.

It’s even more bold to think that in two years time, after two years of exposure to our ‘have your cake and eat it’ negotiating strategy, and after two years of exposure to our rather vigorous tabloids, the other 27 remain so desperate for our continued membership that they take this risk.

This feels to me like exceptionalism on steroids.

Second, it assumes that it is better for us to Leave whatever the consequence.

We do not know what the future holds.

The vote to Leave occurred in a very different, and much more stable, world than we now live in. It was before the election of Trump who in a few short weeks has undermined NATO, undermined the WTO, threatened to renegotiate the trade deal of any state running a trade surplus with the US, threatened a border tax to discriminate against imports, threatened war against Iran and China and so on.

And – although supporters of Brexit are still running hard with the’having our cake and eating it’ line – the fact remains that we do not know what Brexit will look like. We do not know what the final deal will be. And we do not know what the consequences are.

No one making a decision of this magnitude in a climate this uncertain rationally chooses to make that decision earlier than she could. Even if she believes she is set on the right course she retains her optionality to the very last moment.

And by seeking to deny Parliament a meaningful vote what, in effect, Theresa May is choosing is irrationality. Forget the evidence, she is saying, we will leave whatever changes around us.

Third, it’s an unexplored assumption that a meaningful vote weakens our position.

The situation (without Parliament having a meaningful vote) is that we have to strike a deal within two years or suffer the consequences of leaving without one. If you want an analogy, you might compare this with having made a decision to emigrate and having booked your flight and needing to sell your car before you go. The would be purchaser wants the car but because you are up against the clock – and he knows it – your ability to hold out for the best price is limited.

That’s not a great bargaining position.

The alternative – having a meaningful vote – would give us the opportunity to decide ‘this deal is not good enough’ (or to use my analogy cancel our decision to emigrate). In that situation we are not held hostage against the clock in the same way. But, of course, there is a price attached to improving our bargaining position – we have to be prepared not to leave.

And, if you want to leave, that’s not a great bargaining position either.

You can weigh and spin these alternatives endlessly. But ultimately it seems to me that there is an air of unreality to the contention that Parliament having a meaningful vote weakens our position. We have decided to leave: the Government’s position is that the Article 50 notification won’t be revoked. And the EU knows we have decided to leave. A good deal is in our mutual interests – but there is no certainty we will be able to achieve one. No deal is in our mutual disinterest – but there is no certainty we will be able to avoid one.

And in the circumstances you get on with it and do the best you can and leave the weighing and spinning for the birds.

 

Fourth. Actually? This isn’t a fight about our bargaining position.

And this is the killer point.

Parliament is supreme. It can decide that it wants to remain. And even if Theresa May wants it not to be so it would still be so. It doesn’t need an amendment to the Article 50 Bill to confirm it is so. It is a fundamental tenet of our constitution.

And the EU knows this. So if the opportunity for Parliament to have a meaningful vote weakens our bargaining position then that weakening doesn’t follow from an amendment to the Article 50 Bill. It is hard-wired into our constitution. And it can’t be changed.

And all this talk from her spokesperson about “giving strength to other parties” is a mere smokescreen for that basic, undeniable truth.

So what’s all this really about?

It’s about control. Who gets to control these profoundly important decisions about whether we crash out without a deal? Or about whether we might look at the sum total of the evidence and choose to Remain? Does Theresa May, who has never been offered to the electorate as a Prime Minister, get to make them? Or does Parliament, whose MPs have a roving mandate from the electorate, get to make them?

And all the rest is smoke and mirrors.

 

Giving Parliament the Final Say

As anyone reading this post will know, the House of Lords is considering various proposed amendments to the European Union (Notification of Withdrawal) Bill.

One amendment – that would give Parliament the right to approve (or implicitly reject) the deal concluded by the Government – seems to be acquiring proper momentum. Overnight The Sun reported a Cabinet minister saying:

“At the end of the day, Parliament is sovereign. We have to take MPs with us on Brexit.

“If we don’t either they will force us, or the courts will. That is now becoming clear”.

