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 –


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:


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.


17 thoughts on “Can you hear the drums a banging?

  1. Although I agree wholeheartedly with you, I wish you would stop banging on about May’s personal mandate. She has the confidence of a majority in parliament and that is all that matters. It reminds me too much of the “no one voted for the coalition” harping, from those who presumably would have preferred endless general elections until a party (the tories) got a majority.

  2. Could an early walk out be structured (on purpose) as a withdrawal agreement with the EU? Madness but possible?

  3. We make a mistake when we think that Parliament will vote to Remain because that is the best thing to do. The Sovereignty of Parliament is relative to other institutions. Full sovereignty rests with the people – we lend it to Parliament because we need a functional mechanism for making laws. The referendum is the highest expression of the popular will on this question. It is politically binding on MPs – as the votes of Remain-leaning MPs on the Article 50 Bill have shown.

    So, for your scenario – which I support and hope for – to come to pass, Parliament needs to make essentially two changes to the commencement provisions of the great repeal bill. Second, it must say that the act does not come into force unless Parliament passes an affirmative resolution to that effect. But first, there must be a referendum on the terms before the affirmative resolution is put to the House.

    If we want MPs to vote Remain, they need to have the tool to do so: a Remain result in a referendum.

    So we now need to campaign to amend the “great repeal bill” to that effect.

    Facebook: Campaign for the Real Referendum – on the Terms of Brexit

    (PS I seem to remember there is a convention that commencement provisions are not voted on or amended, but cannot find it and may have made it up – perhaps lawyers familiar with Parliamentary procedure can tell me.)

    (PPS There is also the question whether the European Communities Act automatically ceases to apply if we have left the EU. A simple reading of the Act suggests that it applies whether we are members or not. But some of the House of Lords statements in the Gina Miller case suggest that the Act would not apply if we have left. Again, lawyers can clarify that.)

  4. Thanks. A very helpful post. I think I agree entirely.

  5. Two points on having another referendum:

    (1) I have not seen any polls (neutral ones) suggesting anywhere near popular support for it. (Most recently I saw an ICM poll (2000 respondents, equally from Leave and Remain, wide age range) from mid Feb indicating the vast majority (94%) of leave voters are still for leave, yet 44% of Remain respondents agreed with the statement ‘the government should get on with Brexit’.

    (2) Unless there’s a huge turning of tables in the Commons next week with the ping pong session, it looks very unlikely that a second referendum will be written into the article 50 bill. Also, unless the Tory party falls apart in the next 18 months, I don’t see how a similar amendment will find its way into the repeal bill either.

    Given the above, realistically it will only be Parliament that prevents Brexit and as Michael pointed out, there’s not enough political appetite for it.

  6. Rex McBrexit.

    I agree in part. All reputable polls that I have seen show no real shift in opinion since the referendum – the country is still divided half and half on whether Brexit is a good or bad thing.

    The only poll I have seen that directly compares peoples’ wish for a Parliamentary vote on the terms with a referendum on the terms is the ICM/ Guardian poll of 24 January 2017 – Table 7.

    For all voters, 53% said leave whatever happens, 12% said Parliamentary vote, 26% said referendum on the terms.

    Leave voters were of course all (well, 87%) for Leaving – I think that many have yet to consider whether the Brexit that is coming is the Brexit that they voted for or that they want now.

    Amongst Remain voters, the equivalent figures were 21% 21% and 49%.

    But you are right – depending on quite what the question is, polls say that between a fifth and a half of Remain voters think that the June vote settled the question. That is of course poor project management. In June, Leave had no plan. No-one takes a project from idea to implementation without a project review. And it may be that their view of whether it is right to or worth opposing Brexit will change as the terms of Brexit become clearer.

    I do not think that new material can be introduced during ping-pong, so there will be no referendum provision in the A50 Bill. The only question there is whether there will be a requirement for a Parliamentary vote. My hope is that once the A50 notice has gone in and Labour has proven that it respects the will of the people it will be able to take a more nuanced approach to Brexit and support a referendum (in line with party conference policy). And maybe the SNP will see keeping the UK in the EU as the priority once it becomes clear that there will be no special deal for Scotland, and that Brexit is not the driver for independence that some had hoped.

    Click to access 2017_guardian_jan_poll2.pdf

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  8. Theresa May is quite right saying no deal is better than a bad deal. We have a bad deal already, Anything would be better than what we have got.

