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Kingdom under Article 50(2) of the Treaty on European Union of its intention to withdraw from the European Union has been revoked pursuant to section 2(4).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.
Thanks. The sitting days point, in particular, is a decent one but it’s quite difficult to draft for Parliament to do stuff on day x if you don’t use sitting days and – as next week makes plain – I think it’s pretty clear that parliament will sit if it anticipates a crisis and if it’s not scheduled to sit then the obligations in the Bill are triggered sooner.
Politically I think a conditional revocation would be hugely unpalatable – even if one assumes that such a thing is possible.
I think the tidying up can safely be done in other legislation. The more complex the Bill the less likely it is to give Parliamentary approval.
As everyone must now know – even if they didn’t before – there are two stages in moving onto a different relationship with the EU. Firstly, withdrawal from the EU under Article 50, and then and only then negotiation and agreement of a different future relationship. It seems to me that a referendum on a question of whether we should leave the EU (with who knows what kind of Withdrawal Agreement) in order to be able then to seek to negotiate a model that (before even giving notification of withdrawal) we thought might prove acceptable to the EU gets us to not much better a place than we are now. The problem would remain that the EU will say that it will not discuss anything about withdrawal even informally until a notification under Article 50 is made, and that no binding agreement on the future relationship may be entered into until after withdrawal itself.
It might be claimed that our experience of the present attempt at withdrawal gives sufficient clues as to what might be acceptable to the EU both on withdrawal agreement and future relationship. But on the likely timescale of a comprehensive Inquiry, all of the key individual players in the EU whether heads of government or Commission officials might have changed, and indeed the world itself might be a different place.
In a rational world, everyone involved would discuss, negotiate and agree a new relationship and *then* a withdrawal agreement to flow from that to ensure a smooth transition from the old to the new. Unfortunately, Article 50 isn’t structured like that.
Where there’s a will there’s always a way and as far as I can see there isn’t (and never has been) any *legal* barrier in the Treaties to informal discussions or even the reaching of Council conclusions (political agreement) on a future relationship and associated withdrawal arrangements in advance of an Art.50 notification. As a crash-out would be disruptive and damaging to everybody, one would think this would be (and would have been) to everyone’s advantage, but unfortunately the EU rather dug itself in against that right from the start.
The revocation should be unconditional as specified by the CJEU in the Wightman case [C-621/18]:
If the House of Commons does not approve the motion at (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 *unconditionally and with immediate effect*.
Good evening Jolyon, You invited comments. Finally having mastered the system I send the substantive comments.
Add as Section 3(3A).This motion shall be not be deemed approved unless it receives the support of at least 50% of the votes of MPs eligible to vote.
Section 3(2) after “support in” insert ”England and each of the devolved units of”.
Section 3(3) add a new sentence: ”If the referendum is to be binding on Parliament, the vote to leave the EU shall not be adopted unless it commands the vote of at least 40% of the eligible electorate of the United Kingdom. “
Hi Jolyon, since you have invited comments…
I’m concerned that the Bill as currently drafted carries a real risk of inadvertently causing a No Deal Brexit, for the following reasons.
The necessary consequence of the Government revoking the existing A50 notice under clause 2(4) of this Bill would be:
(1) the holding of a mandatory public inquiry, to commence within 3 months of the A50 revocation, examining whether a particular model for the UK leaving the EU would likely to be acceptable to the EU and could reasonably be expected to command the support of the majority of, presumably, the public in the UK [clause 3(2) and (4)]
(2) if the public inquiry identifies such a model, the holding of a fresh referendum pitting that version of Brexit against Remain [clause 3(3)].
The Bill as it stands doesn’t specify what the effects of such a referendum would then be. One would hope in the interests of avoiding further confusion, recrimination and abuse that the effects (and potential appeal mechanisms in the case of fraud or other irregularity) would be set out explicitly in a separate Referendum Act, if not in this Bill. But either way, for better of worse – given where we are now, and not least given the mandatory wording of this very Bill – there would be an overwhelming political and public expectation that the result of any further referendum held pursuant to this Bill must be treated as binding.
As you know – and as another commenter has pointed out here – the ECJ has held that to be lawful, revocation of an A50 notice must be “unconditional”.
