The EU referendum, one year on: public debate

Today is the first anniversary of the EU referendum. To mark this the UK in a Changing Europe Initiative and Political Studies Association have published a collection of essays titled EU Referendum: One Year OnAlan Renwick‘s contribution, focusing on the continuing weakness of public debate around Brexit and how it might be strengthened, is re-produced here. 

This month’s general election was supposed to be about Brexit. In her Downing Street statement on 18 April announcing her intention to seek the dissolution of parliament, Theresa May spoke of little else. She suggested that, without an early election, her opponents would have both the will and the ability to disrupt her efforts to negotiate the best possible Brexit deal. The vote, she hoped, would deliver a secure majority for her favoured Brexit plan.

Brexit’s low profile

In the end, however, Brexit did not dominate. It was mentioned on average 580 times a day in the main UK-wide newspapers in the week following May’s statement. But that fell below 500 for the following two weeks, then below 400 for the four and a half weeks between then and polling day – dipping to just 155 a day in the sixth week of the campaign, immediately following the Manchester bombing. When the BBC’s Andrew Neil interviewed the Prime Minister on 22 May, his questions turned to Brexit only in the last few minutes. Interviewing Jeremy Corbyn four days later, he asked nothing directly about Brexit itself, though he did enquire towards the end about immigration. The other main television debates and interviews gave Brexit more attention, but still it did not dominate.

There were at least three reasons for this. One, as just suggested, was the unforeseen and tragic eruption of terror into the campaign caused by the attacks in Manchester and London. This inevitably shifted the agenda towards the terrorist threat. It raised deep questions about both Theresa May’s record on police funding and Jeremy Corbyn’s record of opposition to counter-terrorism legislation and seeming friendship with certain terrorist organisations.

A second reason was the spectacular misfiring of the Tory campaign. Conservative strategists intended to focus on one core message: that Theresa May, not Jeremy Corbyn, was the person to provide the ‘strong and stable leadership’ needed for successful Brexit. But the Conservative manifesto introduced controversial policies – most notably on social care – that distracted attention away from that core message. The Prime Minister’s forced u-turn on social care undermined the credibility of the message. Veteran election watcher Sir David Butler tweeted (sic) that ‘In the 20 general election campaigns I’ve followed, I can’t remember a U-turn on this scale’.

Continue reading

Ask the Experts: Legal and Constitutional Implications of Brexit

On 13 June UCL Public Policy and the House of Commons Library jointly hosted an ‘Ask the Experts’ event on the legal and constitutional implications of Brexit. The panel consisted of specialists from both institutions. Marc Phoon reports.

The possible economic and social consequences of Brexit were central features of the referendum debate and continue to be discussed widely. However, of equal importance are the legal and constitutional implications of Brexit, which may very well underpin the long term outcomes of the Brexit negotiations. ‘Ask the Experts: Legal and Constitutional Implications of Brexit’, an event jointly hosted by UCL Public Policy and the House of Commons Library on 13 June, aimed to provide some clarity on this matter.

The panel consisted of staff from both the House of Commons Library and UCL. Vaughne Miller is the Head of International Affairs and Defence at the House of Commons Library and an EU law specialist. She was joined by two of her colleagues, Arabella Lang, a treaty specialist and Jack Simson Caird, a constitutional law specialist and UCL alumnus. Ronan McCrea, a Senior Lecturer from the Faculty of Laws and Christine Reh, Reader in European Politics from the Department of Political Science, both based at UCL, completed the panel. Meg Russell from the Constitution Unit chaired the event. In introducing the panel, she emphasised the high-quality, reliable and digestible briefings publicly available from the House of Commons Library, as well (of course) as the materials available from the Constitution Unit, the UCL Brexit Hub and other UCL experts.

Vaughne Miller

Vaughne Miller kick-started the discussion by offering an overview of the differing approaches taken by the EU and the UK government ahead of the Brexit negotiations. The EU, through the European Commission and European Council, has already set out its priorities for the negotiations. It is particularly concerned with issues related to EU citizens’ rights post-Brexit, the border between Northern Ireland and the Republic of Ireland and the so called ‘divorce bill’ – i.e. the financial settlement between the UK and the EU. She noted that the EU has a clearer position than the UK government because of the EU’s laws on transparency, which mean that the majority of the negotiation guidelines coming from the EU will be publicly available.

