Can the Brexit clock be stopped?

In this post Piet Eeckhout adopts a constitutional law perspective to argue that there are numerous ways in which the two-year Article 50 clock could be stopped or extended. Not only could the decision to withdraw be revoked by the UK, but both the UK and European Parliament could ask for the negotiations to be extended. Crucially, EU constitutional law requires an orderly transition. 

The deed has been done, the letter delivered. All over media screens the two-year clock started ticking, registering to the level of seconds the time left for Britain’s EU membership. The point of Brexit, when by virtue of Article 50 the treaties cease to apply, can be determined with atomic precision, so it seems.

But the relationship between law and time can be treacherous, and those who look at the two-year deadline of the withdrawal process as a physical fact could well come in for a surprise. Of course we know that the European Council has the power to decide, unanimously, to extend the withdrawal process. So much is expressly stated in Article 50. There is, however, more to Article 50 than meets the eye.

In a paper written with Dr Eleni Frantziou (Westminster), and to be published in the coming months (for an earlier version see here; for my lecture on the subject, see here), we argue that Article 50 needs to be interpreted and implemented in line with broader EU constitutional principles. We also point out that UK constitutional law governs further UK decision-making on Brexit. Our conclusions are that the clock can be stopped in a number of ways.

First, the UK could change its mind. Our view is that the Article 50 notification is revocable. The notification implements a decision to withdraw, in accordance with the withdrawing state’s ‘constitutional requirements’ (Article 50(1)). If that state rescinds that decision, in good faith, and in a constitutionally orthodox fashion, the very basis for withdrawal falls away. In the UK parliament is sovereign. It has authorised the government to notify the intention to withdraw; it could decide, at any point, that Brexit is off. The EU respects the constitutional identity of its member states (Article 4(2) TEU), and would therefore need to respect a Brexit reversal, for else the effect of Article 50 would be one of forced expulsion. The travaux of Article 50 show that such an expulsion mechanism was rejected. Of course any abuse of the Article 50 process must be avoided – there cannot be an opportunistic letter-sending sequel – but the law can deal with abuse. The EU’s whole purpose is integration, and the return of the prodigal son would fit that purpose.

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Taking back control? Initial thoughts on the Great Repeal Bill white paper

In the newly published Great Repeal Bill white paper, the government makes much of the theme ‘taking back control’. But the paper’s content does little to alleviate the fear that it is the executive, not parliament, that will benefit from the Great Repeal Bill process. The Hansard Society’s Ruth Fox has five initial questions raised by the white paper.

1/ When will the parliamentary votes on any Brexit deal be held?

The white paper seems to reveal confusion in the government’s position regarding the timing of the votes that it has promised both chambers of parliament on the Brexit deal. In the Prime Minister’s Lancaster House speech and at the start of the EU (Notification of Withdrawal) Bill second reading debate on 31 January the government said that the votes would be held before the deal ‘comes into force’. By the second day of the bill’s committee stage on 7 February, the government said that it would bring forward a motion to approve the deal ‘before it is concluded’. In the Prime Minister’s statement yesterday and her foreword to the white paper today, she reverted to the original ‘before it comes into force’ position. But paragraph 1.19 of the white paper reintroduces ‘before it is concluded’. This may be carelessness, but the two phrases could mean very different things. Parliament now needs urgently to clarify with the government when exactly in the process it plans to put any final Brexit deal to the vote.

2/ Is the government’s description of the delegated legislation process accurate?

On page 23 of the white paper, the government states that parliamentary procedures allow parliament to scrutinise as many or as few statutory instruments as it sees fit, and notes that parliament can and regularly does both debate and vote on secondary legislation.

