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.
European Union (Parliamentary Sovereignty) Bill
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Kingdom under Article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union has been revoked pursuant to section 2(4).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.
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.
Stephen Hammond objected to the public inquiry as a “quasi-judicial process”. He said that was a job for Parliament. He would have supported the proposition otherwise.
EU meeting on 10/4/19. Change date for request if ND to day before (9/4/19) so they can discuss during meeting?
Stephen Hammond did not like the public enquiry thought it was a job for Parliament.. https://www.stephenhammond.net/news/indicative-votes-1st-april
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The question isn’t whether he likes it or not but whether more are put off than attracted by it. But, honestly, if they vote against it for that reason we’ll all of us get what only they deserve.
I’d considered that – but if the Bill passes they will know it’s coming anyway. And the longer back you plan from e-day the more difficult it is to get support.
Question re Section 3(2) inquiry and 3(3) referendum – it seems to presuppose that the result of the inquiry is that the favoured model is still Brexit in some form. What if – due to sanity breaking out, passage of time and recognition of the real constraints – the inquiry concludes Remain is the only viable option?
Typo – end of 2(4) – insert a comma after “from the European Union”
Observation: in the (unlikely) event that the Government revokes A50 of its own volition – that is, not pursuant to section 2(4) – then there would be no duty to hold an inquiry.
Do you not think that there is a strong case for an action before the CJEU brought under whatever article of the TFEU which may be appropriate, to the effect that the EU Council and the EU Commission have failed in their duty to implement the negotiating requirement of article 52(2) insofar as the obligation to conclude a framework agreement is concerned. The Political Statement is of no Treaty value, and art 52(2) in, effect states that the document setting out the post-Brexit relationship has to be of that order.
I appreciate that the Irish Backstop issue remains whole,
However, that remains a constitutional issue between the Republic of Ireland and the United Kingdom, effectively as from 1918, It therefore falls outside the EU Treaty competence as it is taken as a sine qua non of the application and the methodology of application of the TEU and the TFEU which are subordinated to that constitutional imperative.
It is more thaa arguable that both the United Kingdom and the Irish republic were constitutionally roped into each other in joining the EC in 1972 and then the Lisbon Treaty, which is subject to that constitutional imperative. The fact is that the Good Friday Agreement had to be enacted as a constitutional change for both the United Kingdom and for the Irish Republic of which the Border Poll is but a part. Ireland introduced the concept of an Irish Nation and extended the right of those living in Northern Ireland to take up Irish as well as British Citizenship.
(1) There is a dilemma. The more that a revocation is made acceptable to Leavers (by saying we are continuing with Brexit in some sense) the less acceptable it is to the EU given the sincerity clause in the ECJ judgment. It is not obvious to me that with the “inquiry” and possible further referendum that is proposed our revocation would fall within the terms of the judgment. It would obviously be unfortunate to revoke and then have the revocation treated as void by ECJ on the application of Nigel Farage, say. But you are the lawyer, not me.
It is also not obvious to me that the inquiry would mollify Leave voters (referendum victory, told it would be implemented, both parties at the general election, direction of UK politics for past 3 years, more than half of Leavers want No-deal, &c &c). So I wonder what your further plan is to make a revocation politically acceptable to those who would lose from it?
(2) The EU have said that for an extension they would wish to have a plan. No plan, no extension. The leading candidates for an acceptable plan seem to be a referendum or general election. Given the splits in the two main parties, a general election is pointless as a way or resolving Brexit. That leaves a referendum. Should Clause 1 call for a plan? Should it specify that the referendum is that plan?
Excellent stuff. My only concern is that clause 3 could cause the EU27 to wonder whether the UK would be revoking the Article 50 notification in good faith. One solution could be to strengthen the reference to “majority support”. For example, it could refer to majority support in all the constituent parts of the UK. Or it could refer to majority support among all UK citizens aged 16 or above and all EU27 citizens resident in the UK. That would kill two birds with one stone, since it would also remedy a flaw of the 2016 referendum.
The bill privileges Remain as the default option. What it should do instead is provide a mechanism for Parliament to choose the precise option it wants to pursue at any given time. I suggest using Single Transferable Votes in Parliament, requiring MPs to rank their preferences. The least popular is eliminated, and their votes transferred to their second preference. And so on until a majority is achieved. That way you get a single, final result which could be Remain, No Deal or anywhere on the spectrum in between
First quick reading gets a thumbs up from me. Will revisit again later when I’ve met my deadlines. Thanks for your hard work!
