Tuesday 14 November 2017

Brexit Round 6 and promise of a EU (Withdrawal and Notification) Bill

The moment the 2 year period was triggered
Round 6 of the Brexit negotiations were held in Brussels on 9th and 10th November and concluded without any major breakthrough on either Citizens' rights, Northern Ireland or the Financial settlement.  The EU seeks agreement on those matters before it will discuss matters such as the future trading relationship.  The EU negotiators (Mr Michel Barnier et al) are bound by the Guidelines set by the European Council - (see post 1st May 2017).

End of round statements:

David Davis (Secretary of State for Exiting the EU)

Michel Barnier - Chief Negotiator

The "European Union Newsroom" is a useful site for information about Brexit

Statement to Parliament 13th November:

On 13th November, Mr Davis made a statement to the House of Commons - see Hansard 13th November.   See also Dept. for Exiting the EU announcement.  In his statement Mr Davis said:

" .....  I can now confirm that, once we have reached an agreement, we will bring forward a specific piece of primary legislation to implement that agreement. It will be known as the withdrawal agreement and implementation Bill. This confirms that the major policies set out in the withdrawal agreement will be directly implemented into UK law by primary legislation, and not by secondary legislation under the withdrawal Bill. It also means that Parliament will be given time to debate, scrutinise and vote on the final agreement we strike with the European Union. The agreement will hold only if Parliament approves it.

We expect the proposed Bill to cover the contents of the withdrawal agreement, which will include issues such as an agreement on citizens’ rights, any financial settlement and the details of an implementation period agreed between both sides. Of course, we do not yet know the exact details of the Bill and are unlikely to do so until the negotiations are near completion. I should also tell the House that this will be over and above the undertaking we have already made to table a motion on the final deal as soon as possible after the deal is agreed, and that we still intend and expect such a vote on the final deal to happen before the European Parliament votes on it. There cannot be any doubt that Parliament will be intimately involved at every stage.​"

The proposed EU (Withdrawal and Implementation) Bill is a crucial commitment and it will implement the final withdrawal agreement. 

Following Mr Davis' statement, Mr Kenneth Clarke MP asked for reassurance that Parliament will have a "legally binding, meaningful vote, in which it will approve or disapprove of any final agreement, or lack of agreement, before we leave the European Union?"  Mr Davis replied - " ...  yes, we will have a meaningful vote, as has been said from this Dispatch Box any number of times. What I have been saying today is that we are going to add to that, over and above the meaningful vote on the outcome—on the deal—legislation which puts it into effect. In other words, the House will be able to go through it line by line and agree it line by line."

Mr Owen Paterson MP (North Shropshire) asked - "If the House of Commons votes down the new withdrawal Bill, will the consequence be that we will still leave on 29 March 2019, but without an agreement?"  To this Mr Davis simply replied - "Yes."

That answer is a statement of the position under Article 50 TEU.  The 2 year period was triggered on 29th March 2017 and the UK leaves 2 years later either with or without agreement.  Regrettably, there is an impression that some MPs have not grasped this key point.  Art 50 provides for an extension of the 2 year period but the UK would have to request this and it requires unanimity in the European Council to approve it - Art 50(3).  It is an open question at this stage whether the UK will seek an extension.   Such an extension must not be confused with the possibility of a "transition period."  The latter would be a period included in a withdrawal agreement and would avoid a cliff-edge Brexit.  In her speech at Florence, the Prime Minister referred to a strictly time-limited period of around 2 years - PM Statement 9th October and Florence Speech.

Committee stage for the present European Union (Withdrawal) Bill starts 14th November and numerous amendments have been tabled.  The latest amendment paper contains 191 pages (pdf).  It remains to be seen how the committee stage will fare given the commitment to additional legislation.

The EU (Withdrawal) Bill Clause 9:

The proposed Withdrawal and Implementation Bill raises a question about what Clause 9 of the present EU (Withdrawal) Bill will be used for.  The question was raised by some MPs including former Attorney-General Mr Dominic Grieve QC MP.  Clause 9(1) states:

"A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day."

Mr Grieve said - ".... I do not see how it is acceptable that we should implement Brexit by means of clause 9 to have a statute after the date of our departure. My anxieties are greatly heightened by the extraordinary amendment tabled by the Government on Friday. If we run out of time, surely the answer is none of the suggestions that have been put forward; in fact, the answer is that the time has to be extended under article 50, so that all parties are able to deal with it. That is the mechanism provided, and surely that is the mechanism that the House and the Government should be following."

Possible timetable:

An outline of a Brexit timetable is now emerging.  Withdrawal Agreement achieved by October 2018 and then the EU (Withdrawal and Implementation) Bill.  If Parliament rejects this Bill then the UK would have rejected the withdrawal agreement and the UK will leave on 29th March 2019 without agreement.  If Parliament accepts the Bill then the UK will leave at whatever date is set by the withdrawal agreement - e.g. at the end of a transition period.

What if MPs decide to both reject the Bill and also remain a member of the EU.  At the moment I do not see this as particularly likely given the political commitment to honouring the referendum outcome but it is a possibility.  Should this happen, Parliament would need to instruct the government to approach the EU and seek revocation of the notice under Article 50.  That takes us back to the unresolved question - discussed here and here - as to whether the notice may be unilaterally rescinded. 


On Twitter and elsewhere a point keeps being raised about the arithmetic of the referendum.  We know that of those who actually voted,  the outcome was 51.9% leave and 48.1% remain - BBC News June 2016.   The turnout was 72.2% and so 27.8% of those eligible to do so did not vote.

A typical tweet was - "Please don’t use the lie that over 50% of the population voted for Brexit. Only 37% of a restricted electorate voted for Brexit. And only 27% of our overall population voted for it. It is tyranny of the minority."

Note: My tweets never referred to "population" but ......

the legal fact is that Parliament provided for the referendum in the EU (Referendum) Act 2015 and set down who was eligible to vote.  No specific minimum majority was specified in the legislation and so a simple majority of those who actually voted sufficed.  It is also a legal fact that the 2015 Act did not make the referendum outcome legally binding on the government BUT politically it has been accepted as binding and, in fairness. the government promised to abide by the result of the referendum.  The famous phrase of Lord Denning MR in Blackburn v Attorney-General comes to mind - "legal theory does not always march alongside political reality."

Over 500 days after the referendum, arguments based on such arithmetic are hardly likely to stop Brexit.  The opportunity to set the referendum rules was back in 2015 and Parliament did not set any special rules. 

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