What the white paper omits to mention, however, is that secondary legislation subject to the negative scrutiny procedure (the majority of this type of legislation) can only be debated if an MP ‘prays’ against it via an Early Day Motion (EDM). Even then, whether it is debated lies in the hands of the government, not parliament. Paragraph 3.21 states that under the negative procedure members of either chamber can ‘require’ a debate and if necessary a vote. In fact, they can ‘request’ these, but they cannot ‘require’ them. The government controls the parliamentary timetable in the House of Commons, and it must therefore agree to grant the time for any debate. In the last parliamentary session, MPs debated just 3 per cent of the 585 negative instruments laid before them. And although the Leader of the Opposition and his front bench colleagues tabled 12 prayer motions for a debate, just five were granted.

Sometimes the government doesn’t prevent a debate but runs down the clock and builds in delays that minimise the ability of MPs to revoke a regulation. In the last week alone, the opposition had to secure an emergency debate under Standing Order 24 in order to debate the new Personal Independence Payment Regulations. 179 MPs from eight different parties prayed against the SI via an EDM, but the government only scheduled a debate for 19 April, 16 days after the ‘praying against’ period would have expired. This makes revocation difficult. The emergency debate was a means to air the issues before the annulment period came to an end, but it had no force, as there was no substantive vote on the regulations.

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Now that Article 50 has been triggered, reality will start to bite

Following the triggering of Article 50, the honeymoon period is over for Theresa May. Oliver Patel outlines the main challenges which the UK faces in the upcoming negotiations. He argues that securing a deal within the two period will be hard enough. Securing a deal which pleases everyone – or anyone at all – will be virtually impossible.

Theresa May has had an easy ride so far. Up until now, she has only had to worry about pleasing her core domestic audiences. Now that Article 50 has been triggered, however, reality will start to bite. The two-year road to Brexit is fraught with uncertainty, obstacles and challenges. Two stand out above all else. First, given the complexity of the task, two years is an extremely short length of time in which to negotiate and finalise the UK’s withdrawal. Second, getting a deal which satisfies everyone – the British public, the EU and its 27 member states – will be virtually impossible. Theresa May needs to negotiate with 27 other countries, each with their own interests and priorities, who arguably have the upper hand in the talks. Her task is an unenviable one.

Is two years enough?

The triggering of Article 50 marks the beginning of a two-year process in which the UK and the EU must negotiate and conclude a withdrawal agreement. From May onwards, after the European Council have agreed upon official negotiating guidelines, the negotiations can begin in earnest. If no deal is reached within two years, the UK leaves without an agreement (unless the EU unanimously decides to extend the negotiations). Two years is a remarkably short length of time in which to complete what is routinely described as the most complex task undertaken by the British government since World War II. EU leaders have made it clear that they want the negotiations to end in October 2018, to allow time for any withdrawal agreement to be reviewed and ratified. This means that the UK could have no more than 18 months to negotiate its exit.

This short timeframe makes the entire process particularly challenging. Sorting out the practical aspects of the divorce will be complex in the extreme. Resolving thorny issues such as the Irish border, the status of EU nationals in the UK and UK nationals in the EU, the future participation of the UK in EU regulatory bodies, and the financial liabilities which the UK owes the EU, will be highly time-consuming, not least due to the complexity and contestability of the issues involved.

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Article 50: What to expect when you’re expecting (…Brexit negotiations)

Shortly before 12.30pm this afternoon Article 50 was triggered and Brexit negotiations formally got under way. In this post Nick Wright looks ahead to what we can expect to happen over the next two years. He suggests that, whatever the technical detail, Brexit will first and foremost be a political process and will require pragmatism and goodwill if it is to be conducted smoothly and with minimum disruption.

And so the ‘phoney war’ of the last nine months is finally over. The now infamous Article 50 has finally been triggered.

Earlier this afternoon Sir Tim Barrow, the UK’s Permanent Representative to the EU, delivered to Donald Tusk, President of the European Council, the UK’s formal notification of its intent to leave the European Union. Their brief conversation over (it apparently lasted around a minute), the two-year countdown to Britain’s departure from the EU can officially begin.