First, very quick reading gets a thumbs up from me. Will revisit after 5pm (damn deadlines here). Thanks for your hard work!
It doesn’t privilege Remain as the default option. It gives that choice to MPs. That’s exactly what clause 2(3) does.
No party wants to be responsible for revoking Art 50 as political suicide. Shows democracy isn’t like they sell it to the public “ Westminster system “
If no public inquiry involved I would support ( we have seen with our own eyes over the last 3 years the incredible incompetency ) my Mrs May and Co
To waste more public money would be just plain wrong after what’s been wasted with this Brexit filibustering that’s been played out in front of our eyes.
We know what a public inquiry would say
Leave quote “ Taking back control is a careful change, not a sudden step – we will negotiate the term of a new deal before we start any legal process to leave “
May triggered article 50 to win votes we are 8 working days away and we have no deals in place. It’s abeen shambolic to say the least.
Revoke article 50 or let the people vote on Mays deal not Parliament.
Think this will happen-
May says with labour vote for my deal in Parliament, we will have a people’s vote on it
my deal v stay in the EU
Call a GE
People who own these lands
No one has egg on their face bar leave voters 3/4 isn’t bad.
Clause 2(3) offers MPs the chance to choose No Deal, but that is an unattractive option. So it does privilege Remain.
I’m afraid that’s just not right. Clause 2(3) is only operative in a world in which there is no withdrawal agreement and no extension. In that world the only options left are revoke or no deal. And the Bill puts the choice between them to MPs.
Re Hammond you’ve got someone towards the more sensible end of the spectrum and if he’s got a problem with particular sections it might be better to rethink 😉
Indeed, it is only operative in the world where there is no withdrawal agreement and no extension. But as of now, the EU wants the UK to sign a withdrawal agreement and it is happy to consider reasonable requests for an extension, but Parliament is unable to agree what it wants because of its antiquated binary decision-making procedures. It is the lack of an appropriate procedure that prevents Parliament from exercising sovereignty. Hence, my suggestion to use STV. To be extra sure the resulting decision is the least bad, you could require a 2/3 majority. STV will give you that.
I don’t necessarily disagree but that’s a different piece of work for a different Bill – or indeed for Parliament.
Notice given under 2(4) must be unequivocal and unconditional.
Seems to me 3 may conflict with that obligation.
I understand the concern. I am very close to the point – I was the driving force behind the Wightman case – and have thought very carefully about it. I’ve also discussed it with other leading EU lawyers and I believe it is ok.
Do we need a definition of withdrawal agreement? Below from Withdrawal Act:
“withdrawal agreement” means an agreement (whether or not ratified) between the United Kingdom and the EU under Article 50(2) of the Treaty on European Union which sets out the arrangements for the United Kingdom’s withdrawal from the EU.
I think this is great stuff – all the following comments are from a legislative drafter, so may seem highly pedantic, but are not intended critically! And I defer to others on points of constitutional and EU law.
s.1(2) and 2(1), not sure one can “extend” a date, perhaps “defer”?
s.2(4) and elsewhere e.g. 3(2) and (3), you have “shall” for the mandatory provision whereas in 1(2) you say “must”. (Not important which, but consistency of expression prevents unnecessary arguments about interpretation…)
s.2(4) comma after “Union”
s.3 heading, (3) and (4): no cap. for “Inquiry”?
s.3(2): I find this provision generally rather convoluted; and it’s a neat idea, but is this a possible topic on which an inquiry could realistically reach a view? Should this provision say e.g. “a model….WHICH would be likely to be acceptable…” (my caps. by way of emphasis)? If so does the actual model have to be produced by the Min. to the inquiry, or is it the inquiry’s job to come up with the model? (If there isn’t a model, the provision seems too abstract to be useful.) How is “majority support” to be defined? Could an inquiry really reach a conclusion about the minds of voters?
s.3(3) needs a comma after “model”, and I think “we” should be “the United Kingdom”?!
s.3(4) ought perhaps to refer to 3 months after the notification is given to the European Council under 2(4), rather than the revocation (in case of arguments that the revocation isn’t legal/effective)?
And I believe in most English Acts, the interpretation section is called just that i.e. Interpretation?
In the motion in clause 2(3): “the House approves *the decision* to leave the EU without a WA”.
Are you saying that Parliament has already made such a decision and you want it to be re-confirmed? Or are you just assuming that the Government will have decided to leave with no deal when the time comes?
