Brexit is likely but not inevitable, argues Steve Bullock. He sets out the steps Parliament could take to halt the process, providing that – as senior EU figures have signalled – Article 50 can be revoked.
Only nine months ago the government was still talking about no deal being better than a bad deal. MPs were fighting for a meaningful vote on the Withdrawal Agreement, and were being told that voting against it could only ever mean leaving the EU without an agreement (making such a vote in no sense meaningful). Those, like me, who believed Brexit could still be stopped were dismissed by many as cranks. Brexit, we were told, was inevitable. Get over it.
Well, it turns out Brexit isn’t inevitable. Parliament can, if it wishes, stop it, or create the opportunity for it to be stopped. It may not yet be likely, but it is possible. Here’s how.
Assuming that a Withdrawal Agreement and an accompanying joint declaration on a framework for a future relationship is negotiated by the October European Council, the UK Parliament will then be asked to debate and vote on a motion or resolution approving it. This is the ‘meaningful vote’ that the government promised Parliament. If the recent House of Lords’ amendments to the EU Withdrawal Bill are agreed by the House of Commons, the motion or resolution would not only be a politically binding decision, but a legal requirement for the government to be able to conclude the Withdrawal Agreement. Even without this Lords amendment though, it would be almost impossible for the government to conclude the agreement against the stated wishes of Parliament, not least because government will rely on its support for the other pieces of Brexit legislation it needs to get through.
Much of the discussion has been around what would happen if the House of Commons voted against the resolution. Until recently, government ministers argued repeatedly that the consequences of this would simply be that the UK left the EU without a deal on 29 March 2019, two years after invoking Article 50. The same ministers have now accepted that this is not the only option open to Parliament.
A recent paper by Raphael Hogarth and Hannah White for the Institute for Government explains why. It points out that Parliament will be able, if it wishes, to amend the motion on the Withdrawal Agreement and, crucially, it will be able to use those amendments to place conditions on its approval. This is where the key opportunities lie.
On the one hand, Parliament could require the government to seek to extend the two-year Article 50 period, renegotiate aspects of the Withdrawal Agreement, or even withdraw Article 50 notification entirely. The EU27 are unlikely to be amenable to re-opening negotiations at that stage though. Why indeed would anyone be willing to re-open an agreement for the purposes of giving concessions to their opposite number that they failed to achieve the first time round? While the idea of simply attempting to revoke the Article 50 notification may be appealing to many Remainers, it is very hard to imagine Parliament doing this. It could if it wished though.
Parliament could however amend the resolution to make agreement to the Withdrawal Agreement conditional on a referendum approving it. This is the route to a “People’s Vote”, or “Final Say”. It would then require two things. The first would be that legislation was brought very quickly for a referendum to happen. However quickly this could be done though, it’s obvious that an extension to the two-year Article 50 period would be required for the legislation to be put in place and the referendum held. Even if the usual timeframes could be compressed significantly, it is simply not feasible to hold a referendum only weeks before the expected exit day.
An extension of the Article 50 period requires the unanimous agreement of the EU27. While agreement would be unlikely if it were simply to renegotiate, indications are that an extension would be possible if it were for democratic processes to play out. Indeed, it is hard to imagine the EU27 insisting that the UK leave the EU while it is still in the process of deciding democratically whether it actually still wants to leave.
There is then the question of what the consequences of a “No” vote in a referendum on the Agreement would be. Parliament again has options here. It could include a provision in the resolution that if the referendum rejected the Withdrawal Agreement, the government should seek to revoke Article 50. It may also be possible to put this provision in the legislation for the referendum itself.
Steve Peers points out that, if agreed by the Commons, the Lords’ amendments would mean that if either there was no Act to implement the Withdrawal Agreement by the end of January 2019, or no Agreement at all concluded by the end of February 2019, Parliament would be able to direct the government in its actions. Of course, if Parliament rejected the resolution on the Withdrawal Agreement outright, then these conditions would also be likely to be triggered. Peers argues that it is not clear that this power to direct would include revoking Article 50, and an attempt to do so would no doubt draw litigation, but in the face of a catastrophic (and it would be) no-deal Brexit, any sane Parliament would surely attempt to take all possible measures to avoid the cliff-edge.
Is any of this hugely likely? At the moment, it doesn’t seem so. While there are some signs of growing opposition, Tory rebels are still in short supply, and the Labour leadership still maintains at least passive opposition to a referendum on the deal. This is not really the point though. The point is that there is a clear, if difficult, route for Parliament to take if it wishes to either attempt to stop Brexit, or, if it wishes, to pass the responsibility back to the people to decide whether they think that what is on the table in October 2018 is what they voted for in June 2016. As, even now, nobody knows exactly what large parts of the Withdrawal Agreement will contain, or anything of what will be in the declaration on the future relationship, it’s hard to make a case that the 2016 mandate extends to an acceptance of whatever is agreed.
A final point is that all of this relies on Article 50 being revocable. Politically speaking, EU27 have leaders have been at pains to convey the message that the UK can abandon Brexit if it so wishes. While there is a current case in progress to get a definitive legal ruling on the revocability of Article 50, prevailing opinion, including that of some very senior EU legal figures, suggests that it is.
The conclusion for Remainers is that Brexit is by no means certain. It is in the hands of Parliament, and convincing MPs to act, both directly and through attempting to shift public opinion, should be their focus. For Brexiters, the conclusion is that they should be careful what they wish for when they boast about sovereignty and taking back control. Parliament never lost sovereignty, but it does have the means to take back control from the government if it chooses.
