How, after Article 50 is triggered, will the law shape and constrain our future inside and outside the EU?
To answer that question let me make some assumptions.
First, assume that Theresa May triggers Article 50 on 29 March 2017. And, second, assume that we can unilaterally revoke Article 50. (The Dublin case is progressing. Slowly but well. The Good Law Project will publish an update next week here. Please sign up to our mailing list).
What happens next? Is there a legal path to Remaining? How will this shape and be shaped by the politics?
There are three main scenarios going forward. They involve a delicate and complex interplay of EU and UK law. I’ll set them out and then – once I’ve run through the analysis – address what seem to me to be the main points of interest.
(1) We conclude an agreement with the EU which Parliament approves. We then leave the EU on the date – it may be less or it may be more than two years from 29 March 2017 – set out in that agreement. The precise date of our departure depends on what the agreement provides: Article 50(3) says that the Treaties cease to apply to us “from the date of entry into force of the withdrawal agreement.”
(2) We don’t conclude a deal with the EU. The key fact to bear in mind is this: as a matter of EU law we remain in the EU until 29 March 2019 and we then we leave. But as a matter of UK law, whether we leave before 29 March 2019 depends upon the status of the European Communities Act 1972 (the “ECA”).
Theresa May will ask Parliament (in her so-called Great Repeal Bill) to give her power to repeal the ECA at a moment of her choosing. If you assume Parliament has not given her that power then it would be for Parliament to choose – in response to talks with the EU breaking down – whether to repeal the ECA or to take some other action. It is difficult (for me) to imagine that Parliament might ask the PM to recommence negotiations. But it could very well put back to the electorate the choice whether to leave the EU without a deal or to Remain. And if a Referendum produced a Remain result before 29 March 2019 we would Remain in the EU as a matter of both UK and EU law.
If, on the other hand, Parliament had given her that power then you would expect Theresa May to repeal the Act when talks with the EU break down. That would have the consequence that we would be out of the EU as a matter of UK law. But, until 29 March 2019, we would still be in the EU as a matter of EU law. Parliament could still in theory – I will return to consider the practice below – call a referendum on whether to leave the EU or to Remain. And if that Referendum produced a Remain result before 29 March 2019 Parliament could re-enact the ECA and we would Remain in the EU as a matter of both UK and EU law.
(A small aside. I don’t understand why Parliament should prospectively repeal the ECA. To do so is unnecessarily to abrogate a power that properly belongs to Parliament. But perhaps in the final analysis it doesn’t matter hugely).
(3) We conclude a deal with the EU and Parliament doesn’t approve that deal. This scenario may be less likely than (1) or (2) but its effects are substantially identical to scenario (2). (It is possible that our membership of the EU would, as a matter of EU law, expire on the date prescribed by the rejected agreement (see Article 50(3)). But I think the better view is that the withdrawal agreement would never “enter into force”.) So, until 29 March 2019, Parliament could choose to Remain.
So a few points emerge from this analysis and generally.
(i) Parliament still has a lot of power. Whatever the Prime Minister does, Parliament can still decide to Remain in the EU.
(ii) opinions differ but my own view is that party politics is not the insuperable barrier to Remaining that many think. This is not the place for a lengthy analysis of the point but I proceed from the premise that Labour MPs are basically Remain and there is a substantial body of Conservative MPs who are basically pragmatic. This, of course, is not to deny that the political situation could be better for those like me who still think the country’s interests are better served by us Remaining.
(iii) if you believe that leaving the EU is a bad thing, and that the public will come to appreciate this, then scenario (2) is rather striking. If negotiations with the EU deteriorate and break down we will see how the economy reacts. And we will also see the – hitherto under-examined – other non-financial consequences: for Scotland, for Northern Ireland, for the right of UK citizens living in the EU and EU citizens living here to reside and access healthcare, for air transportation and the NHS and so on. And we will see how the public reacts to this. Scenario (2) could very well confront the electorate with a stark choice between the having and the eating of cake. And at a point in time when Parliament can still react to the electorate’s choice.
This is a reality which could shape both the EU’s and our own conduct of negotiations.
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Terms & conditions may apply after triggering Article 50. : Remain OK, but minus your opt outs – could this happen
If we never leave we retain the bespoke deal we have. But if we leave we lose it even if we subsequently return.