    The last line of this article is the one I find both offensive and arrogant. Parliament WILL dance to the Brexiters’ tune because it might have escaped everyone’s notice, but Parliament is there to serve the people and the people have spoken. We wish to leave. Lest there by any confusion, that means leaving the EU and the Single Market. Personally, I would like to step back from the European Court of Human Rights as well.

    As for Article 50, this is just a huge talking shop which the European Parliament can reject at the end of it all and then what? David Cameron lied through his teeth throughout the Referendum campaign. He promised that he would trigger Article 50 the following morning if we voted to leave. We did and he did not.

    Far better would be to simply repeal the 1972 act, clear out all the restrictive EU nonsense, get our plundered fisheries back and generally decide what is bet for us without unelected, unaccountable officials doing so. If the EU wants to sell to us, which at the moment it does, rather a lot, it will sort out some key issues pretty quickly. Remove that lynch pin, cancel the standing order and walk. Pretty quickly, the car makers of Europe will start to scream, as will the farmers, especially as we can buy farm produce anywhere or even grow more of our own.

    There is a constitutional school of thought which states that our birthright freedoms and rights cannot be handed over to a foreign power unless we suffer defeat on the battlefield. To do so under any other circumstances amounts to treason. Sadly Heath is dead, as is Wilson, both of whom lied through their teeth as to EU end game. John Major is still with us, as are Blair and Brown. I would love to see them shipped into the Tower through Traitors’ Gate. I am undecided about Cameron, but he is far from off the hook.

    With Brexit, we can make our own laws, manage our own borders, fish our own waters and generally run our own affairs in such a way as suits us.

    As for the Lords, if they try and thwart the will of the people, they will soon find out that things do not quite work like that. They tried it on in 1911 and ended up with the Parliament Act. As a rule, I think the Lords do a good job, but not on this occasion.

  9. @Kevan: the outcome I want is to leave membership of the EU but to keep free movement of people, capital, goods and services. Call it the Iceland, Norway or classical liberal option, whatever you like.
    In order to get there I voted Leave.
    Your claim that “Lest there by any confusion, that means leaving the EU and the Single Market” is false. The question on the ballot – ‘leaving membership of the EU’ tells you this. Opinions expressed on politics talk shows notwithstanding.

  10. Andrew Carey

    Given what Theresa May has said her aims are, we can I think be pretty confident that you will not get the Brexit you voted for.

    So which of the two available options do you prefer: Theresa May’s Brexit or Remain?

    Facebook: Campaign for the Real Referendum – on the Terms of Brexit

  11. I very much doubt if our membership of the EU flows from the 1972 ECA which as you know was enacted some time prior to us joining. I would hazard a guess our membership and our obligations therein are conferred by us signing the Accession Agreement. Your assertion is a rather unusual one particularly from a QC. In the same way repealing the same act would have on effect on our international responsibilities.

  12. What’s the legal status of Scotland w.r.t. the EU if they voted for independence – can they claim to be an existing EU member?

  13. @Michael – it’s not a contest between Remain and May’s wish-list as you imply. It’s between Remain and May’s wish-list constrained by wanting to keep the Union together, have a soft border with NI and the EU allegedly wanting to keep free movement and free trade.

  14. Andrew Carey – for sure Theresa May will not get everything on her wish list. But she has made clear – both now and in her time as Home Secretary – that control of immigration, getting out of the ECJ (and ECHR) are her priorities. We will need to see where we end up, but I see Theresa May’s wish-list losing out on single market access and customs union deals rather than those driving her towards the EEA option that you I think prefer.

  15. Off topic question

    FCA Conduct of Business Sourcebook states that a firm must ensure that a communication or a financial promotion is fair, clear and not misleading (
    There are painful consequences if a firm found in breach of the Business Standards.

    The famous Leave poster stated: “Let’s give our NHS the £350 million the EU takes every week”.
    The £350m per week is the UK’s full membership fee (or £18bn per year), but there are rebates and deductions that the Leave campaign did not tell about. Nigel Farage, Boris Johnson knew that and still continued to lie about it through the campaign.

    Do persons telling untruth bear any consequences for misleading communication during a political campaign?

  16. Some time ago you reminded us that the purpose of Article 50 notice was to give notice to the European Council that a member state had DECIDED to withdraw from the EU. The EU (Notification of Withdrawal Act) 2017 allows HM Government to give such notice in accordance with Article 50. So, HMG has parliamentary consent to give notice that the UK has decided to withdraw from the EU, but when did Parliament decide to withdraw from tne EU?

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