What follows is a draft clause for the Cooper/Letwin Bill which puts into the hands of Parliament the in extremis decision whether to revoke or No Deal.

*          Duty to seek the consent of the House of Commons to leave the EU without a withdrawal agreement

(1)        Subsection (2) applies if, at midday on the House of Commons sitting day immediately prior to the day when, by virtue of Article 50(3) of the Treaty on European Union, that Treaty and the Treaty on the Functioning of the European Union would cease to apply to the United Kingdom:

(a) no withdrawal agreement has been ratified in accordance with section 13 of the European Union (Withdrawal) Act 2018; and

(b) no agreement has been reached under Article 50(3) of the Treaty on European Union to extend the date at which the Treaties shall cease to apply to the United Kingdom.

(2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following.

(3)       The form of the motion for the purposes of subsection (2) shall be:

“the House agrees to leave the European Union without a Withdrawal Agreement.”

(4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.

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It is clear from the Business of the House Motion of 3 April 2019 that amendments made in the House of Lords can be considered in the Commons on their return.

What follows is an extended version of an article I wrote for the Guardian on 2 April 2019.

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When you break up with someone you love all you can see are the things that are not her. Not her jokes, not her smile, not her taste, and so on. Anyway, the last three years have been a bit like that, constitutionally speaking. The pervading all around is the country that we no longer are – pragmatic, competent, careful, vaguely sensible. All you see is poignancy.

I say this because of – as you do if you’re a lawyer – the Cooper-Letwin Bill. Those same qualities we once associated with the country were their very brand-values. Perhaps a bit boring – perhaps a bit careful – but y’know, competent. But sadly their Bill is everything we and they no longer are. Technically it is the Swiss cheese of legislation – full of holes. And even if you forgive them that it achieves little or nothing of substance. In fact it’s worse – it’s a dangerous distraction from a very real crisis for the country.

Let me explain.

What the Bill wants to do is give Parliament the right to force the Prime Minister to ask for an extension of time and the right to dictate how long an extension she should ask for. That seems like a sensible enough ambition, right? Modest but desirable. And there is an important balance to be found – if you’re trying to force legislation through Parliament in the face of a Government that you assume is hostile and a House struggling to agree on anything – between legislation that is sufficiently modest to attract the support of a majority and sufficiently ambitious as to actually be useful. That’s no easy balance – I know because I’ve tried and failed.

But this Bill gets that balance profoundly wrong. Let me quickly run through some of the criticisms.

The Bill was published today and the idea is that tomorrow the Commons will carve out Parliamentary time for it to pass through the Common and even – if all goes to plan – start its progress though the Commons. Let’s assume, ambitiously, it can clear the House of Commons on Thursday and the House of Lords on Friday and receive Royal Assent the same day.

The first stage mandated by the Bill is that, the day after the Act receives Royal Assent, the Prime Minister must move a motion inviting the PM to seek an extension of time until such date as she wishes (but with which MPs can disagree). Does the Bill envisage Parliament will sit on Saturday or Sunday? We don’t know. Let’s assume the motion is moved on Monday.

If that motion fails the Bill is defunct; that’s it. More damaging would be if it passes.

The Bill is silent as to when the PM has to ask for an extension of time. And if she will not contemplate extending beyond 22 May 2019 but Parliament has forced her to ask for one until 31 December 2019, what then? Could she sit on her hands? In practice she could.

But assume she makes a request the next day, Tuesday. The EU Council is not actually meeting until 10 April 2019. But it might agree to hold an emergency meeting and get back to us on Wednesday: “Yes you can have an extension – but we think you need time to get over your national psychodrama and so we’ll extend until when the transition period would otherwise have extended – 31 December 2020 – and only if you hold European Parliamentary Elections.” What then?

Well, the Bill is completely silent as to what happens if the EU imposes – as it has signalled it would – conditions for such an extension. Inexplicably the Bill makes no arrangements for dealing with that scenario. And even if the EU came back to us without any conditions for an extension – highly unlikely because EU law seems to require that we hold those elections – but just offering an extension to a different date to the one we’d asked for the Bill completely falls apart. All it says is that the PM has to move another motion in which the House again agrees to the Prime Minister seeking an extension of time – which makes no sense at all.

At this stage we’re at Thursday and we leave the EU without a deal on Friday. How on earth – in practice – do we resolve these unanswerables in two days? And what happens if the EU says a flat ‘no’ to an extension – or the conditions are unacceptable to Parliament? What happens in either of those worlds? The Bill maintains a lofty silence.

It’s not uncommon for Parliamentarians to put forward poorly drafted Bills. Legislative drafting is a difficult exercise. But the real problem with this Bill is not that it has some gaping holes in it. The real problem is that it’s a sideshow.

We’ve taken almost three years to fail to decide what we want – how are we going to move forward? If we want a referendum, what is that referendum on – a question that the confirmatory public vote motion turned a blind eye to? If Parliament won’t agree to a withdrawal agreement then the only options left are No Deal and Revoke – who gets to make that decision (a question this alternative to the Cooper-Letwin Bill seeks to answer)?

These are the real questions. The country we once were – and the Parliamentarians they once were – would have faced up to them. But the Cooper Letwin Bill is an awful, awful distraction. I suppose I should find it poignant. But instead, when I think of the consequences for millions of people whose lives will be profoundly damaged by No Deal and who are betrayed by the incompetence of those they trusted, it makes me furious.

What follows is a draft Bill to ensure that Parliament – rather than the Government – controls the key remaining questions governing the United Kingdom’s proposed departure from the European Union.