It amazed me that anyone could look at the ridiculously good deal we’ve got from the EU and think “If we leave we can get a better deal”. And 6 months later, it still does, and the Brexit Bunch haven’t even totted up how many negotiatiors the UK has yet! Even as things start to slowly fall apart.
Clown shoe dumb.
I am not at all sure that either the public or Parliament would have any appetite for the further referendum to which you refer.
Here’s an alternative proposition: if the Government either walks away from the Art. 50 negotiations with the EU-27 without having concluded an Exit Agreement and/or an FTA (as in (2) above) or Parliament declines to pass the primary legislation which will – according to the former Deputy President of the Supreme Court, Lord Hope, and the former Attorney General, Dominic Grieve QC MP – be required in order to comply with the Supreme Court’s judgment in R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union and associated references and give effect to the Exit Agreement (as in (3) above), then the Government would self-evidently not have the support of the majority of MPs in the House of Commons.
I reckon that, in those circumstances and from a Constitutional Law perspective, the best way of resolving the situation would be for the House of Commons to invoke the “No Confidence Motion” procedure contained in Section 2(3) to (5) of the Fixed-term Parliaments Act 2011 and so initiate a General Election.
There was, in my view, a constitutional conflict between the Government’s mandate from the General Election in May 2015 and the result of the EU Referendum last June. Hopefully, a General Election during which the full details and impact of the Exit Agreement and FTA (if any) were thoroughly debated in an informed manner would avoid a repetition of that…
By the way, I think the first sentence of (iii) above should read “the public will come to…”
This is a very interesting article.
There is perhaps another option 1A. Parliament approves the deal as a package to be put to the electorate in another referendum. That is, Parliament says “yes, this is the best Brexit deal available. Electorate, over to you”.
If Parliament has given Theresa May the power to bring the “great repeal act” into force and she uses it, then I would have thought the Remain game was up politically. I assume the Government would not lead us into chaos. So all the new arrangements would have to come into force: domestic regulators to replace EU regulators, new international agreement on obtaining radioactive products, aviation services &c &c. While in EU law we would not have left and so a Remain referendum would simply confirm our non-leaving, as a matter of practical administration we would have bounced around from EU bodies to UK bodies and back to EU bodies. Surely many people who would prefer to Remain would not vote for the disruption of going back to EU bodies after having just started with UK regulators &c.
From which it follows that it is of great importance for Parliament to ensure a commencement provision for the “great repeal bill” that (1) does not allow the Government to bring the substance of the Act into force without a positive vote by Parliament, and (2) does not allow Parliament to vote on that commencement order without a prior referendum. The importance of the latter point is that even in late 2018 MPs will still feel politically bound by the June referendum result. And the losers will not accept a vote by MPs.
One of the barriers to Labour supporting a referendum on the terms is the belief held by some that the terms will not be definite enough to allow for a meaningful vote on them until the final deal is agreed in the 2020s. I do not agree as a matter of political reality. But I wonder whether you have a view on the legal nature of the Article 50 “Framework for future relationship”.
Clive Goldthorp: The public’s attitude to a possible Remain vote is quite complicated. Both YouGov (14 March) and Guardian/ ICM (24 January) have tried to find out what the public think should happen at the end of negotiations. Just Leave : a Rethink Vote obtains 53:38 or 45:42 of the total population. But of course amongst Leavers the figures are 87:10 or 76:17; amongst Remainers the figures are 21:70 and 19:71. Amongst those who want a rethink vote a referendum leads a parliamentary vote by 2:1. Expectations of a good deal where Theresa May achieves her objectives are high. But even a deal that obtains control of immigration but little on trade would have support. Whether the Leave public will want a rethink once the terms are known will depend on what the deal costs them; whether they believe the assessments of the cost; and how much they are willing to pay to control immigration/ restore what they believe is lost sovereignty. On the last point there are quite different results from different studies.
The trouble with using a general election to resolve Brexit is that elections vote for a government, whereas Brexit is a single issue. So the questions are different. Moreover, governments can win with say 11m votes (Conservatives 2015). Would such a government have authority to overturn or confirm a referendum where both sides won more votes?
Whatever the merits of referenda, having started with a referendum, I think we need to finish with a referendum on the terms.
