Is Tory unionism the greatest obstacle to Brexit?

image_normalAs the Brexit process continues, the Conservative Party is finding it hard to reconcile its desire to leave the EU with its longstanding commitment to maintaining the territorial and political union of the United Kingdom. Michael Kenny argues that, far from introducing a destabilising element to an otherwise sound constitutional set-up, Brexit has instead amplified and accelerated the debate about the UK’s territorial constitution.

‘I didn’t know it would break the United Kingdom’. This regretful rumination from columnist Peter Oborne – in a fascinating interview given in the wake of the recanting of his support for Brexit – touches on one of the key developments in the Brexit story. This is the gathering realisation in some Conservative circles that leaving the EU may well be incompatible with one of the foundational values of the Conservative party – the preservation of the integrity of the United Kingdom.

The painful discovery that these two goals are very hard – and maybe impossible – to reconcile is one of the great under-estimated political ironies of Brexit. For it has been those calling for the UK’s departure from the EU who have talked most confidently and directly about the distinctive character of Britain’s model of parliamentary sovereignty and the territorially differentiated unity expressed in in its constitutional arrangements. And whilst anxieties about whether Brexit might reignite the independence cause in Scotland were aired in the campaign leading up to the 2016 referendum, for the most part these remained at its margins.

But Prime Minister Theresa May has sounded a more anxious note ever since she entered office in July 2016. She has repeatedly – and a little mechanically – invoked the importance to her own politics of ‘our precious union’, a mantra that betrays a telling worry about the implications of a vote which accentuates a growing sense of political differences across the different nations and peoples contained with it, and also signals the salience in her own mind of the question of what implementing Brexit means for the domestic union. Continue reading

Parliament and treaty-making: from CRAG to a meaningful vote?

Hestermeyer (1)Yesterday, the House of Lords debated three international treaties, in line with the process established by the Constitutional Reform and Governance Act 2010 (see here for the transcript of the debates). Holger Hestermeyer discusses how the process of treaty ratifaction works, how it has been affected by the meaningful vote mechanism created by Brexit, and what lessons can be learned from the way in which other countries and organisations ratify treaties.

There has hardly been a day in the last two years in which treaties have not taken centre stage in the public debate. From the Withdrawal Agreement to the future trade relationship with the EU, from discussions about leaving the European Convention on Human Rights to proposals to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) treaties have become essential for the future economic and political outlook of the UK. But as treaties have obtained a central role in the debate, the question of how treaties are made has also become a topic of discussion, in particular the role of parliament. In the UK, that role is limited: parliament can merely delay treaty ratification. It can also vote down implementing legislation, but it does not (or did not, before the Withdrawal Agreement) get a vote on the treaty itself. A separate system is in place for the scrutiny of EU treaties, but this is outside of the scope of this blogpost and will be coming to an end with Brexit.

The UK constitutional setup is somewhat unusual. In many countries, the executive needs to obtain parliamentary consent for certain types of treaties to be able to ratify. Whether and to what extent the UK system of treaty scrutiny is in need of reform is now the subject of an inquiry in the House of Lords’ Constitution Committee, but treaty scrutiny has also played an important role in the discussions on the Trade Bill 2017-2019 and is the subject of EDM 128, which was tabled on 4 July 2017 has attracted 125 supporters. This blogpost will briefly describe how treaties are made with particular regard to the UK. It will then discuss why there is a call for reform. Finally it will turn to what such a reform could look like and what lessons can be drawn from other systems, such as the US, the EU, France or Germany.

How treaties are made

The treaty-making process can vary according to a number of factors, such as whether a treaty is formally concluded as a treaty or through an exchange of notes or whether a treaty is bilateral or multilateral. In general, the parties decide to try and negotiate a treaty with a defined partner, prepare internally (e.g. though consultations) setting their objectives, and then conduct the negotiations. Once the negotiators have reached agreement, the text is finalised and the parties can sign. Usually the signature does not yet bring the treaty into force – most treaties require another formal act expressing the consent of the state to be bound, referred to as ‘ratification’. Continue reading

A second Brexit referendum looks increasingly likely: what key questions need to be addressed?