In fact, in the Wightman case the ECJ went further and specified that for an A50 revocation to be unconditional in this sense, its purpose must be to confirm the EU membership of the member state concerned under terms that are unchanged as regards its status as a member state, thus bringing the procedure of that member state’s withdrawal from the EU to an end.
Now I would hope that the ECJ would interpret this in a fairly flexible way. But the problem is that right now we simply cannot be sure. And it seems to me there is a very real risk that the ECJ would refuse to accept that an A50 revocation issued under the scheme specified in this Bill is “unconditional” in the requisite sense.
Any A50 revocation under this Bill will have been lodged by a reluctant Government in the very final hours before the UK is due to crash out of the EU without a deal, with the express purpose of ramping up its search for a more popular model for leaving the EU and – if a majority of the people agree – enacting one such model in order to leave the EU after all. There is an obvious risk that the ECJ would say that the purpose of such a revocation notice is not to confirm the UK’s continued EU membership on unchanged terms and bring the procedure for the UK’s withdrawal from the EU to an end, but rather to buy more time and identify whether there is a way for the UK to proceed with leaving the EU but on terms more favourable and popular than those the UK government has been able to negotiate so far.
Now the Wightman judgment leaves a whole load of crucial questions unanswered. For example, questions about how, across what timescale, and by reference to which individuals the “purpose” of a purported A50 revocation is to be identified and assessed. Or questions about what the legal consequences would be of issuing a purported A50 revocation only to then issue a fresh A50 withdrawal notice whose possibility was explicitly contemplated at the time of the purported A50 revocation: if the attempt to issue a fresh A50 withdrawal notice were found to call into question the “unconditional” nature of a prior revocation notice, what would the ECJ then treat as invalid – the attempted revocation? or the attempt to issue a fresh A50 notice?
None of this is clear.
But this legal uncertainty is not a reason to dismiss this can of worms. It is a reason for being even more cautious before advocating the revocation of the existing A50 notice on any basis that explicitly envisages that the UK may yet proceed to leave the EU in anything but the distant future, or that the UK may yet proceed to leave the EU for anything other than new and currently unforeseen reasons.
One very real possibility, if the ECJ were to find that a purported A50 revocation lodged under this Bill is not “unconditional”, is that the purported revocation would be treated in legal terms as a nullity: i.e. as non-existent and as having had no effect whatsoever. If so, it’s inconceivable that the ECJ would make such a determination before the deadline for agreeing a withdrawal deal with the EU under the existing A50 process would have expired (the purported revocation itself having been lodged only hours before the UK was due to crash out of the EU). That being the case, we could well find, after the event, that the UK had left the EU on the Bill’s “relevant day” without having agreed a deal and without having validly revoked A50. A No Deal Brexit would inadvertently have become a fait accompli.
I don’t want to be a naysayer. I think your public attempts to find a workable way through the unholy mess that is Brexit while stressing the fundamental importance of the rule of law are both valuable and brave, and I feel rather ridiculous questioning your analysis given you are living and breathing the law around A50 in way that I am not.
But I believe I’ve identified a very genuine and foreseeable risk. And if the last 3 years teaches us anything, it’s surely the importance of thinking with the utmost care through all the foreseeable risks of a given course of action – however well intentioned – before adopting it as a means of solving the problems we are currently faced with.
Hi David, Thanks for that thoughtful comment. There is of course a balance to be struck between (1) removing all Wightman-style risk and (2) making revocation less democractically unpalatable to MPs (necessary to garner consent for the Bill) and addressing the political problems it could cause afterwards (necessary for the management of our democracy). Obviously I am pretty familiar with how you assess (1).
Thank you Jolyon for your gracious and candid reply.
And certainly, I appreciate that your Bill is catering specifically for the scenario that the UK is hours from crashing out of the EU without a deal, and with no other options forthcoming. In that scenario, then I can see that activating the scheme set out in your Bill – even if it does not remove all Wightman-Style risk of accidentally entrenching an No Deal Brexit despite the hope A50 has been successfully revoked – might well be preferable to simply letting the last few hours on the clock run out when we know for certain that will result in a No Deal Brexit anyway.