Facebook: Campaign for the Real Referendum – on the Terms of Brexit
Just a further post in response to Michael Romberg’s thoughtful comments above – in my view, if the Art. 50 negotiations result in either of the scenarios at (2) or (3) in the article and the Government does not have a sufficient majority in the House of Commons to pass the primary legislation mentioned in my previous comment (and which would, on reflection, probably be required in either case), then whether to Leave or Remain may well not be the only issue which should be put to the electorate.
The Government would, in either of the scenarios, have been judged by Parliament not to have met the objectives outlined in “The United Kingdom’s exit from and new partnership with the European Union” White Paper – with respect, that would clearly go to the Government’s competence and credibility and, in those circumstances, surely the proper way to bring the Government to account – from both a constitutional and a political perspective – would be a General Election.
Moreover, there would currently seem to be at least the possibility that either of the two scenarios under discussion might also precipitate a major constitutional crisis over the future of either Northern Ireland and/or Scotland’s membership of the United Kingdom – if the Government’s actions resulted in that outcome, then surely the Government should be called to account via a General Election.
Interestingly, Will Brett, the author of the Electoral Reform Society’s Report on the EU Referendum (which was published last September) came to this conclusion:
“As we have seen, referendums usually involve a drastic simplification of the realities of any given political question. Even in a campaign-free vacuum, it is very hard to funnel all the complexities around big constitutional questions into a straight, binary choice. And when you add the intensity of political campaigning into the mix, the chances of a decent, well informed debate become slight indeed.”
The Electoral Reform Society does make a series of worthwhile recommendations about how the conduct of any future referendums in the UK might be improved – see Pages 9 to 10 of the Report mentioned above – but, unfortunately, my guess is that our Parliamentarians are unlikely to have sufficient time to either debate or implement those proposals during the course of the next eighteen months or so and, in the absence of that, a General Election would be a more viable and, possibly, less divisive way of testing the electorate’s opinion on the outcome of the Art. 50 negotiations.
If I was a Conservative party strategist, I would be thinking about how to win the 2025 election, because I would assume the 2020 one was effectively already in the bag. The stretch between 2020 and 2025 could be difficult economically post Brexit, and political opposition might be stronger. Therefore it might be best to engineer a referendum in early 2019, hoping for Remain. This would result in some loss of credibility, offset by a rise in the pound, prior to 2020, but the 2020 election should still be easily winnable. So the net result would be that 2025 election prospects would be significantly improved by a second referendum.
Hence there may be political incentives for Conservatives to manoeuvre into a situation that prompts a second referendum.
I should, in the interests of completeness, add that the Electoral Commission’s Report on the EU Referendum (which was also published in September 2016) contains a total of fifteen recommendations as to how the conduct of any further referendums might be improved – a summary of those can be found on Pages 10 to 15 of the Report.
Anyone advocating a referendum at the conclusion of the Art. 50 negotiations and who has not previously given both the Electoral Commission’s Report and the Electoral Reform Society’s Report careful consideration should now, perhaps, think about doing so…
Clive Goldthorp: I agree with you that a government that failed to get a major plank of its programme through Parliament – or that lost a referendum on the terms – should face a confidence motion, and a general election if that is lost, for the reasons that you set out.
I still think that a general election could not resolve the Brexit question, given that we started with a referendum.
If my view were widely held, then there would be an interesting sequencing problem.
It would be simple if Parliament now set up a referendum on the terms. If that went to Remain, there would afterwards be the question of whether the Government should fall.
But if Parliament votes down the terms, the order of sorting out Brexit in a way acceptable to the people and sorting out the government becomes much more problematic.
I see that you called a general election “possibly less divisive” rather than “not divisive”; I don’t know which would be worse, but if Parliament voted Brexit down then we would have a pretty tricky few months. Those who voted Leave in protest at a metropolitan elite who did not listen to them would feel their beliefs had been confirmed.
“And if a Referendum produced a Remain result before 29 March 2019 we would Remain in the EU as a matter of both UK and EU law.”
I am probably being mighty thick, but I do not understand this point and would be grateful for further explanation on the matter of EU law.
I thought we are out after two years unless A50 can be and is revoked. Apart from that no amount of screaming, referendums or other devices will make the slightest difference unless EU27 agree.