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Widespread negative reactions to Theresa May’s Brexit deal have focused increasing attention on a possible further EU referendum. With MPs appearing poised to vote down the Withdrawal Agreement, a referendum could provide a way out of the apparent deadlock. But how would it work in practice? Ahead of the parliamentary debate, Meg Russell and Alan Renwick summarise the conclusions of their recent report on this topic.

When the Constitution Unit published The Mechanics of a Further Referendum on Brexit in October, it was still unclear if the government would successfully reach a deal with the EU, what that deal would contain, or how parliament and the public would react. Now that those facts are known, increasing numbers of MPs are demanding that the Brexit issue be returned to the public in a fresh referendum. But many unanswered questions about the practicalities remain. Here, we offer short responses to the most pressing of those questions, drawn from our report, to inform the parliamentary and growing public debate.

1. Is a referendum possible in the time available?

To hold a referendum, the UK parliament must first pass legislation. Before the bill leaves parliament, the Electoral Commission must assess the ‘intelligibility’ of the wording of the proposed referendum question – which usually takes ten weeks. This limits the ability to pass a bill very rapidly. Once the bill has received royal assent, sufficient time must be set aside to allow the Electoral Commission to designate lead campaigners, and for the campaign to take place.

In total, we estimate that the whole process – from introducing legislation to polling day – could be compressed to around 22 weeks. This is significantly less time than for previous referendums: for example the equivalent gap for the 2016 EU referendum was 13 months. But similar levels of urgency did not apply in these earlier cases.

The timetable could potentially be compressed even further, but doing so would risk delegitimising the result of the referendum – it is important given the sensitivity of the topic that the legislation is seen to be fully scrutinised, the question fair, and the campaigns adequately regulated. Continue reading

Could Article 50 be extended to allow for a second Brexit referendum?

jess_sargent.000alan_renwick.000download.001With increasing speculation about a possible second referendum on Brexit, this is the fifth in a series of posts about the practicalities of such a poll. With ‘exit day’ set for 29 March 2019, Jess Sargeant, Alan Renwick and Meg Russell ask whether the Article 50 period could be extended to allow a referendum to take place, and what the knock-on consequences would be.

In a previous blogpost we concluded that, given the time it would take to hold a new referendum on Brexit, the UK’s exit day of 29 March 2019 would almost certainly need to be delayed. This is legally possible – Article 50, the clause of the EU treaty setting out the process by which member states can leave the EU, makes provision for an extension to the two-year period if agreed unanimously by the UK and the EU27. This post examines whether such an agreement is likely, what difficulties may be encountered should the UK’s leaving date be postponed, and what solutions could be found.

Would the EU be likely to agree an Article 50 extension?

All the indications are that the EU would be willing to agree an Article 50 extension to allow the UK to conduct a democratic process such as a general election or a referendum before Brexit is finalised. If remaining in the EU were an option in the referendum, the 27 might well want to afford the UK the opportunity to change its mind. Even if Remain were not an option, there is a strong argument that the EU would want to honour the democratic principles on which it was founded and not deny sufficient time for the UK electorate to have the chance to vote, provided it felt that the UK was being sincere and not just ‘playing for time’. Continue reading

If there’s a second referendum on Brexit, what question should be put to voters?

jess_sargent.000alan_renwick.000download.001In the fourth in a series of posts on the mechanics of a possible second referendum on Brexit, Jess Sargeant, Alan Renwick and Meg Russell consider what question should be asked. This would be crucial for any vote to command legitimacy. Various models have been proposed, but some are far more credible than others in the current context.

 

This is the fourth in a series of posts on the possible mechanics of a second referendum on Brexit. Having previously discussed the timetable, and the circumstances in which suca referendum might be called, this post considers what kind of question should be put to voters.

Which options might voters be asked to choose between?

Three main options could be considered for inclusion in any further referendum on Brexit:

  • leave the EU on the terms the government has negotiated
  • leave the EU without a deal
  • remain in the EU

Some might add a fourth option: to reopen negotiations. But any option put to a referendum must satisfy two criteria: it must be feasible, and it must be clear. An option to reopen negotiations would fail on both counts: the EU might well refuse to reopen negotiations; and there would be no certainty as to what the UK might secure from such negotiations. A referendum of this kind could not ‘settle’ the issue of the UK’s relationship with the EU.