(I say “might well be preferable” for the sole reason that purporting to revoke A50 only for the ECJ later to reveal that the revocation was invalid – if that is what ends up happening – is likely in itself to create a whole new species of chaos, quite additional to the chaos that a “known” No Deal Brexit will unleash, by retrospectively throwing into doubt the legality of countless measures taken in the meantime by states, companies and private individuals who, wrongly, believed that the UK was still in the EU and that UK citizens were still EU citizens).
I also get it that there is a political trade-off here. And I recognise that there would be a political trade-off regardless of what steps one proposes in an attempt to avoid a No Deal Brexit.
But one crucial advantage of recognising that your Bill is not free from the risk of inadvertently giving effect to a No Deal Brexit is that doing so enables everyone to better weigh up the pros and cons of different strategies for seeking to avert that outcome.
I think you are entirely correct to say that any legislative mechanism for averting a No Deal Brexit has to include provision for a second referendum in order to secure the necessary political and public support. That being the case, then why not propose a Bill that does this in a way that minimises even further the risk of offending against the Wightman-ruling and inadvertently triggering a No Deal Brexit?
It seems to me that one could achieve this by amending your Bill so as to tie the mandatory inquiry and referendum not in the first place to the A50 revocation (which risks imperilling the validity of the revocation), but to the clause 1(2) requirement that the Government must seek an extension of the current A50 process. In other words, the extension request must be for the purpose of enabling the Bill’s inquiry and the subsequent referendum (which should be made mandatory, not conditional upon the results of the enquiry) to take place, and the extension requested must be of sufficient duration to ensure this.
That way you avoid the Wightman problem and the risk of triggering a No Deal Brexit entirely.
Yes, I understand that the difficulty with extension requests is that they are ultimately in the gift of the EU27, not of the UK Parliament. But the EU27 have been pretty consistently clear that they would grant a long extension in order to enable the UK to carry out a second referendum, and they would surely be even more likely to support this if the UK shows it is serious by providing for a public inquiry to precede such a referendum along the lines you propose.
As to the democratic palatability of such an approach… Well, if you can’t persuade sufficient Parliamentarians to back an extension of A50 for the purposes of holding a second referendum, then you will never persuade sufficient Parliamentarians to back a revocation of A50 for the purposes of holding a public inquiry that might result in a second referendum.
So this seems to me to be a strategically more cogent approach to the one currently taken in your Bill, being one that is at least as likely to gain the necessarily political traction, whilst entailing less risk
In the vanishingly little amount of time that is now available, wouldn’t it be better for Parliamentarians and activists to throw their efforts in to such an approach?
I certainly agree as a matter of principle that the inquiry and possibly referendum could take place during an extension (and it’s something I’ve been thinking about https://twitter.com/JolyonMaugham/status/1113455312856653824) or after a revocation (and indeed an inquiry could take place during a transitional period).
But at the point in time at which you get to the revoke question you have pretty much run out of time to seek an extension. That’s the issue.
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I don’t know if you’re still monitoring this, Jolyon, but I suggest that, while an inquiry might be acceptable to MPs, it would probably be seen by much of the population as a way of sweeping the whole issue under the carpet. I certainly can’t see it defusing the ‘betrayal’ narrative that many leavers are currently working themselves up with. For that, there needs to be some process that commits the country to real change, but leaves open the possibility of both leave and remain.
This means recognising that Brexit may not really be about the EU; it might simply be acting as a focus for deeper grievances which are rooted in a widespread sense of powerlessness – grievances that can only be put right through fundamental reform of our political systems and processes. However, ordinary MPs, being elected primarily to oversee all the normal operational aspects of government, are not necessarily the right people to determine what needs to change constitutionally.
What I’ve been advocating is a separately-elected Constitutional Parliament with time-limited legislative powers on a narrow range of structural issues (including the issue of how sovereignty should be shared between different levels of society, both within and beyond the nation state). It would be a major constitutional innovation but, if your bill mandated that rather than an inquiry, I think there’d be no danger of the ECJ seeing it as just a delaying tactic, nor of the public seeing it as a betrayal of the referendum. Many MPs would no doubt resist giving up some of their own sovereignty but I think many would recognise it as a course of action that would both honour the referendum and offer a way for the current divisions to be healed.