Why am I wrong?
You need to read the assumptions I make at the start of the piece.
Rather than just blathering about the arcane intricacies of A50, why don’t you engage your (large) brains in thinking about how we can make a success of Brexit. I suspect (regrettably) that it will happen and therefore the country needs all the help it can get to ensure that it is a success. As we all well know the poorest generally will suffer the most and therefore it is in all our interests to mitigate the economic effects as far as possible
Thank you for your reply to my prior comment. Yes I was being dim. Your position is predicated on the unilateral revocability of A50 as you had made clear in your third paragraph.
So, your Dublin case is a potential game changer. Theoretically, we know there maybe a life boat. But, put an actual lifeboat in front of Parliament and it may elect to float it.
I see that and the wisdom of obtaining it.
Michael Romberg makes several legitimate points in his most recent post but has not specifically addressed the issues raised by both the Electoral Commission’s Report and the Electoral Reform Society’s Report on the EU Referendum – having thoroughly read the latter last September and noted the continuing divisions which the vote last June has caused, I honestly believe that the best chance of healing those rifts would be a General Election.
However, there would, at least to me, seem to be two practical problems with Michael Romberg’s proposal:-
1) given that there was no majority in either the House of Commons or the House of Lords for an amendment to what is now the European Union (Notification of Withdrawal) Act 2017 providing for another referendum, where is the evidence to suggest that there would be a majority in both Houses for a similar amendment to the proposed (and inaccurately-named) Great Repeal Bill?
2) in the circumstances discussed in the article, there must at least be the possibility that there would be insufficient time for both a further referendum (which complied with the recommendations of the Electoral Commission and the Electoral Reform Society) and a General Election between the conclusion – deal or no deal – of the UK-EU negotiations and the end of the two-year period specified in Art. 50.
Finally, in response to Julian’s point about focussing on how the UK can make a success of Brexit, my answer is simply this: having read most of the Written Cases and Transcripts for the original Judicial Review Proceedings in the High Court, repeated the process and/or watched the hearing in the Supreme Court and watched as much of the passage of the European Union (Notification of Withdrawal) Act 2017 through both Houses of Parliament as possible on either BBC Parliament or Parliamentlive.tv, I have very little, if any, confidence left in either the Government’s or the majority of our MPs’ ability to “make a success of Brexit”…
Thank you for these interesting points. I have to say I see little prospects of the divisions caused by theBrexit debate healing except by habituation to the final outcome, when re-joining/ Leaving will again become the province of a few “fruitcakes” for a couple of decades.
(1) Why would MPs and Peers vote for a referendum when they did not do so on the Article 50 Bill? First, public demand. We now have a second opinion poll showing that the public who want a re-think vote prefer a referendum to a Parliamentary vote by 2:1 (sources in earlier post). Around 40% of the public want some form of re-think vote at the end of negotiations, that proportion seems to me likely to rise as some Leavers are disappointed by the result of the negotiations.
The politics will also have changed. Labour will have demonstrated that they respect the will of the people by not preventing the Article 50 notice. They can take a more nuanced stance, in line with the preferences of their voters and their party conference.
The SNP may also come to see the argument that EU/EEA-Scotland will do better with EU-England as its neighbour than Brexit-England. That would point to a sequencing of referenda.
(2) I agree that it would be tricky to manage both referendum and general election between say November 2018 and March 2019. (Though the Greeks managed to stage their bailout referendum one week after calling it.) If we only had time to hold one, then surely the one that would affect the Brexit decision that is subject to a deadline. I would suggest that was the referendum. If the government wins the referendum and we Brexit, then the 2020 election time-table stands. If the Government loses and falls, the new temporary government could revoke the Article 50 notice and the deadline would no longer matter.
There is also the possibility that the EU might extend the deadline in these circumstances.
As to the recommendations of the Electoral Commission and the Electoral Reform Society, I read them when they came out and have skimmed the recommendations again. A few comments.
Everything that they say about information and conduct problems is also true about a general election, but is not held to invalidate an election. Indeed, elections demand more of voters because every subject is on the agenda, not just the limited competences of the EU.