The leading amendments appear to be those proposed by Hayter/ Lennie/Hannay/Pannic and Lester/Jones/Kennedy. You can read both here but they provide (respectively):

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It is possible – indeed it may well be likely – that there are nuances I am missing but neither seems to me to be perfect. What follows is my redraft and extension of the Lester/Jones/Kennedy amendment.

I offer it in the hope that the good men and women of the blogosphere will improve it further (in the comments section). Please: tell me where I’ve messed it up – or where it could be improved.

Parliamentary consent to the final terms of withdrawal from the European Union 

(1)           The United Kingdom may not withdraw from the European Union under Article 50 of the Treaty until—

(a)   where a Minister of the Crown proposes to conclude with the European Union an agreement setting out the arrangements for the withdrawal of the United Kingdom from the European Union in accordance with Article 50(2) of the Treaty on European Union; or

(b)   where no withdrawal agreement falling within paragraph (a) has been concluded with the European Union,

an Act of Parliament has been passed approving the United Kingdom’s withdrawal from the European Union.

(2)             No Minister of the Crown may conclude with the European Union any separate agreement pertaining to the future political or economic relationship between the United Kingdom and the European Union until an Act of Parliament has been passed approving that separate agreement.

(3)             Pursuant to subsection (1) above the Prime Minister must, within 18 months of the Government’s notification under section 1 of this Act, place before the House of Commons a draft Bill.

(4)             Subsection (3) shall not apply where the Prime Minister has previously obtained the unanimous agreement of the European Council to extend the period of two years referred to in Article 50(3) of the Treaty on European Union. On such an event the 18 month period referred to in subsection (3) shall be replaced by such period from the notification as the European Council has unanimously agreed less six months.

All three of the suggested amendments assume that the UK is able – whether through (a) having obtained the unanimous agreement of the other Member States or (b) because legally it can just decide it wants to or (c) (possibly) because this is what its constitution requires – to revoke the notification.

Brexit and the Antics of Lawyers

[What follows is a longer version of a piece published for The Times Brief earlier this morning.]

A lawyer’s mind is a curious thing. It is barely interested, often, in whether a choice is right or wrong. It acknowledges that in a complex world a simple question can have different answers. But it holds furiously to the idea that how we arrive at the answer is important.

Whose decision is this? Is it motivated by proper considerations? From whence derives the authority to make it? Post the right bricks through the right slots and you might, just might, impose a semblance of order on an unruly world.

Understand this and you will understand that which has so far escaped those who look, from the tumble of politics, askance at the ‘antics’ of lawyers.

Including my antics. Because it was only six days after the Referendum that I launched the crowdfunding exercise that concluded earlier this week with success in the Supreme Court. And which will see, today, further proceedings also crowdfunded issued in the High Court in Dublin.

The Supreme Court case was about who writes the Article 50 notification letter – Parliament or the Executive. No one should doubt that the letter will be sent. Whatever else the result of the Referendum means it must mean that we commence the process of leaving the EU. But she who holds the pen controls the process. And, at least to a lawyer, it is plain that Parliament not the Government must control that process.

There was no small print on the ballot paper. The decisions on the form Brexit takes are momentous ones. They must have the legitimacy that comes only from our supreme national Parliament. And not a Government appointed by a narrow majority of that Parliament. A narrow majority which had regard to considerations including maintaining the unity of the Conservative Party. These are considerations of process.

And what of the Dublin case? What does it do? It, too, is about process. Strip away the complexity and it looks to find an answer to a simple question: do we have the option of changing our minds about the wisdom of Brexit?

This is a question we should all want an answer to. All we know about the future is that it feels more uncertain than in living memory. Is NATO obsolete? Can our NHS survive? What humanitarian responsibilities come with our foreign policy escapades in the Middle East? What will happen to living standards as the details of what Brexit means emerge?

It must be in the national interest, in this uncertain world, that we have the option of changing our mind. Whether we actually change it will depend upon events. But what a tragedy it would be if we came to think our national interest lay in remaining but found that course barred to us. The preponderance of legal opinion is that we could decide after all to remain. But the issue is important – and our Parliament must know the answer, not merely guess at it.

