Article 50: two years on


Anand.Menon

On 29 March, The UK in a Changing Europe published Article 50 two years on, summarising what has happened during the Article 50 process, where we are now, and what might happen in the future. Here, its director Anand Menon offers his own view of how Brexit has been handled since Article 50 was invoked by the government, and offers an insight into some of the topics contained in the report.

Two years on. So little progress made. As metaphors go, watching parliament hold a series of eight votes and fail to muster a majority on any of them was not too bad at all.

And yet, and yet. For all the outward signs of chaos emanating from Westminster, things are moving. It was never going to be easy for MPs to ‘take control’ of Brexit, if only because all they control even now is the parliamentary diary. Parliament isn’t set up to make it easy for MPs to both set their own agenda and make decisions.

Moreover, it strikes me as slightly misguided to criticise the House of Commons for failing to come to a clear decision on Brexit. For on this if on nothing else, our MPs represent us faithfully. Like the public at large, they are deeply divided on the question of leaving the European Union, and therefore – again like us – it is not clear which if any of the possible outcomes a majority of them might agree on. 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

The House of Commons and the Brexit deal: A veto player or a driver of policy?

pastedgraphic-1-e1494926560214With parliament set to vote on the government’s Brexit deal today, there is much speculation about what will happen if it is rejected. Here, former Clerk of Committees Andrew Kennon analyses the potential scenarios, including whether or not the House of Commons could end up running the country directly.

A key concern for the House of Commons when voting on the proposed deal with the European Union will be not only the merits of the agreement itself, but what happens if it is defeated. In theory, parliament – and in particular the House of Commons – is the ultimate source of constitutional authority within the UK system. But, in this particular circumstance, if MPs reject what is on offer, will they be able to take the initiative and impose a different course of action, or will they simply have to wait for the government to act?

The key problem for MPs wanting to implement other solutions to the Brexit deal is time – not just 29 March but debating time on the floor of the House. The government has complete control of the business and time of the House – with the exception of specific time set aside for the opposition and backbench business. Furthermore, any solution which requires legislation could only get through parliament with the government’s support.

But is it possible to contemplate the House taking the initiative in finding a solution to Brexit? If the government’s deal does not pass in the House on 15 January, might the government really say ‘we want to hear what the House thinks of the various options’?

An ‘All-Options’ debate?

At this point many MPs will want – and the public might expect – a debate leading to a vote on a whole range of options. In procedural terms, there is a clear precedent from 2003 when the House voted on a variety of options for the composition of a reformed House of Lords – though the salutary lesson from that experience is that each option was rejected. One group of MPs will be solidly opposed to opening up the options like this: those who oppose the government’s deal and want a no-deal exit. Continue reading

Could an ‘indicative vote’ break the Brexit logjam?

albert_weale (1)An indicative vote on the government’s Brexit deal has been suggested as a means of determining which of the options available to parliament has the best chance of securing the support of the House of Commons. In this post, Albert Weale examines how an indicative vote process would work, and whether or not it offers a workable solution to what appears to be a parliamentary impasse.

Pressure is growing for an indicative vote in the Commons to break the Brexit logjam. Such a vote would allow MPs to vote on a number of alternatives to the government’s ‘deal’, as laid out in the Withdrawal Agreement announced in November. The purpose of such a vote would be to see whether there was significant support in the Commons for each of the specified alternatives. A similar exercise was tried in 2003 when the then Labour government was seeking support for reform of the House of Lords, and in particular what balance of elected or appointed members a reformed upper chamber should contain. It did not work then, but could it work in the case of Brexit? Answering this question depends on three things: how many options are voted on, how the votes are counted, and the extent to which MPs engage in strategic voting. All three elements interact in complex ways.

To understand the basic logic, consider a simplified version of the various options that are likely to be proposed. With no abstentions, a majority on a motion in the Commons requires 320 votes to pass. In Figure 1, I have shown five possible motions that could be put to an indicative vote. Other things being equal, the more alternatives there are, the harder it is to obtain a majority for any one of them. Continue reading

How and when might a second referendum on Brexit come about?

download.001alan_renwick.000jess_sargent.000Today the Constitution Unit launches a report on the possible mechanics of a further referendum on Brexit. In the last of a series of posts on this topic, Meg Russell, Alan Renwick and Jess Sargeant sum up the report’s findings, focusing on how a referendum might come about, what question would be asked, and the implications for referendum timing.

Our new report, The Mechanics of a Further Referendum on Brexit, is published today. While the report takes no position on whether a further referendum should be held, it explores the constitutional and legal questions that politicians would need to consider if proceeding with such a poll. Earlier blog posts in this series have considered the timetable, the possible triggers, the referendum question, the legal and regulatory framework, and the implications of extending Article 50. This post, based on the final chapter of the report, draws all this material together to consider how and when a further referendum might occur.

Conclusions from earlier chapters (and posts) include the following:

  • It would take at least 22 weeks to hold a referendum, following parliament’s initial decision. This is required for passing legislation, question testing by the Electoral Commission, and preparing and holding the campaign. An extra six weeks might be needed if a three-option question were used.
  • This implies that Article 50 would need to be extended, but this should be easy to achieve. The biggest complication is the European Parliament elections, due in late May 2019.
  • Given the planned parliamentary processes around Brexit there are five basic scenarios in which a referendum might be triggered – these are examined further below.
  • There are three viable options to put to a referendum – accepting the government’s deal with the EU (assuming there is one), leaving without a deal, or remaining in the EU. A yes/no vote on the deal would be unwise (as the meaning of a ‘no’ vote would be unclear). A two-part referendum would also be problematic. Hence the public might be offered the choice between two options, or all three options, in a single-question referendum.
  • The franchise for the poll should remain the same as in 2016, to avoid exacerbating arguments about legitimacy. Some updates to regulation (particularly regarding online campaigning) would be advisable.

Continue reading