This post represents the views of the author and not those of the Brexit blog, nor the LSE.
Steve Bullock is an ex-civil servant. He was a negotiator for the UK in the EU at the UK Permanent Representation to the EU from 2010-2014. He has also worked in the European Commission on external financial aid, and for the UK Department for International Development. He tweets about Brexit as @guitarmoog
Brexit ‘ultras’ are undermining the integrity of the Civil Service. The consequences could be grave
The true date is June as the EU will need to brief all 27 countries on the deal before the Oct meeting. The EU might also ask for the withdrawal agreement to be passed in the UK before the EU sign it off. Simon Coveney on Friday tweeted that if Ireland was exposed in that deal, there would be no agreement. So the only way a withdrawal agreement will proceed is with the current wording of parallel rules and standards with the EU in the UK for all time. Why leave? The ERG MPs will vote such a deal down. I see the crisis in June rather than October accordingly.
I really, really hope and pray that this disaster is reversed. Brexit is a tragedy. I can see it leading to the break up of the UK if it happens.
It may be a disaster in your view but 17.4 million people think otherwise! Why is it that the voting minority think it has the right to overturn the voting majority … is this a British Rail version of the wrong type of democracy?
thanks. I think Blair is correct in that June may be a firmer deadline that many in the UK think. The Irish are unconvinced by Unicorns in leprechaun uniforms flying on drones (though if they could get LEPRecon on side it might work). This has been confirmed by France https://www.cnbc.com/2018/05/13/reuters-america-dublin-french-foreign-minister-says-brexit-june-deadline-should-be-seen-as-the-ultimate-deadline.html
Meanwhile the cabinet is debating two options, the customs partnership, which Coveney hinted night have some legs (though I though the EU had ruled it out as being too complex) and Max-Fac. – I thought Max-Fac was short for Max Factor who make lipstick amongst other things. What is the saying? “If you put lipstick on a Brexit pig, It’s still a pig! “
“it is hard to imagine the EU27 insisting that the UK leave the EU while it is still in the process of deciding democratically whether it actually still wants to leave.”
Erm, Parliament already has decided to leave. All people are arguing about is how best to do it.
Parliament only authorised:
“The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU [emphasis added].” – s1(1) European Union (Notification of Withdrawal) Act 2017.
Let’s say you see a house called “Sunlit Uplands”, put in an offer, but the survey is so bad you decide to withdraw from the sale.
Intentions can change.
Let’s say you see a house called “Sunlit Uplands”, put in an offer, and the survey is commissioned by Tony Blair, a range of people desperate for you to pull out of the deal, and of course the Reverend Apocalypse MacDoom. Do you have any reason whatsoever to trust the survey?
Both parties ran on manifesto commitments to leave the Single Market, leave the Customs Union, and leave the jurisdiction of the ECJ. WTO terms would satisfy these commitments.
Thanks for the article, Steve, good points as always. Some thoughts/questions that immediately arise:
What would be the constitutional status of a referendum on the Withdrawal Agreement? Would it be pre- or post-legislative, i.e. advisory as in 2016 or ratifying an Act already passed as in the Scotland Act of 1978? If the latter, should there be an electorate eligibility threshold as in the devolution referendum of 1979? In either case, the options should extend beyond a binary yes/no. One could say “no” to the terms of withdrawal and still desire our exit from the EU, so the choice could comprise both Leavers and Remainers. Similarly, a “yes” vote could encompass outright Brexiters and those who’s prefer to remain but reluctantly opt for, say, a soft Brexit deal. We’ve had Cameron’s February deal of 2016 rejected by the largest minority 37% opinion in the June ref, a stupid Parliament taking it as an instruction, and now a mooted third attempt to gauge opinion through a People’s Vote. I’d like our MPs to resume the responsibility they’ve abrogated to the “will of the people” and bloody well get on and govern in the general interest and stop the national self-harm that is Brexit.
Good article. #CancelBrexit
What does all this posturing say about the democratic processes in the UK? That because we do not like the outcome of the democratically agreed 2016 Referendum we can, in essence, ignore it by employing Machiavellian means that are effectively using so called democratic processes to overturn the majority result! It is correct that the majority of MP’s (70%) voted to remain in the EU whilst the majority of voters and the majority of constituencies voted to leave. We thus have a democratic deficiency within the UK whereby a majority of MP’s are ignoring national. voters, and thus ignoring the very foundations upon which democracy in the UK is built. MP’s are the representative of the people who, in the instance of the 2016 Referendum, were given an unequivocal instruction to leave the EU. MP’s voted overwhelmingly to hold the Referendum and the voters were given assurances that the result would be implemented. Implementation means leaving the EU and all its trappings. However, the machinations that have taken place since the vote can be construed in no other way than that the Parliamentary elite ( and those who voted to Remain but do not accept the result) have no respect whatsoever for the wishes of the majority of the electorate. To argue blatantly that it is not too late to overturn the result is to undermine the basis of democracy in the UK.
the usual incredible speculation form the Brits on Brexit.. I find it embarrassing. To begin with there is nothing in the treaties to say that Brexit cant be cancelled. Therefore under the Napoleonic code if it is not written the activity sought is permissible. There was no need to apply to the ECJ for an opinion .There is nothing to stop Britain form cancelling brexit, or even at a later date reapplying to leave the Union if it so chose. More importantly because of the Uk governments gross incompetence, they have allowed Barnier to retain the upper hand by simply not knowing the procedures for a successful negotiation under the Treaties, simply because the British are unable to interpret the treaties properly.