Please add your suggestions for drafting with comments. I will monitor those suggestions and make changes accordingly.

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European Union (Parliamentary Sovereignty) Bill

A

BILL

To

Make provision in connection with the United Kingdom’s proposed withdrawal from the European Union.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows:—

1          Obligation to seek an extension of time

(1)        Subsection (2) applies if, at midday on the second last Day before the relevant day, no withdrawal agreement has been ratified in accordance with section 13 of the Withdrawal Act.

(2)        Her Majesty’s Government shall immediately seek the agreement of the European Council under Article 50(3) of the Treaty on European Union to extend the date upon which the Treaties shall cease to apply to the United Kingdom

2          Duty to seek the consent of the House of Commons to leave the EU without a withdrawal agreement

(1)        Subsection (2) applies if, at midday on the last Day before the relevant day, no agreement has been reached (pursuant to section 1 above) to extend the date upon which the Treaties shall cease to apply to the United Kingdom

(2)        Her Majesty’s Government shall immediately put a motion to the House of Commons in the form set out in subsection (3) following.

(3)       The form of the motion for the purposes of subsection (2) shall be:

“the House agrees to leave the European Union without a Withdrawal Agreement.”

(4)        If the House of Commons does not approve the motion at subsection (3) above, Her Majesty’s Government must immediately notify the European Council that the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.

3          Duty to hold an Inquiry under the Inquiries Act 2005

(1)        This section applies where the notification given by the United Kingdom under Article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union has been revoked pursuant to section 2(4).

(2)        Where this section applies a Minister of Her Majesty’s Government shall cause an inquiry to be held under the Inquiries Act 2005 into the question whether a model of a future relationship between the United Kingdom (outside the European Union) and the European Union would be likely to be acceptable to the European Union and could reasonably be expected to have majority support in the United Kingdom.

(3)        Where the result of the Inquiry is that there is such a model, Her Majesty’s Government shall make all necessary arrangements for the holding of a referendum on the question whether the United Kingdom should leave the EU and negotiate that model or remain in the EU.

(4)        The Inquiry under subsection (2) shall commence within three months of any revocation pursuant to section 2(4).

4          Exit day in the Withdrawal Act

Section 1 of the Withdrawal Act shall not have effect until the earlier of:

(a)        the ratification of a withdrawal agreement in accordance with section 13 of the Withdrawal Act; or

(b)        the passing of a motion under section 2(3) above.

5          Continuing effect

The obligation in section 1(2) – and the consequential obligation under section 2 – shall apply on every occasion on which the condition specified in section 1(1) is satisfied.

6          Interpretation

For the purposes of this Act, references to:

a ‘Day’ are to a House of Commons sitting day;

the ‘relevant day’ means the day when, by virtue of Article 50(3) of the Treaty on European Union, that Treaty and the Treaty on the Functioning of the European Union would cease to apply to the United Kingdom in the absence of the entry into force of a withdrawal agreement;

the ‘Treaties’ are the Treaty on European Union and the Treaty on the Functioning of the European Union;

‘withdrawal agreement’ has the meaning given in the Withdrawal Act; and

the ‘Withdrawal Act’ means the European Union (Withdrawal) Act 2018.

7          Extent, commencement and short title

(1)        This Act extends to England and Wales, Scotland and Northern Ireland.

(2)        This Act comes into force on the day on which it is passed.

(3)        This Act may be cited as the European Union (Parliamentary Sovereignty) Act 2019.

This is the motion:

If, on the day before the end of the penultimate House of Commons sitting day before exit day, no Act of Parliament has been passed for the purposes of section 13(1)(d) of the Withdrawal Act, Her Majesty’s Government must immediately put a motion to the House asking it to approve ‘No Deal’ and, if the House does not give its approval, Her Majesty’s Government must ensure that the notice given to the European Council under Article 50, of the United Kingdom’s intention to withdraw from the European Union, is revoked in accordance with United Kingdom and European Union law.

It is sponsored by a cross party group of senior MPs from the Conservatives, Labour, SNP, TIG, Lib Dem, and Plaid Cymru.

And what it says, stripping away formality, is: if all other alternatives have fallen away, such that the only options left open to the United Kingdom are No Deal and Revoke the choice between the two is one that Parliament rather than the Prime Minister must make.

And it should command considerable cross-party support.

For Conservative MPs it makes good on the promise that the Prime Minister made to the House of Commons yesterday:

“unless this House agrees to it, no deal will not happen.”

For Labour MPs it offers the prospect of delivering on their 2017 Manifesto which stated:

And Labour has continued to ask the Conservative Party to rule out No Deal.

The Motion should also be acceptable to supporters of the current draft of the Withdrawal Agreement – or some other version thereof such as Norway + or Labour’s preferred withdrawal agreement. It leaves those options available if Parliament approves them – it only applies if they fall away.

Nor does it preclude a general election. Because it applies on the penultimate day before exit day – which is a moving target that depends on what we are able to agree with the EU Council – it leaves the door ajar to a General Election.

But most of all, it should appeal to democrats. The decision of generational importance for the United Kingdom – between Revoke and No Deal – ought to be one for the representatives of the People in Parliament, and not for the Prime Minister, still less the Prime Minister of a minority Government. And this point is all the more important when one appreciates that Parliament has previously voted to reject No Deal.

No constitution founded, as ours is, on the bedrock of the supremacy of Parliament, should contemplate a Prime Minister taking a decision such as this in the face of a clear majority of MPs.