16 October 2017

Labour’s Sir Keir Starmer and the Conservatives’ Ken Clarke both say that Parliament should reject a ‘no deal’ outcome on Brexit. Raphael Hogarth argues that this is an issue on which parliamentarians are less powerful than they might hope.

Over the weekend Sir Keir Starmer, Labour’s Shadow Minister for Exiting the EU, said: “we want a vote on [no deal] and I can tell you we'll vote against it". Former Conservative Chancellor Ken Clarke echoed these comments on the Today Programme, making the point that “Parliament can veto anything it wants”.

They are right that Parliament can more or less do what it likes on domestic law. But the Brexit process is governed by EU and international law, over which Parliament has no control.

There is no vote expected on ‘no deal’, but Parliament could demand a vote of sorts

As things stand, if the Government wants to walk away from negotiations with the EU27 without a deal, it could do so without any parliamentary involvement.

Parliament could try to change this by amending the EU (Withdrawal) Bill to say that the Government requires parliamentary authorisation to walk out of the negotiations.

However, this would only give Parliament a say on one route to a ‘no deal’ outcome.

The EU27 could walk away too, for instance, if they did not believe further progress was possible. Or it could be the case that neither side walks away, but negotiations do not result in an agreement within the two-year negotiating period under Article 50 of the Lisbon Treaty. In these scenarios, a parliamentary vote on ‘no deal’ would have little effect.

The UK cannot unilaterally extend the Brexit negotiating period

MPs need to realise that they already flung open the stable door when they authorised the Government to serve an Article 50 notice in March, and the horse has bolted. Parliament cannot decide to send the Government back to the negotiating table if time has run out.

If there is no deal then, according to Article 50, the UK will leave the EU without a deal in March 2019. The negotiating period can be extended, but only with the unanimous agreement of the EU27. Parliament does not control this, either.

Parliament might be able to avert ‘no deal’ by stopping Brexit altogether

There is one way that Parliament may be able to avert a ‘no deal’ scenario. This is by passing an Act that instructs the Government to rescind its Article 50 notice, or an Act that attempts to rescind the Article 50 notice.

If Parliament’s intention with that rescission were to keep the UK in the EU, and the EU accepted it, and none of this were challenged in court, then things would be reasonably straightforward. Parliament would have averted ‘no deal’ by keeping the UK in the EU.

However, the situation could get much more complicated if the EU (or a member state) did not accept the rescission. Whether and how the UK could rescind unilaterally would have to be decided by the European Court of Justice.

The upshot is that Parliament would find it very difficult to veto ‘no deal’. Its best hope of a veto is to try to reverse the Brexit process altogether – but even then, there are no guarantees.

Comments

The Article50 text does not cover rescindment of the process - at the moment all that exists on this topic are the opinions of various individuals that it is possible - I think a court case was tried via Dublin to get a legal opinion, however this was discontinued, in part because of opposition by the Irish Government in using their legal system in this way, but primarily because it was expected that the Irish Courts would refer the case to the ECJ for a ruling, and the time taken to get a reply was in excess of the time remaining before end March, 2019.

None of this changes the fact that the Government has caused this parlous state of affairs by extrapolating the Referendum result of "leave the EU" via Party ideology into a series of "red lines" on immigration, etc., thus limiting their exit options to a "deep and special relationship with the EU" or FTA, or alternatively a "No Deal" or fall back on WTO rules. The EFTA/EEA option has been denigrated without valid explanation or justification, starting with David Cameron and continued to this day by the current Government, yet it holds promise to have less adverse impact on the economy, ameliorate significantly customs issues between NI and RoI and, indeed the rest of the UK, move judicial dispute supremacy to the EFTA Court from the ECJ for trade issues and also allow a degree of immigration control - this is unforgiveable when the needs of the country now and in the future should be paramount.

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