The Constitution Unit, together with the UCL European Institute, is holding a special series of seminars on the implications and consequences of Brexit. The first, on 21 April, focused on the consequences for Westminster and Whitehall. In this post, adapted from his comments on the night, former Clerk of the House of Commons Lord Lisvane discusses the impact that a vote to leave the EU would have on Westminster in the immediate aftermath of the referendum, during Brexit negotiations and once Brexit has actually taken place.
The immediate aftermath
After a vote to leave there will be immediate pressure for debates in the House of Commons and the House of Lords, probably over two days, to be held as soon as possible. There may even be calls for a rare weekend recall, though this is in the Prime Minister’s hands and I think it very unlikely that he would grant one.
David Cameron’s future will, of course, be high on the agenda. He has said that he would stay on as Prime Minister to oversee the consequences of a vote to leave, but there are Conservative MPs who have suggested that he won’t have the opportunity to do that. Might he throw the dice and have a vote of confidence among members of his own party, or would that be too high risk?
I think that action at this stage will depend on the margin of the referendum vote. If the result is narrow and the turnout is low then the possibilities become a lot more complicated. Remember that the outcome of the Scottish independence referendum was 55.3 per cent No, 44.7 per cent Yes, on an extremely high turnout of 84.59 per cent. If the result on June 23 was, say, 51 to 49 in favour of Leave on a turnout of 55 per cent then that would move quite a lot of goalposts – especially if Scotland had voted to stay and England to leave. The Prime Minister could say that such a result is not sufficiently decisive and so we will negotiate heads of agreement on withdrawal, and then have a second referendum to decide whether to trigger the exit process on that basis.
Westminster and Brexit negotiations
Assuming that Article 50 of the Lisbon Treaty has been triggered and the process of negotiations about the terms of Brexit is embarked upon I can see the subject dominating Westminster for months, even years.
A senior cabinet minister would need to be appointed to lead the negotiation process. There would be ministerial statements most days and there would probably be one or two urgent questions each day given the Speaker’s penchant for them – with which I entirely agree – because of course the issues being negotiated would cover every aspect of the work of parliament. There may also be pressure for a dedicated question time on the whole business of negotiating the exit deal.
The immediately relevant select committees – Foreign Affairs, BIS, European Scrutiny – will, of course, swing into action. But all the departmental committees will want a finger in the pie and there may be some calls, certainly in the Commons, to set up a sort of super-committee to oversee the whole thing.
There will also be quite a lot of pressure to have parliamentary approval at different stages of the process. This could complicate the negotiations if they had to pause for the approval of parliament at each stage.
The post-Brexit environment
The unpacking process that would be required once Brexit has taken place has not received anything like the profile that I believe it should have.
There will be pressure to repeal the European Communities Act 1972 straight away, but of course it isn’t as easy as that. Subordinate legislation made under a parent Act lapses automatically when that Act is repealed. If the European Communities Act 1972 were repealed everything that has been done under section 2 would lapse unless steps were taken to maintain it in effect.
Section 16 of the Interpretation Act 1978 says that if you have accrued rights or obligations under that subordinate legislation when it was in force then you don’t lose them. But, of course, at the moment of repeal they stop accruing further (or applying to people who weren’t previously covered). Employment rights, for example – enormously important in the European context – would be preserved up to the moment of repeal, but would need to be given continuing legislative force – and no new rights could be acquired without that legislative provision.
A bigger issue here, which will resonate strongly across the political spectrum, is that there will be a huge menu of policy areas – employment law, agriculture and fisheries policy, regulation of the financial services sector, the environment and swathes of construction and health and safety legislation in particular – that will be up for discussion. In all sorts of areas the question will be asked: ‘Just because something is done in a particular way already, do we want to go on doing it that way?’ To take one example, what about the Working Time Directive? Do we want to stick with the European policy, or do something different? If we were in the European Economic Area (EEA) like Norway it would perhaps be less seismic, as the internal market measures do have an EEA dimension, but there would still be an awful lot of decisions to be taken.
This post is adapted from Lord Lisvane’s comments during the Constitution Unit/UCL European Institute seminar on ‘Brexit: Its Consequences for Westminster and Whitehall’ held on 21 April.
About the author
Lord Lisvane was, as Sir Robert Rogers, a House of Commons Clerk for over 40 years from 1972 to 2014. He served as Clerk of the House of Commons, the most senior role in the House Service, from October 2011 to August 2014. He now sits in the House of Lords as a Crossbench peer.
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In large measure I agree. Given the enormous volumes of legislation that would be needed there is an increased risk of error, both in drafting and scrutiny. This would be magnified by the repatriation of large policy areas where the bulk of the work has been undertaken by EU institutions, requiring the encouragement and generation of inputs from citizens, NGOs, think tanks, university researchers and the like. Doubtless lobbyists would produce solutions that might create structures and markets biased to particular commercial interests.
The point made above by David Brew and, elsewhere, by Michael Keating, is that some policy areas being repatriated have already been devolved. If these were to be coordinated it would fall to the relatively mysterious Joint Ministerial Committees, for which scrutiny seems to be largely unknown. This also points to state aid, an area where the UK has no legislation of its own and thus when the EU Treaties ceased to apply governments and council could engage in state aid, albeit in a time of austerity.
The huge menu of policy areas for discussion would also be much more complex as a result of devolution to Scotland, Wales and NI, since the alignment resulting from compliance with EU law would be absent. Unless devolution were called seriously into question, Westminster would not be legislating for the UK in a number of areas, and the devolved institutions would have their own parallel debates. Variable geometry with a vengeance!