Miller went on to explain that it is not yet clear how the UK parliament is going to be kept informed about the progress of Brexit negotiations. The government has indicated that the UK parliament will be kept at least as informed as the European Parliament. Nevertheless, MPs have signalled their expectations on this matter through a report published by the European Scrutiny Committee. Furthermore, because of the general election and summer recess, there are concerns about whether there will be adequate parliamentary scrutiny of the early stages of the negotiations. Notably, select committees in the Commons which scrutinise government departments are not likely to be properly established until September this year.

Continue reading

A cross-party committee of the Privy Council should be established to seek consensus on the terms of Brexit

Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

Continue reading

The 2017 election manifestos and the constitution

Over the past two weeks the political parties have published their manifestos for the snap general election. In this post Chris Caden and Fionnuala Ní Mhuilleoir summarise the constitutional content, covering proposals relating to Brexit, the possibility of a constitutional convention, devolution, House of Lords reform, electoral reform, human rights and freedom of information.

Theresa May’s surprise election announcement left the political parties with the challenge of putting together manifestos in a matter of weeks. The Conservatives, Labour, the Liberal Democrats, the Green Party and Plaid Cymru all published their manifestos in the week beginning 15 May. UKIP followed on 25 May and the SNP on 30 May. With much of the election debate centring on whom the public trust to lead the country through the biggest constitutional upheaval in recent history, Brexit is unsurprisingly covered by all the parties. Attention on other constitutional issues has wavered somewhat as a result, but Labour and the Liberal Democrats both propose a constitutional convention to review aspects of the UK’s constitutional arrangements. The manifestos also lay out a variety of options in areas such as House of Lords reform, devolution, electoral reform and human rights.

Brexit

Negotiating Brexit is a major theme for all parties. The Conservative Brexit commitments include ending membership of the single market and customs union so that a greater distinction between ‘domestic and international affairs in matters of migration, national security and the economy’ can be made. This means negotiating a free trade and customs agreement between the UK and EU member states and securing new trade agreements with other countries. Theresa May’s party aims for a ‘deep and special partnership’ with member states. A successful Brexit deal would entail regaining control of borders, reducing and controlling net migration, but maintaining a ‘frictionless’ Common Travel Area for people, goods and services to pass between Northern Ireland and the Republic of Ireland. The manifesto controversially maintains that ‘no deal’ is better than a bad deal for the UK.

Labour also accepts the referendum result, but rejects ‘no deal’ as a feasible option and envisages something more akin to a ‘soft Brexit’. The party would scrap the Conservatives’ Brexit white paper and replace it with an agreement maintaining the benefits of the single market and customs union; the government’s proposed ‘Great Repeal Bill’ would be replaced with an EU Rights and Protections Bill to ensure no changes to workers’ and consumers’ rights, equality law or environmental protections. The party pledges to immediately guarantee existing rights for all EU nationals in the UK and UK citizens in EU countries, and would also seek to remain part of various research and educational projects such as Horizon 2020, Erasmus and the European Medicines Agency. Additionally, membership of organisations like Eurojust and Europol would be retained. Labour commits to no hard border between Northern Ireland and the Republic of Ireland.

Unlike the Conservatives and Labour, the Liberal Democrats and Greens pledge a second referendum after a Brexit agreement is concluded, which in each case would include an option on the ballot paper of staying in the EU. Preventing a hard Brexit is the first priority for the Lib Dems and as a result the party promises to fight for the continuation of UK membership of the single market and customs union. It also pledges to protect the rights of EU citizens living in the UK and UK citizens abroad, to maintain UK participation in the Erasmus+ programme and other EU-funded schemes, and to retain the European Health Insurance Card. The Greens set out a similar agenda.

The SNP wishes to mitigate what they see as the damage of Brexit with the proposal that Scotland should remain in the single market. The party seeks additional powers for the Scottish government including powers that will be repatriated from Brussels to the UK like agriculture, fisheries, environmental protection and employment law. Plaid Cymru, meanwhile, pledges to make sure ‘every penny’ of European funding for Wales is replaced by the UK government and that the Welsh share of the money promised by the Leave campaign (referring to the £350 million for the NHS) is delivered. It also demands that the UK government seeks the endorsement of each UK devolved legislature before any trade deal can be signed.

UKIP supports leaving the single market, the customs union and the European Court of Justice. The manifesto outlines that no ‘divorce’ bill should be paid to the EU and that Brexit negotiations will be complete by the end of 2019.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading