What happens if the talks break down?

The starting point is Article 50. 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 withdrawal agreement, two years from the notification.

So walking out of negotiations before the two years are up does not, as a matter of EU law, terminate our EU membership.

What about as a matter of UK law?

Our membership of the EU flows from the European Communities Act 1972. As a matter of UK law we are in the EU so long as that Act says we are.

And what’s key here is who controls the status of that Act.

If the status of the 1972 Act is in Parliament’s hands then it will be for Parliament to choose, should our talks with the EU break down, how to respond. Parliament may choose to react by repealing the European Communities Act 1972 or it may choose some other action.

It is difficult to imagine how Parliament could demand that the PM restart negotiations. But leaving with no deal will have calamitous consequences and, in a world where Brexit had fallen so very far short of the promised cake-and-eat-it uplands, Parliament could well think it right for the electorate to decide whether to leave the EU without a deal or to Remain. And if a Referendum produced a Remain result before 29 March 2019, and the EU consented, we would Remain in the EU as a matter of both UK and EU law.

But the important thing is that the question ‘what action should we take if the talks break down?’ would be for Parliament to answer.

But what if the status of the 1972 Act was outside Parliament’s hands?

That’s a topical question because Parliament is just about to be asked to agree to repeal the 1972 Act in the European Union (Withdrawal) Bill.

The very first clause of that Bill says:

The European Communities Act 1972 is repealed on exit day.

And “exit day” is defined as “such day as a Minister of the Crown may by regulations appoint.”

Yep, that’s right. The government is proposing that a Minister gets to decide when our membership of the EU ends. And to make that decision without any Parliamentary control at all. None, zip, nada.

The consequence of Parliament agreeing to this clause is stark.

If talks do break down, it will be a Minister of the Crown – Boris Johnson, say – who has absolute unfettered discretion as to how to react. Parliament – our sovereign and democratically elected Parliament – will be completely sidelined from the most important decision our nation has made in recent times.

Giving unfettered power to a Minister, marginalising our Parliament, in respect of such an important decision is the very opposite of taking back control.

Parliament must vote against clause one.

14 thoughts on “What happens if the talks break down?

  1. All I know is that the Momentum mob will brook no argument that runs counter to their views and become thoroughly unpleasant when challenged. I know of two local Labour councillors, one sensible, the other one less so who have quite the party.

    The left expects everything to be done for them and the rich, which would be you Jolyon, to be taxed to oblivion. It was Labour that wanted ID cards with really intrusive detail on it. Doubtless Labour also thinks driverless cars are a brilliant idea too. The EU wants telematics on all new vehicles. Who needs the Stasi when the government knows precisely where you, or at least your car is, 24/7?

    Extreme unions destroyed our car and coal industries. With the former, what they produced was so dreadful nobody wanted them, which was just as well because delivery dates were some undisclosed point in the future. Maybe. This was at a time when we were designing some of the most beautiful cars on earth.

    As for the miners, that was easier. We had gas and built CCGT power stations so had no more need for coal. By endless industrial action and national blackmail, a better way was found, Throughout, Labour was happy to let things run on. Labour cancelled some of our most creative and advanced projects, such as the TSR 2.

    Labour left the country bankrupt in 1979 and again in 2010. Public spending was out of control and there was waste everywhere. This has not changed, so the Tories are nothing to write home about. They are at least trying to fix things, albeit clumsily. Labour just left the kids ‘running’ the sweet shop.

    Corbyn bought votes by cynically and untruthfully offering students not only no fees but a full refund. If I were a student, I would have had some of that.

    Finally, in 1972/3, the old Enabling Act was used to ram through huge swathes of EU aligned legislation, signed off by ministers who could not possible have had time to read what they were signing. That got us into this mess, so it seems reasonable to me that a minister can decide when to pull us out.

    When we signed up, we were never told that commissioners were immune from prosecution, that Europol would be immune from prosecution, that the Treaty of Lisbon was a very minor re-hash of the EU Constitution already rejected by 3 countries, one of them France. We were never asked of course, despite Labour promises to do so. The Constitution can be suspended by the commission, led by a man elected by 28 leaders from a short list of one and accountable to no-one. Labour left thinks this is brilliant. Who needs the Stasi? We have the EU.

  2. Presumably, if you are referring to Johnson, you mean Minister of the Clown?
    That aside – would this mean any minister could table the regs? What is to stop them? What is to stop any minister exercising this authority without reference even to cabinet colleagues? As you’ve quoted it, it seems like a pretty sweeping power with zero oversight (not just from parliament but from other ministers).
    On a related point – it is clear now that any board of executives for any public company that is not planning for the UK to crash out of the EU on Brexit Fools day 2019 risks being charged with dereliction of duty. Some shareholders might well go further and say they need to ACT before that date – not just plan.

  3. No. Parliament would not be marginalised in the circumstances you describe. Parliament would have explicitly authorised a Minister of the crown to DECIDE THE BEST TIME TO LEAVE by passing the European Union (Withdrawal) Act.

  4. Dear Jolyon,
    Thank you.
    And just to save you the effort – the guy who posted a comment is a UKIP person.
    I despair.
    After reading your life story this week, I have a vague awareness of where you get your determination to make things better and am in awe of what you have acheived so far.
    Thank you so much for keeping on keeping on.
    Not to mention that you have a turn of phrase which makes me laugh sometimes – still not sure what the lapidary thing was about! ( I am sure it is of no consequence in the grand scheme of things).
    Take care.
    Kind regards
    > On 31 August 2017 at 16:06 Waiting for Godot > wrote: > > Jolyon Maugham posted: “The starting point is Article 50. 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 ” >

  5. Conventional wisdom tells us that one of the purposes of the European project is to ensure lasting peace on the entire continent.

    Unfortunately, historic tensions between nation states continue to bubble away. Even Scotland comes close to reclaiming its long-gone existence as a self-governing entity (whilst continuing to favour membership of the European Union!).

    Arguably, the traditional weapons of European nation states have been replaced by legal niceties and import/export statistics. But the bottom line is still about national borders.

    If the Brexit vote can help to solve the 21st century conflict between nationalism and globalism, then it might have served a useful purpose.

    I know which side I am on, and I remain very hopeful indeed that Brexit will fail and that the federalisation of Europe will begin to gather pace.

  6. So a walk-out does not necessitate Brexit but the ending of the two-year window does.
    In UK law, we’d need to pass the Withdrawal Bill (or something like it) to sort our own legal mess out but failure to do so does not keep us in the EU – the passing of the two year window would eject us regardless of our internal squabbles.
    Of course, walking out would be hellishly damaging to the UK but some Brexiteers might go for it and hope to compensate with Minford-style economics.
    Tories faced with damaging their party and putting Corbyn in charge might opt to go along with Davis’ walk-out and to ride out the cliff-edge and disaster economics in the hopes that cutting corporation tax and upping the income tax threshold would win them sufficient favour to get through a 2022 general election – and maybe Corbyn would have moved on by then.
    As for the Withdrawal Bill – if it fails to pass and the exit day arrives, would the 1972 Act provide sufficient legal basis to say that we were still under all those EU regulations? i.e. the copy & paste bit of the Withdrawal Bill?
    If so, then I can see the opposition fighting it until past Brexit day but if not… would the Lords and opposition eventually be forced to pass the Withdrawal Bill just so we would have a continued transition period for legislation the day after?

  7. Unfettered power to the ‘discretion’ of crown minister Boris Johnson to execute a Brexit decision bypassing Parliament? An oxymoron surely? God help the UK at such a time! Una Sheehan, Dublin, Guardian reader since 1975 & 20 year sojourn in London.

  8. Fully agree with you. But what should MPs do for the Withdrawal Bill?
    Here’s a clear option that can succeed, in which your post is linked:

  9. It’s very clear to any balanced free thinking person that we no longer have democracy in this country. Our leaders are not listening to their people only to the extreme right wing manipulators that now run this country. Dark days indeed.

  10. Surely a Gina Miller II if clause 1 gets passed by a Parliament that’s lost its marbles?

  11. Personally, I think the constitutional validity of Theresa May’s Article 50 notification isn’t nearly as clear as most people seem to think.

    In the words of the late Lord Bingham (in his book, The Rule of Law) “respected and authoritative voices now question whether parliamentary sovereignty can coexist with the rule of law”. The circumstances which made Parliament the natural place for ultimate authority to lie, giving rise to the doctrine of parliamentary sovereignty, have changed massively. That doctine has now become an arbitrary convention whose strength rests almost entirely on a negative (the fact that no other body can claim to be the ultimate decision-making authority) and I don’t think it should be taken for granted that the courts would now treat it as overriding the requirements of the rule of law. So, if the rule of law is now part of our constitution, the question arises of whether Parliament and Government have fulfilled any duty of care they owe the public and future generations.

    In my view, there’s scope for a legal challenge on that basis but getting people to even consider the possibility is an uphill struggle. I did argue the case in a letter to the European Commission, thinking the EU might refer it to the European Court of Justice (to pre-empt any possibility of a future UK administration repudiating May’s notification, and to force Britain into having a proper debate about our constitution) but they see it as purely a matter for us.

  12. Regulations (Statutory instruments) are subject to Parliamentary scrutiny and can be voted down by MPs if they are so minded.

    SIs can be either affirmative resolution – where Parliament must expressly approve them or by negative resolution where MPs can call for a vote (“pray against”) which means that they can be voted against.

    So it’s a bit misleading to say that Ministers can go on a frolic of their own.

  13. Actually SIs are subject to whatever scrutiny the Primary legislation says. This legislation gives no Parliamentary scrutiny *at all*.

  14. Pingback: The fight for control is on, but it’s not the one that the Brexiteers were expecting

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