Jan 202019
 

On Tuesday, 15 January, the Government suffered the heaviest Parliamentary defeat in history for recommending the ratification of the deal Theresa May has negotiated with the EU27. Nonetheless, the following day, it won a vote of no confidence in the Government.

Various ways forward have been proposed, such as a People’s Vote on the deal or leaving the EU and joining the EEA. However, there does not seem to be a majority in Parliament for any of these options. And, although Theresa May has said she is open to talks with other parties, she does not appear open to changing her red lines, which resulted in the deal she has negotiated.

There is one thing a large majority of MPs do agree on: they do not want a ‘no deal’ Brexit. Jeremy Corbyn has refused to talk to Theresa May unless she takes ‘no deal’ Brexit “off the table”. In her letter to him to remove this pre-condition to talks, she wrote:

I note that you have said that ‘ruling out’ no deal is a precondition before we can meet, but that is an impossible condition because it is not within the Government’s power to rule out no deal.

Actually, it is within Parliament’s power to rule out no deal. On 10 December 2018, the European Court of Justice ruled as follows:

Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State — for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired — to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.

In the Supreme Court judgment in the Gina Miller case 2 years ago, the constitutional requirements to invoke Article 50 were established as follows:

… if, as we consider, what would otherwise be a prerogative act would result in a change in domestic law, the act can only lawfully be carried out with the sanction of primary legislation enacted by the Queen in Parliament.

As a result, the European Union (Notification of Withdrawal) Act 2017 was enacted on 16 March 2017 to authorise the Prime Minister to make the Article 50 notification of the UK’s intention to withdraw from the EU. This implies that primary legislation would also be required to revoke such a notification.

The simplest way to avoid a ‘no deal’ Brexit happening by default may be to amend the European Union (Notification of Withdrawal) Act 2017 by adding a clause 1(3): “The Prime Minister must revoke such a notification [at least 30 days] before the two-year period laid down in Article 50(3)of the Treaty on European Union, possibly extended in accordance with that paragraph, expires unless a withdrawal agreement concluded between the United Kingdom and the European Union has entered into force by that date[, after ratification by Parliament].”

This still leaves Parliament the possibility to continue all the other options, possibly with a request to extend the Article 50 deadline (subject to the unanimous agreement of the other 27 EU Member States). As a result, it should be capable of receiving the support of all MPs (including Theresa May and Jeremy Corbyn) who wish to avoid a ‘no deal Brexit’ by default.

Professor Phil Syrpis, of Bristol University, agrees that “switching the default to revoke from no deal is a possible path forward“. He also drew my attention to this post by ‘SpinningHugo’ to “Change the default“.

There are so many “tribes” in Parliament, especially among Conservative MPs, that there does not seem to be any single solution which will attract the support of a majority of MPs. As EU Council President Donald Tusk said after the defeat of Theresa May’s deal in Parliament:

If a deal is impossible, and no one wants no deal, then who will finally have the courage to say what the only positive solution is?

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