Friday 10 November 2017

Setting Brexit Day in stone? An unwise move. (Addendum 15th November)

Article 50 of the Treaty on European Union (TEU) and the European Union (Withdrawal) Bill are both in the news again as serious doubts are developing about the economic wisdom of Brexit.

Article 50 Notice:

Lord Kerr of Kinlochard, who was Britain’s permanent representative at the EU before becoming ambassador to the US,  drafted Article 50 TEU and has always been of the view that a notification under Article 50(2) may be unilaterally revoked by the State which gave the notice.  This point could easily have been dealt with when the Article was being drafted but, unfortunately, it was not.  Lord Kerr is now calling upon the government to publish any legal advice it has received from the Law Officers on this point - The Independent 10th November 2017.

The government
does not usually disclose the advice given by the Law Officers though, exceptionally, the Attorney-General's advice relating to the Iraq War was eventually published - Independent 23rd April 2005.

There has been a considerable amount of opinion as to whether the notification is unilaterally revocable - 20th October - "More on the revocability of the Article 50 notice"

Fixing Brexit Day in law:

The European Union (Withdrawal) Bill was published on 13th July and Committee Stage in the House of Commons is set for 14th November.  As at 9th November the pdf version of the amendment list extends to 187 pages.

Clause 1 of the Bill currently states - "The European Communities Act 1972 is repealed on exit day."  The term "exit day" is defined in Clause 14 as "such day as a Minister of the Crown may by regulations appoint."  This clause was considered in this earlier post of 10th August.

The fact that the Bill itself does not specify 29th March 2019 as "Brexit Day" has been the subject of considerable comment - for example, Politico 18th September.  It is now reported that the government plans to put forward an amendment to the Bill in order to fix in law the time and date of Brexit - BBC News 10th November.  This, it is claimed, will address concerns of Brexiteers who fear slow negotiations and opposition to the divorce could cause delays.

Fixing the date in law might make good sense but only IF there was very clear information available about both the government's plans for Brexit and the likely impact on all sectors of the economy.  If such plans exist they have not been revealed and it cannot be said that negotiations with the EU are proceeding particularly well over crucial matters such as individual rights and the size of the financial "divorce bill."  The European Parliament considers that the UK's latest offer on EU citizens' rights is inadequate - The Independent 9th November.  Then there is the matter of the as yet unrevealed "Brexit studies" which are the subject of the 1st November Humble Address - previous post 8th November.

Against such a background, it would be exceptionally unwise for Parliament to adopt a head in the sand attitude and commit to specifying a Brexit date in law in what may well be a forlorn hope that all will be well.  Parliament needs to preserve what control it has, insist upon FULL information and await matters such as the outcome of the Brexit negotiations.  It must not be deflected by vocal media-backed Brexiteers who are keen to see Brexit at any price whatsoever.

For a further view see Brexit Time - Exit Day: what does it mean for a transitional deal?  On this view, additional legislation would be required to give effect to any transitional deal in the event that such an arrangement is negotiated with the EU.

Jolyon Maugham QC - Prospect Magazine - The Withdrawal Bill needs amending but this amendment will not do

Bob Neill MP - The Guardian - I'm not a 'Brexit Mutineer'.  I'm proud to fight for democracy

Addendum 15th November:

Committee stage for the European Union (Withdrawal) Bill started on 14th November.  According to the Telegraph 15th November - "Theresa May is facing a rebellion from at least 15 Conservative MPs who are threatening to block her plans for Brexit in Parliament.   The group, which includes several former ministers, have informed senior party figures that they will join forces with Labour to block new measures that would enshrine the date of Brexit in law."

It is entirely possible to be in favour of Brexit and against the inclusion of an exact date/time on the basis that doing so could restrict the ability of Parliament to respond to events as they arise. - How the EU Withdrawal Bill could change the course of Brexit -  Three significant disputes — over the exit date, the process of agreeing a transition, and what would happen if no deal is agreed with the EU27 — could convince Tory rebels to vote with Labour and ultimately restrict the government’s ability to deliver Brexit on its own terms.

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