I disagree with the general interpretation regarding the commencement of section 1 of the Withdrawal Act. (See: http://purehearsay.blogspot.com/2019/03/commencement-provisions-and-european.html)
Either way the definition of “exit day” needs to be changed as lots of other changes occur on that date. I would suggest aligning it with EU law.
4 (1) Section 20 of the Withdrawal Act shall be amended:
(a) in subsection (1) by the substitution of the following definition for the definition of “exit day”:
“‘exit day’ means a period of 25 hours beginning at the time and date on which the Treaty on European Union and the Treaty on the Functioning of the European Union cease to apply to the United Kingdom pursuant to Article 50 of the Treaty on European Union;”
(b) by the deletion of subsections (2), (3), (4) and (5).
(2) Section 25 of the Withdrawal Act shall be amended by the insertion of the following subsection after subsection (1):
“(1a) Sections 1 to 4, and 7 come into force on exit day.”
Self-correction: STV will only guarantee you a majority not a super-majority of MPs, but a majority is enough to pass.
I get the intent of the bill, but I also think the inquiry is not needed.It’s not much of a sop to leavers, and it has a kind of quasi-judicial sound to it, which might frighten them.
Parliament can always re-issue A50 if it wants to go through this again.
I’m assuming that Section 2(3) motion can be won or lost by a single vote? Can Parliament or Government request a second attempt? Section 3(4) gives a clear time frame to start any inquiry – I’d also like to know the date when a new model can be presented in Parliament. Also, I’m assuming this Bill can be re-used under section 5 (but only if we are still in the EU) if that model gets seriously challenged/managed poorly leading to the situation we are seeing today? I don’t know how I feel about that – it may be rational but it feels quite humiliating to continue to ask for further extensions. I would also like a strong caveat that if we revoke Art 50 – then we become a very strong voice in Europe and we start to challenge aspects of the EU ( e.g. racism and homophobia) and the UK becomes (by sovereign Westminster legislation) obliged to implement EU law to protect our resources and social security benefits system.
I want to revoke – but I want to revoke with clear red lines of action.
Neil has a strong point about speed and resolving questions with more than 2 possible answers: at any point where these are required, the Bill needs an STV amendment. (I had expected the indicative voting to use STV because the purpose of the process screams for preferential voting, which would have produced a majority consensus already and we would not be in the fix we’re in now).
Your Bill amends the Parliament Act with a simple motion in just the Commons that carries the force of law by itself? To me, no problem except it needs a dedicated paragraph in the preamble (this Act amends/repeals the following)?
Thanks – I’ve made that change
Really helpful – thank you so much. I’ve considered all and adopted many!
Good point. Thanks Jon.
Could you explain more slowly, please Philip?
Is there any scope to include “including making both the detail of said model and related impact statements/analyses publicly available” within 3(3)?
Ensuring the public is fully informed would remove many questions over the proposed referendum result.
Replace “remain in the EU” in 3(3) with “stay in the EU”.
Stay has better connotations than remain.
I have an issue with 2(3).
Currently this is for a minister to do.
They must act in accordance with the NI act.
A minister failing to change exit day is exercising a power which probably fails that test.
So is it not safer to give the authority to a minister. rather than have explicit wording.
In this way, if leaving with no deal is found to be in contravention of the ‘withdrawal act’ that decision has been made by a minister under the powers they have under that act, and they retain that specific responsibility.
See copy as a tweet for images which give the precise words in the withdrawal act I am referring to.
Your section 3 is written so that were it enacted we might fall into the same trap as now.. ie the proposed enquiry dreams up an unworkable solution that the EU would find impossible to agree. Thus.. would be likely to be acceptable to the European Union and could reasonably be expected to have majority support in the United Kingdom………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. Could place us in the exact same place as today. I suggest it’s made clear that the EU confirms that such a proposal would be acceptable. BEFORE we have any referendum on it.
As ever, excellent work.How can this be modified to protect Gibraltar? UKGov has thrown the Gibraltarians under a bus, despite the 98% remain vote.
Just some thought on times and dates. Apologies if this is too much nit-picking.
I think the intended timetable is this (in this instance):
10th April – section 1 / second last Day before relevant day (extension)
11th April – section 2 / last Day before relevant day (revocation)
12th April – Friday – Commons may not be sitting – time for notification to be delivered to EU Council.
