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 –

Capture

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:

Capture

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?

Capture.jpg

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.