Even if we do hit the deadline, I don’t think you should assume the matter is settled (though we’d certainly get the short-term turmoil). I think there’s a strong possibilty, once the issue is no longer live within the political/administrative sphere, that the withdrawal decision might be overturned by the courts on the grounds that it hasn’t been arrived at with the integrity, care and attention that our constitution requires – assuming, of course, that someone has sufficient motivation, resources and grasp of the arguments to bring a challenge. (To forestall an obvious objection: a challenge to the 2017 provisional decision might be deemed out of time but since the definitive decision hasn’t even been made yet … )
roderickdunnet suggested: –
“Section 3(3) add a new sentence: ”If the referendum is to be binding on Parliament, the vote to leave the EU shall not be adopted unless it commands the vote of at least 40% of the eligible electorate of the United Kingdom.”
If that were adopted I would add “..United Kingdom and to include British nationals resident in EU”.
Your suggestion rightly addresses a constitutional flaw which admitted the new element of a referendum without working out the implications. But this flaw is not generally admitted. Solution could be to provide that the proposed post-revocation public enquiry should address the question whether a constitutional revision is needed.
Your second point about possible post-exit legal challenge is no doubt receiving the attention it deserves. The immediate question is what may be done in the next four days to strengthen the case for judicial review after exit.
Roderick Dunnett: “The immediate question is what may be done in the next four days to strengthen the case for judicial review after exit.”
I’d say the immediate priority should be to try and make sure the EU take the possibility seriously – because they’re in a position to pre-empt it, either by asking the courts for a judgment themselves or by insisting that the UK government does, as a condition of an extension.
They’ve been aware, since early February, of a letter I sent to the UK Cabinet Office, at the beginning of January, questioning the validity of the decision and pointing out the potential for a successful post-deadline legal challenge – and they know that, as of 8th March, those questions still hadn’t been answered. I reminded them then that over 60 million EU citizens will have their citizenship revoked and suggested they have a responsibility not to let that happen while there are unanswered questions about the legitimacy of the process. But I know they’re not keen to do anything that might be seen as interfering so, if I’ve been the only one making this case, they might well think it’s safe to ignore it.
For the record, the argument I made in my letter to the Cabinet was that, firstly, it was irrational of the government to interpret the referendum as an instruction, rather than as a demonstration that the public was in two minds on the subject, and their interpretation was therefore an unlawful basis for a decision; and secondly, that the referendum provided no way of knowing what proportion of leave voters were simply voting against the status quo, rather than being genuinely concerned about our membership of the EU, and the government had therefore been negligent in failing to thoroughly explore whether some other, less drastic, course of action might have satisfied a majority on both sides.
I didn’t make those arguments as formally as a lawyer would have done, but I think I made them clearly enough for a court. What I didn’t do, though, was make the distinction between the provisional and definitive decisions that I made above, so they may be discounting the possibilty, thinking that any challenge will be dismissed as too late.
What exactly are you seeking to judicially review and why?
The referendum legislation is Primary law, the Notification was under Primary law (following Miller) the Withdrawal Act is Primary law and so on. Don’t forget that Parliament would have been within its rights to exercise Art 50 without a referendum and would have been within its rights to notify withdrawal even if the [advisory] referendum had gone the other way.
PeterB “What exactly are you seeking to judicially review and why?”
The Executive’s decision to complete the process of taking the UK out of the EU, rather than rescind the Article 50 notification and initiate a proper debate about whether some other, less drastic course of action might satisfy a clear majority of the public – on the grounds that the original decision to withdraw was not arrived at with the care and attention our constitution requires.
After the Miller judgment, legislation was needed to give ministers authority to take the decision to initiate withdrawal, but it didn’t relieve them of the obligation to act rationally, responsibly and with due diligence. Parliament itself has no executive competence; it has effective power to appoint and dismiss the Prime Minister but, as things stand, it has no power to engage directly with external powers. So it couldn’t have notified withdrawal itself – and probably wouldn’t have had the power to compel ministers to do so in violation of their responsibilities to the wider public. The actual decision to leave is the government’s, not Parliament’s.
If necessary, judicial review could probably also be sought regarding the EU’s decision to accept the constitutional validity of the UK government’s decision to withdraw, without ensuring that any doubts about it had been resolved.