So the question is about how Article 50 works. Having notified, can you withdraw your notification? Whatever the answer is for the UK will also apply to the other 27 member states. And this means that only a court to which we all subscribe can give an answer. Here, the European Court. We access the European Court via a national court. And it can’t be our courts – because the complaints includes that the other 27 have breached the Treaty by excluding us from Council meetings before we’ve notified. And that complaint can only be made in their courts.  But whichever national court we choose it ends up in the same European Court.

So my concerns are with process. Yes, I voted to Remain. Yes, if there was another vote tomorrow I would vote the same way. But, no, the Dublin case is not about blocking Brexit. It recognises the result of the Referendum. But it also recognises that people sometimes change their minds.

Does the Government’s Brexit Bill work?

This is what the Bill says:

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You’ll see that the operative clause says:

The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

And here’s what the relevant bits of Article 50 says:

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You’ll see that the UK has to make a decision to withdraw from the EU (clause 1). And then notify the Council of that decision (clause 2).

Now the Bill authorises the Prime Minister to notify the decision. But it says nothing about who gets to make the decision.

It is true that the judgment of the majority in the Supreme Court focuses on notifying the decision: see, for example, paragraph 59 which provides:

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And paragraph 101:

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On the other hand, when the majority  turns to considers the effects of the Referendum, it is quite clear that the Referendum does not constitute the decision to leave:

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And that’s because the force of the Referendum lies in the way it influences Parliament:

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In so deciding, the Supreme Court rejected the contention advanced by the Attorney General in the High Court that the decision had been made (see pages 59-61 here):

The first point is that the former Prime Minister, David Cameron, in a speech on 23 January 2013, in which he announced his intention that should the Conservative party win an overall majority in the forthcoming general election, to hold what was described as a referendum.

Secondly, a majority Conservative government having been elected in the general election on 7 May 2015, the European Union Referendum Bill was introduced in Parliament on 28 May and became an act on 17 December that year. It provided for a referendum asking the question: should the UK remain a member of the European Union or leave the European Union. We will submit that it was clear during the passing of that legislation that the government intended to act in accordance with the outcome of the referendum. (Pause)

The third point I was going to make was that the referendum itself took place on 23 June 2016, with a clear majority of those voting in favour of leaving the European Union.

Fourthly, the then Prime Minister made it clear on 24 June that the will of the British people expressed in the referendum result would be respected and acted upon.

Fifth, on the resignation of David Cameron as Prime Minister, the current Prime Minister announced her candidacy, saying she would also act on the result of the referendum.

Sixth, on becoming Prime Minister, Theresa May has made it clear repeatedly that the government will deliver the departure of the United Kingdom from the European Union and statements of other ministers have confirmed the same. So my Lords, it is the defendant’s clear contention that by the steps I have set out, a decision has been taken by the government to leave the European Union in accordance with the provisions of Article 50(1) of the treaty on European Union. And in accordance with Article 50(2) of the treaty, the next step to be taken is the notification of that decision to the European Council.

 

So if the Referendum is not the decision to leave, and the decision has to be taken by Parliament, where is the decision?

Perhaps the Government thinks that Parliament, should it authorise the Government to notify, is implicitly making a decision? Perhaps, should the Bill be enacted in this form, a court would agree that it has been made?

But, at a momentous moment like this, it’s an awfully odd way to legislate. It might be an idea for the Government to amend its own Bill.

 

A Clean Air Fund

The following is extracted from a paper I wrote last year.

I reproduce it today in light of further alarming reports on the quality of London’s air. I should say that I have three children who attend a state primary school in Central London.

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The Environment, Food and Rural Affairs Select Committee has called air quality in the UK a “public health emergency” and has linked two air pollutants alone – particulates and nitrogen dioxide (NO2) – to the early deaths of 40-50,000 people a year. The UK is in breach of NO2 limits in 38 of 43 areas.