I wonder if there is scope for ambiguity or willful misunderstanding of the definition of the relevant day. As it stands, the UK leaves the EU at midnight CEST on the 12th. But does that mean the UK leaves the EU last thing on the 12th or first thing on the 13th – in CEST terms. A perverse interpretation might just (somehow) make the relevant day the 13th. If the commons sat on the 12th then there is potentially scope for the process to happen 24 hours later then intended and for the notification to be late.
Also, I assume the term “day” in the definition of “relevant day” does not mean a house of commons sitting day, as it is not capitalised? Might it be better not to define “Day” at all and just use HoC sitting day in full?
Should “relevant day” be capitalised – to show it is defined?
So maybe something like this would remove the potential ambiguity:
the ‘relevant day’ means [the last day that is a working day for the European Commission during which for the whole day], 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 [continue] to apply to the United Kingdom in the absence of the entry into force of a withdrawal agreement;
Thank you for drafting this, Jolyon.
Minor typographical suggestions re section 2(4):
……… insert “subsection” in line 1 before “(3)”
……… insert “on March 29th 2017″in line 3 after “United Kingdom”
Section 2(4) would then read as follows:
“(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 on March 29th 2017 under Article 50(2) of the Treaty on European Union, of its intention to withdraw from the European Union, is revoked.”
Like ajusher, and for the same reasons, I would like to see something in 3(3) that ensures that the details of the model, and particularly the impact assessments, are made public well before a referendum.
Thank you for all your work.
1. The obligations are directed at HMG do you want to name a particular responsible person (may be easier to enforce)? Suggest PM but a SoS might work (foreign sec for example)
2. Re enforcement: if HMG does not act given time is short what is the enforcement mechanism? (Mandamus order?) . That will take time – can anyone think of substitute enforcement mechanism eg provide for a power for another person to either seek extension and / or revoke? (As we know this PM will litigate even pretty hopeless cases and always the clock is ticking).
3. If there is any arguement about whether conditions are met for triggering 1(1) or 2(1) who decides? I can see there could be room to argue about a fudge around extension dates for 2(1) for example less so on ratification in 1(1) but who knows…and again little time to litigate. Can we say HoC can decide this by laying a motion? Or another third party? Or could we add that the condition is triggered where there is any reason to doubt there has been a valid extension agreed for example?
4. I would apply the bill to the Crown for avoidance of doubt. (Yes I know it is directed at HMG but still).
5. Do we want to be tied to sitting days in the House? Given the continuing duty clause might a crisis arise over recess if the conditions are trigged then there may and need to be a recall of the house but they won’t bectrigged if they turn on sitting days.
5. I have similar issues with cl 3 as others but you probably have better understanding of the politics of why it is included so I will leave it there(!)
It might be a good idea to have 1 (2) specify that it must be an extension beyond the European Elections.
This may serve to narrow its support but without it I think we arrive at a no-deal vs May’s deal scenario and no 2nd referendum.
Is there any reason why TM could not serve notice of revocation of Art 50, but make the coming into effect of that notice contingent upon the Commons NOT voting in favour of the withdrawal agreement by a particular date? MPs would then face a simple binary choice, accept the negotiated withdrawal agreement or remain, which would focus their minds on the fundamentals.
The House has made it very clear that no deal is unacceptable. The EU will not reopen negotiations on the withdrawal agreement. Revoking Article 50 is the fail safe option; the UK could conceivably serve a further Art 50 notice, but it cannot easily rejoin the EU if it crashes out.
I am not a constitutional lawyer, but it strikes me that revoking Art 50 differs significantly from invoking it. Revoking does not impact existing rights, which was the fundamental reason why the Supreme Court decided in Miller that Parliamentary approval was needed to serve notice of withdrawal. Surely, therefore, revoking Article 50 remains a prerogative power?
I can’t see the EU challenging the constitutionality of a notice served under prerogative power, neither can I see the EU rejecting it; to do so would effectively be saying that the PM of the UK was not acting in good faith. Ultimately it would take a decision of the ECJ to decide that a notice to revoke was not given in good faith, and I can’t I see anyone from the UK easily getting a referral from either the Supreme Court or the Inner House; we all know how difficult this is in the face of Government opposition.
The enquiry should have an end date. Also, the Withdrawal Act has already been used to repeal some legislation (SI 2018/808) which should be reversed.
Thanks. Have taken your first in. Very grateful.
There’s a balance to be struck between what might be politically acceptable at this stage and what might be desirable at a later stage.