What form might the question take?

With three options in play, decisions would need to be taken about which of them should appear on the ballot paper, in what form, and in what combination. Continue reading

How could a second Brexit referendum be triggered?

jess_sargent.000alan_renwick.000download.001With ‘exit day’ less than six months away, public debate about a second Brexit vote continues. In the third of a series of posts on this topic, Jess Sargeant, Alan Renwick and Meg Russell outline the key decision points and processes by which MPs or the government might choose to trigger a second referendum.

In our previous blogpost we considered how long it would take to hold a second referendum on Brexit, concluding that an extension to Article 50 would almost certainly be required. The length of the necessary extension would depend on when the referendum was triggered. Calling a referendum requires a majority in parliament, and whether such a majority exists will depend on political and circumstantial factors. But by examining the process of Brexit we can identify a number of key junctures at which a decision to hold a referendum could be made.

What steps must take place before the UK leaves the EU?

According to Article 50, an agreement setting out the arrangements for withdrawal, taking account of the UK’s future relationship with the EU, should be concluded within two years. If no such agreement is ratified before 29 March 2019, the UK will leave with no deal, unless the Article 50 period is extended. For the UK to ratify the deal, three parliamentary steps must first be completed:

  1. Parliament must approve the deal. The EU (Withdrawal) Act 2018 requires the House of Commons to pass a motion, often referred to as the ‘meaningful vote’, approving the withdrawal agreement and the framework for the future relationship. This motion is expected to be amendable.

    • If the motion is passed, the government can proceed to the next step.

    • If the motion is not passed, the government must then set out how it intends to proceed. The Commons is then due to consider the plan through a motion in ‘neutral terms’, which may well not be amendable.

  2. The European Union (Withdrawal Agreement) Bill must be passed. The government will need to pass primary legislation to give the withdrawal agreement domestic effect. The government cannot ratify the deal until this is done.

  3. The Constitutional Reform and Governance Act 2010 (CraG) procedure. The withdrawal agreement will also be subject to the usual procedure applied to treaties, which can happen concurrently with the steps above. The government must lay the treaty before parliament, which then has 21 days to object to ratification. If the Commons objects it can delay ratification indefinitely.

All of this supposes that a deal is reached. If no withdrawal agreement is reached by 21 January 2019 the government must lay a statement before parliament outlining how it intends to proceed. Then a motion must be considered, again due to be in ‘in neutral terms’ and so probably unamendable.
Continue reading

The European Union (Withdrawal Agreement) Bill and constitutional impact assessments

NGQojaZG_400x400 (1)At an evidence session with the Minister for the Constiution in March, the Lords’ Constitution Committee discussed introducing constitutional impact assessments for government bills. Here, Jack Simson Caird discusses the potential benefits of such a process on the forthcoming bill legislating for a Withdrawal Agreement, and how it might have affected the passage of the European Union (Withdrawal) Act.

On 24 July 2018, the government published its White Paper Legislating for the Withdrawal Agreement between the United Kingdom and the European Union. In the introduction Dominic Raab, the recently appointed Secretary of State for Exiting the European Union, explained that the White Paper would outline the government’s approach to the European Union (Withdrawal Agreement) Bill (the Withdrawal Agreement Bill), which parliament must pass before exit day to implement the Withdrawal Agreement. Raab explained that the White Paper demonstrated the government’s ongoing commitment to ‘proper parliamentary scrutiny of our exit from the EU’.

Earlier in the year on 14 March 2018, Chloe Smith MP, the Minister for the Constitution, noted in evidence to the House of Lords Constitution Committee, another way in which the government could show such a commitment:

The second point your comment raises is the idea of whether there ought perhaps to be a constitutional impact assessment of every Bill, in the same way as we do an equality impact assessment, an environmental impact assessment or what have you.

This post examines how a constitutional impact assessment might enhance parliamentary scrutiny of the Withdrawal Agreement Bill. In doing so, I look back at the lessons of the scrutiny of the European Union (Withdrawal) Act 2018 (the Withdrawal Act), which received Royal Assent in June 2018, nearly a year after it was introduced to the House of Commons in July 2017. Continue reading