Compared to petrol vehicles, diesel have higher emissions of NO2 and much higher emissions of particulates. However, because diesel engines are cheaper to run, diesel use has been increasing. In 1990/91 the ratio of diesel consumption to petrol was 0.395 to 1. In 2015/16 the ratio has reversed and is now 1.653 to 1. Over that same period diesel consumption has increased from 12,912 to 28,688 million litres. This increase may, in part, be attributable to the decision to align, with effect from 1 April 2008, fuel duty rates at the lower unleaded petrol rate (in effect reversing the higher rates of duty charged throughout the ‘noughties’ on diesel).

 

A projected 28,588 million litres of ‘normal’ (i.e. ‘petrodiesel’ or non-biological) diesel was released for sale in 2015/16. A 3p litre increase in present duty rates would raise a projected £858m before behavioural effects.

That sum could be hypothecated to a Clean Air Trust and invested in improving air quality and alleviating the effects of poor air quality. It might be used, for example, by including by taking traffic off our streets by developing better quality cycling infrastructure.

Hypothecation of the duty receipts (into a Clean Air Fund together with the compelling need to reduce diesel consumption) is likely to lead to greater public acceptance of the rate rise. This is a point made, amongst others, by the Environmental Audit Committee.

Strict hypothecation of tax receipts has been little used by UK Governments (although there are many examples of a rhetorical “earmarking” (see, for example, Gordon Brown’s “ring-fenced fund for the modernisation of roads and public transport” in his 1999 Pre Budget Statement). However, something of a precedent for the hypothecation of environmental taxes to deliver specified outcomes can be seen in the Landfill Communities Fund.

Taking this policy suggestion forward would be for a coalition of stakeholders. I would, of course, work with any such coalition.

Is Article 50 reversible? A primer on the Dublin case.

The so-called Dublin Case seeks to establish whether we can unilaterally – ie without the consent of the other 27 member states – withdraw our Article 50 notification.

What follows is a list of frequently asked questions, which I reserve the right to add to over time.

Why is the case important?

Once Theresa May has triggered Article 50 – likely to be in March of this year – we will leave the EU unless we change our mind about the wisdom of that course.

If we do change our mind, there is no doubt that, if the other 27 Member States agree, we could withdraw our Article 50 notification. But it is also possible that we have a unilateral right, which we could exercise without needing to seek their agreement. And it is obviously preferable that we have control over such a decision.

How far has the case progressed?

Because the question whether a member state can unilaterally reverse its Article 50 notification is one of European Union law, it can only be answered by the Court of Justice. And obtaining an answer involves two stages. First a national court needs to refer the question to the Court of Justice. And, second, the Court of Justice needs to answer it.

On or before 27 January we will issue proceedings in the High Court in Dublin. We are targeting a hearing in early April on the question whether it should make a reference to the Court of Justice.

If it does, we know from past experience that the Court of Justice can give a decision within three months of a question being referred to it.

Of course, these timescales will depend, in particular, on the attitude that the Irish courts takes towards the question of a reference. And the speed with which the Court of Justice is prepared to hear the case.

You can read the most recent press release here.

Is this an attempt to block Brexit?

The question seeks an answer to a legal question ‘can a state that has triggered Article 50 later unilaterally withdraw its notification?’

If the Court of Justice answers that question ‘yes’ it leaves the question ‘does Parliament want to withdraw its notification’ for our democractically elected Parliament.

So the case does not enter the political sphere – it leaves the political questions, rightly, for the politicians.

I should add that I did vote to Remain in the Referendum and, were we hypothetically to have another referendum tomorrow, I would vote the same way.

Who is funding the case?

The £70,000 anticipated cost of the proceedings before the Irish High Court was crowd-funded from small donations. There were almost 1,300 donations of £25 or less and over 1,700 donations of £50 or less.

It is possible there will need to be further monies raised to fund the Irish litigation. And if a reference is obtained to the Court of Justice in Luxembourg there will certainly need to be a further fundraising.

You can read what I said at the time of the first fundraising here.