However, if you were expecting David Davis and his negotiating team to have their bags packed, ready to jump on the first Eurostar to Brussels to start the difficult (and likely fraught) process of disentangling the UK from the EU, think again.

After many months of waiting, there is still more to come as the Brussels machine cranks into action and the other 27 member states seek to ensure Britain’s departure does not do terminal damage to the European integration project.

So what happens now?

Stage 1: The EU’s Brexit choreography

The EU’s key institutions, including the Council and Commission, have been preparing for the commencement of negotiations since virtually the day after the referendum result.

Donald Tusk has already taken soundings in EU27 capitals, while the member states have held a number of informal ‘Brexit Councils’ without the UK. These meetings will have been designed to agree their broad objectives, and to emphasise that ‘in these negotiations the union will act as one’.

Meanwhile, the European Commission’s team, headed by former French foreign minister Michel Barnier and his deputy Sabine Weygand, an experienced Commission trade negotiator from Germany, has been in place for some months now. Indeed, Margaritis Chinas, the Commission spokesperson, declared on 13 March that ‘everything is ready on this side’ and ‘we stand ready to launch negotiations quickly’.

Having received the official notification from the UK, Donald Tusk will circulate the proposed ‘negotiating guidelines’ –the basic political principles for the negotiations – among the EU27. These will then be agreed at a European Council summit of EU27 heads of state and government on 29 April.

Following this, the Commission will bring forward its more detailed ‘negotiating directives’ setting out how the negotiations will take place and including a formal mandate to Barnier to proceed. These will be officially confirmed by the EU27 foreign ministers in a meeting of the Foreign Affairs Council in May.

Whilst somewhat complicated and involved, this process reflects both the complexity of achieving consensus among the EU27 on the line the EU should take in the negotiations, and the determination of those same member states to keep the Commission under close supervision throughout the process.

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Brexit at Westminster: can parliament play a meaningful role?

On March 13 the Constitution Unit hosted a seminar on Brexit at Westminster, exploring the role parliament has played in the lead up to the triggering of Article 50 and that it might play in the forthcoming negotiations. The panel consisted of Hilary Benn, Chair of the House of Commons Exiting the EU Committee; Arnold Ridout, Counsel for European Legislation at the House of Commons; and Baroness (Kishwer) Falkner, Liberal Democrat peer and Chair of the Financial Affairs Sub-Committee of the House of Lords EU Committee. Ascher Nathan reports.

Introducing this seminar on Brexit at Westminster, Constitution Unit Director Meg Russell remarked on the perfect timing: the Article 50 Bill would have its final votes that evening. Despite earlier concerns that parliament would be shut out from any influence over Brexit it has played a central role in the lead up to the triggering of Article 50 through debates, questions, the work of select committees and, following the judgement in the Miller case, the passage of the Article 50 Bill. The next big piece of legislation will be the ‘Great Repeal Bill’. Thus, the answer to the question of whether parliament can play a meaningful role in Brexit should be considered as a resounding ‘yes’ – it has already begun to do so. And yet if the Miller case and subsequent events have been a reminder about the role parliament can play, questions still remain about exactly how it will influence debates going forward.

The three speakers each brought a different perspective. Hilary Benn, Labour MP for Leeds Central, has served as a cabinet and shadow cabinet minister and is now Chair of the House of Commons Exiting the EU Committee. Arnold Ridout is Counsel for European Legislation at the House of Commons, and legal adviser on EU matters to the Commons select committees. Baroness (Kishwer) Falkner, a Liberal Democrat peer, sits on the Lords EU Committee and chairs its Financial Affairs Sub-Committee.