I am struck that the objections of principle to referenda are normally only made about the EU referendum. I see few people saying that Nicola Sturgeon’s call for a Scottish independence referendum is inherently wrong because referenda should not be used, but the decision should instead be made by the Westminster Parliament. Nor are there extensive criticisms of the League of Nations/ United Nations plebiscites used to settle boundaries after the two world wars.
The complaint that referenda simplify complex issues (general elections don’t?) is an argument for a two stage process. All decisions start complicated and end up simple: shall I move house? becomes shall I buy this particular flat? A referendum on the terms would be a valid binary choice. After all, we will be either in or out of the EU; once the terms are settled we will know what out means.
Well, in response to Michael Romberg’s latest post, I would just make the following points:-
1) when launching the Electoral Reform Society’s Report, the Chief Executive, Katie Ghose, said: “This report shows without a shadow of a doubt just how dire the EU referendum debate really was. There were glaring democratic deficiencies in the run-up to the vote, with the public feeling totally ill-informed. Both sides were viewed as highly negative by voters, while the top-down, personality-based nature of the debate failed to address major policies and issues, leaving the public in the dark.” What might the UK’s electorate think of Parliament if MPs and Peers subjected them to another EU Referendum debate which was “dominated by ‘glaring democratic deficiencies'”? What, if any, evidence is currently available to suggest that those “democratic deficiencies” would be addressed second-time round?
2) maybe, just maybe, there might be a causal relationship between at least some of those “democratic deficiencies” and the divisive nature of the EU Referendum debate – if that was proven to be the case, then surely repeating the mistakes of the past might result in still more division and that may, in certain circumstances, pose a potentially significant threat to the UK’s representative Parliamentary democracy.
3) as Michael Romberg rightly points out, come, say, November 2018, “the politics will also have changed.” Imagine this scenario, then: the Conservative Party supports the deal or no deal position of the Government, the Labour Party supports further negotiations with the EU and the Liberal Democratic Party and Scottish National Party both support continued membership of the EU – how might those three different positions be adequately presented to the electorate in the debate on another binary, Yes/No question?
Time is a finite resource and, unfortunately, that now precludes me from further participation in what has been an enjoyable discussion.
Clive Goldthorp: I am sorry that you will not be continuing this interesting discussion. For other readers, may I just make some additional points to consider alongside yours.
(1) By contrast the Electoral Commission found that 62% of voters felt they had enough information about the Leave and Remain arguments to make an informed decision about how to vote. That figure is lower than for other recent referenda, but no comparison is made with a general election.
The Commission also asked whether people felt they knew enough about what would happen after a Remain vote (yes – 65%, no 26%) and after a Leave vote (yes – 45%, but no 46%). A referendum on the terms should be much clearer about what would happen after a Leave vote because there would for the first time be a plan. So that should clear up the main information deficiency.
(2) Brexit is a divisive question. I do not see that any decision-making process is going to stop the question being divisive. Possibly some of the answers to the question “what would Leave mean?” would make the question less divisive. For example, if the comments made by some Ministers that immigration would not fall markedly were the official policy, then the Brexit question might be less divisive – though the immigration debate would still be divisive.
(3) I think there is no practical way of holding a three-question referendum (third option depends on successful negotiation outcome; how to weight second preferences).
Anyway I think that sending the government back to negotiate harder is not going to lead to a material difference. They won’t be able to do better than they already did. It will be too late to change the fundamentals of the deal (stay in the single market). So only details will be capable of change, e.g. that Labour would have prioritised X over Y, rather than the Conservatives’ Y over X. Valid, but no real change in the deal.
And of course, how, with first past the post, would a general election resolve that question fairly (though of course a general election answers a different question: who should form the government? – Brexit is only one factor)? We all know the maths of how many votes it took to elect MPs of different parties.
My final general point is that a lot of thought goes in to attacking the fairness &c of the referendum. The implicit point of comparison is an idealised general election. If we subjected the general election process to the same level of challenge and scrutiny it would not stand up. Just think of a basic point about the referendum: each vote counted and counted the same. That is not true in a general election. And I need only mention the House of Lords.
There’s also an interesting scenario (4) in which a deal is in principle agreed by both sides, it is recommended to UK parliament to be approved, but which the EU cannot ratify itself (it falls at one of the national or regional stages of EU27 ratification).
Not that this differs much in terms of the economic end game from your scenario (2) … but it would most certainly change the political elements you bring up.