It should be noted that the lawyers are acting at below market rates. And that I will publish as much of the material as I can. You can read our Letter to the Irish Advocate General here: ireland-letter-before-action

What is the Government’s stance on revocability?

The Government’s stance is a political one: it says that it does not intend to revoke Article 50 and David Davis claims not to know whether it could if it wanted to:

one of the virtues of the article 50 process is that it sets you on way. It is very difficult to see it being revoked. We do not intend to revoke it. It may not be revocable—I don’t know. That is the route we are going down. I expect, at least at that point, that people’s calculation will change from, “How can we make them change their minds?” to, “How can we best deal with this?”

However, it is at the very least highly surprising that it has not sought legal advice on the question (although it is possible that David Davis is not aware of that advice). And the fact that the Government does not say that Article 50 can’t be unilaterally revoked is telling.

It is also worth saying this. No one, acting rationally, chooses to make a momentous decision earlier than they need to and before they have the fullest possible evidential picture before them. A Government driven by the interests of the country should want to preserve its optionality until the last possible minute. Moreover, it is hard to understand why the United Kingdom Government might argue for an outcome that denuded itself of a unilateral right and left it instead at the mercy of the agreement of the other 27 member states.

If a reference is made to the Court of Justice, what will the Court say?

Of course, nobody knows.

If we did there would be no need for a reference. But the clear preponderance of legal opinion is that a member state could revoke a notification if it had a real change of mind.

There are many examples but:

  • here’s Donald Tusk (then President of the Council) expressing a view (at 24.55);
  • here’s Lord Kerr who is credited with having drafted Article 50;
  • here’s the former Director of the Council’s Legal Service;
  • here’s Sir David Edward, former Judge of the Court of Justice; and
  • here’s a good academic law treatment.

Of course, when the country is making what Theresa May has rightly described as “momentous” decisions we ought to know – not merely think we know – the legal framework within which those decisions are being made.

Why is the case being taken in Dublin?

Whoever makes the reference to the Court of Justice in Luxembourg the answer will be the same. The same court will hear the case and the United Kingdom will have the same opportunities to advance written and oral arguments.

That having been said, the case rests on alleged breaches of the Treaties by the other member states; those breaches can only be asserted in the courts of those other member states; and the Irish courts are the natural choice because Ireland shares an operating language with the UK, has a very similar legal system, and is profoundly affected by Brexit.

What is the position of the Irish court likely to be?

I have taken this case with the benefit of advice from specialist Senior Counsel – the Irish equivalent to our own Queen’s Counsel – and solicitors experienced in obtaining references to the Court of Justice. I am confident it is the right course for me to be taking.

However, I cannot disclose their advice. That having been said, the widely respected Fellow and Associate Professor at the School of Law, Trinity College Dublin Eoin O’Dell has written:

the balance of the argument is that a referral to the CJUE is likely if a case does indeed get off the ground.

What happens if Article 50 is found to be revocable?

In her Brexit speech of 17 January 2017 Theresa May promised:

the Government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.

Michel Barnier has said that the negotiations with the UK will need to be concluded within 18 months of the trigger date to allow time to ratify the deal. And David Davis agrees this is achieveable. So there will be ample time after the deal is concluded for Parliament to consider whether it wishes to accept the deal and act accordingly.

Parliament is supreme and sovereign. Should MPs or the House of Lords reject the deal they would have the (theoretical) so-called ‘cliff-edge’ option of leaving the EU without a deal. But they will also have the (viable) option of remaining in the EU. Or (more likely) putting the question back to the electorate in the form of a Referendum on the Final Deal.

A ‘Final Deal’ referendum has previously commended itself to a number of prominent Brexiters, including Dominic Cummings.

Whether one is likely to happen will be a function of the prevailing popular mood at the time Parliament is required to consider the question. As I explained here, it would be a mistake to assume that the mood today (which is broadly static since the referendum) remains static over time. We have not, after all, at the time of writing, even triggered Article 50 and many things can and will change.

Finally

You can see an interview with me discussing the case here.