Hilary Benn

Hilary Benn explained that the Exiting the EU Committee was a mixed group of Leavers and Remainers and thus his role as chair was to establish consensus and direct their work in a constructive manner. In what he described as the most complex trade negotiations since the end of World War II, with the Great Repeal Bill to be an ‘enormously daunting task for any government,’ Benn pledged that parliament would ‘not be a bystander’ and intended instead to be a key participant in the policy process. Fundamentally, he challenged the government claim that persistent parliamentary involvement in the negotiations would undermine ministers’ position and lead to bad deals, noting Nick Clegg’s comment that the government’s position implied that only dictatorships were in a position to make treaties.

For Benn, the complexity of Brexit was a great challenge. He talked at length of numerous examples of areas where exiting the EU would prove difficult: passporting for financial services; regulation of medicines (where pharmaceutical companies will seek approval in the largest markets first) resulting in UK patients accessing them later; the regulation of data handling between states. Whilst this is a huge challenge for government, it is equally difficult for the Brexit select committee to address in the limited time available, as well as challenging for the EU. Benn agreed with the government’s position in favouring parallel negotiations for the divorce settlement and the new framework because the eighteen-month window given by Michel Barnier, chief EU negotiator, is so tight. Benn thinks it will be ‘impossible’ to agree a comprehensive trade negotiation in the time available and so called for a transitional agreement to be drafted.

Finally, he discussed the Great Repeal Bill, and the nature of the detail that should be scrutinised. He called for openness by government on both the negotiations regarding transitional arrangements, and the divorce settlement itself (whilst anticipating that much of this information may be gleaned through the ‘leakiness’ of Brussels). He wanted to see a white paper on the Great Repeal Bill, and information on how subsequent legislation will be formulated: will it largely be secondary legislation, authorised by Henry VIII clauses? Benn was concerned by the fact that so far government had had to be ‘pushed and cajoled’ into understanding that parliament would not be bystander: ‘We are not a string, we are very attached to our democracy … and we intend to do our job.’

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Brexit presents parliament with daunting challenges but steps are being taken to help it meet them

Brexit presents parliament with daunting challenges, both politically and procedurally. In this post Arnold Ridout, Counsel for European Legislation at the House of Commons, highlights some of these and explains what steps are being taken to held ensure that parliament performs its role effectively. The post is adapted from a talk he gave at a Constitution Unit seminar on ‘Brexit at Westminster’, held on 13 March.

As Counsel for European Legislation in the House of Commons I can be called upon to assist the House or any of its select committees on EU law matters. I have a formal role with the European Scrutiny Committee and the Committee for Exiting the EU, both of which have standing orders explicitly providing for assistance to be given by Speaker’s Counsel. For this purpose I generally represent her.

Uncertainty

I do not know if it is fair to say that parliament as an institution was as ready for the referendum result as the government was. There was a good deal of uncertainty at that time as to the very basics, such as the Brexit process itself and even more as to what role parliament would play. In some ways that might be regarded as an advantage; by leaving a clear field on which parliament could put down its markers, and influence at an early stage the formulation of the process and the policy. On the other hand it created the risk of lack of focus or focus on the wrong issues. In particular, it was unclear what tools were available to parliament to exert its influence. This remains the case to a certain extent.

The government has now committed to putting ‘the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament’. This is important as having a final say on the outcome could give parliament a real handle on the negotiations. However, if the Article 50 notice is not revocable, or revoked, then the choice for parliament looks like ‘deal or no deal’. Five eminent lawyers disagree and have gone as far as suggesting not only that the Article 50 notice is revocable, but that a further act of parliament is required to either agree the deal or authorise the UK’s departure from the EU without any deal. If correct it means that parliament has a further, and unilateral, chance to decide whether the UK leaves the EU or not even after the Article 50 notice has been served.

The government has committed to ensuring ‘that the UK Parliament receives at least as much information as that received by members of the European Parliament.’ We do not yet know with certainty what that entails, and in particular whether it includes something similar to the arrangement in trade negotiations whereby the European Parliament receives ongoing explanations as to how its view has been put into effect during negotiations.

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Brexit, federalism and Scottish independence

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As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

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