Have you thought through the remain scenarios before pushing for this?
What happens to our rebate? I suppose you want that to go anyway so the joy of making even larger net contributions can be realised.
What happens to our Euro exemption?
Will we have to join the Fiscal Union and have our budget pre-approved by the Commission and the Fiscal President before our own Parliament is even allowed to debate it?
Will we have all of our international trade relations decided for us again, meaning we won’t be able to positively trade Africa out of poverty but have to persist with demeaning international aid (one of the few things the EU lets us do)?
Will our Armed Forces have to be subject to the coordination of the Commission’s new EU forces command?
Must we abandon plans to have, like Norway, control over our fish stocks?
Will we be required to join Schengen?
Have we lost our exemption from “an ever closer Union” and therefore must agree to all Commission policies that have this as their aim?
Will we be required to join in the bailout of Greece, Italy’s banks, and Spain’s unemployed?
Will we have to help fund Germany’s massive unfunded public sector pension liability of trillions of Euros?
Will we be required to join in the punishment of Ireland for having the temerity to offer lower corporation tax rates to encourage inward investment from USA?
Will we have to agree to harmonised tax rates in the fiscal union, preventing our national policy of having the lowest corporation tax rate in the G20?
Will we never have a free trade deal with USA, with any African country, with China?
There are massive potential risks in staying in the EU, and we are not getting anything like enough information from the Remain side about how these risks are going to be addressed if they are successful.
If we Remain, we Remain in the EU as now. Nothing will have changed legally. So all our agreed special deals stay. No need to join Schengen, no need to join the Euro, no need to contribute to Eurozone bailouts &c &c.
Whether David Cameron’s latest deal still stands is less clear – that has not been implemented, so that is a matter of political debate.
(If we leave and re-join it would require a negotiation to get the same special deals. But that is a different scenario)
On some of the other issues you raise:
Why do you think we might have to support Germany’s unfunded public sector pensions liability? Countries are responsible for their own debts – or have you made some secret deal with the Germans that they should take on the UK’s unfunded public sector pensions liability?
We will continue to benefit from the trade agreement the EU has negotiated. Those include technical deals with the USA covering specific sectors, though there is not a comprehensive trade agreement. The EU is of course trying to agree a trade agreement with the USA.
Time seems to be on my side this morning so here’s a postscript to my earlier exchange with Michael Romberg which has been prompted by a comment which Alex Salmond MP made during BBC One’s special Question Time: Britain after Brexit programme last night. Here’s the link:
Mr Salmond (at 01:23:24) said: “You’d have to have a General Election in which people argued in the General Election to hold another referendum and got a mandate for doing it… The only way you can get another referendum is if a General Election gives a party a mandate to reconsider the whole position.”
We both, with respect to Michael Romberg, appear to have overlooked the constitutional and political reality of the current situation – irrespective of whether either the public and/or our Parliamentarians have any appetite for a further referendum, none of the political parties currently has a mandate for the necessary primary legislation.
However, in the scenario outlined in Point 3) of my second post on the 24th March above, any or all of the parties mentioned would be able to include a commitment to hold a referendum on the outcome of the Brexit negotiations – deal or no deal – in their manifestos. Hopefully, though, those manifesto commitments would take full account of the Electoral Commission’s and Electoral Reform Society’s various recommendations…
Incidentally, in conclusion, anyone who believes that the UK (or, for that matter, the EU) will find negotiating a favourable FTA with a Trump-led US a straightforward task should, perhaps, take note of this recent article by Jordan Weissmann of Slate Magazine:
Clive Goldthorp: welcome back
Whether a government – or Parliament – needs an electoral mandate to do something is a political question at the time. The fundamental mandate that MPs and Ministers have is to deal with stuff as it arises. A referendum on the terms of Brexit is a consequence of the original referendum.
Alex Salmond – who of course needs to worry about referendum fatigue, and perhaps the awful prospect of the UK deciding to Remain in the EU and hence depriving the SNP of its argument for indyref2 – is as far as I know the first leading figure to make that argument.
Well, in response to Michael Romberg’s latest comment, I suspect that we may have now reached the point at which the discussion might best be continued by the academics who specialise in Public Law and contribute to the UK Constitutional Law Association’s Blog page…
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