Friday, 18 January 2019

Taking no deal off the table ?

The withdrawal agreement was rejected but the government survived the vote of no confidence and started to have talks with political party leaders and others about the way forward.  The Labour Party is not engaging in such talks unless "no deal is taken off the table"  but it is said that "no deal" cannot be taken off the table!  Legally, it is possible.

There appears to be no political consensus to hold either a further referendum (which, it is claimed, could take a year to organise) or to revoke the Article 50 notification.  [The issues and timescale for a further referendum were considered in this post a year ago - 18 January 2018].

Viewed objectively, it is beyond any doubt that a no deal exit from the EU will be immensely damaging to the economy and the lives of many people - see Foreign Policy - 2 October 2018.

The government is to make a statement to the House of Commons on Monday 21st January and will table a motion which is amendable.  A full day will be available for debate on 29 January.

Take no deal off the table:

The inexorable result of Article 50 is that the UK leaves the EU on 29 March unless the EU Council unanimously grants an extension which, so it appears, the UK government will have to request - (see Note 1).  This is precisely why leaving with NO DEAL is the default position rather than remaining a member.

It is not clear what reasons would be acceptable to the EU in order to grant an extension.  It is also not clear how long such an extension could be.  Mr Guy Verhofstadt ( European Parliament Brexit representative ) expressed a view in the European Parliament that an extension should not go beyond the forthcoming European Parliament elections.

As a matter of domestic law, "Exit Day" is set out in the European Union (Withdrawal) Act 2018 which repeals the European Communities Act 1972 on exit day and exit day is 29 March at 11pm.   The 2018 Act permits the time of departure from the EU to be altered but it does not permit Brexit to be cancelled - (see Note 2 below). 

No deal can be taken off the table but only by either (a) the House of Commons approving a withdrawal agreement and framework for the future relationship or by Parliament legislating to revoke Article 50 if no deal acceptable to a majority in the Commons can be achieved.

Stalemate exists at the moment because the withdrawal agreement stands rejected and there is no political will to revoke the Article 50 notification and cancel Brexit which would, of course, be contrary to the majority vote in the 2016 referendum.

The Speaker:

The Speaker of the House of Commons has a role which requires that rights of the House of Commons and its members are upheld.

While most business in the House is largely controlled and timetabled by the Government, there is an important need to protect the rights of parliamentary minorities.

A peerage is normally granted by the Crown to former Speakers but it appears that this is threatened by the government in the case of Speaker John Bercow.  A "Cabinet source" (not named) has reportedly said - "It's a good job peerage nominations are in our gift" and "I'm sure we'll be thinking carefully about which individuals we would choose to elevate to the House of Lords. I can't imagine we would look favourably on those who've cheated centuries of procedure."

This matter is likely to raise its ugly head when Mr Bercow opts for retirement but to deny the peerage would be a spiteful act by a government which has, throughout the Brexit process, sought to keep Parliament as far removed from decision-making as possible and which has clearly disliked some of the decisions made by the Speaker over matters such as selection of amendments to be considered by the House.


Note 1 - Article 50 requires agreement to extend beyond the 2 years specified in the article.  It is actually silent as to which side would initiate the process for extension.  Normally it would be more likely to be the State seeking leave the EU.

Note 2 - "Exit Day" is defined by the Act to mean 29 March 2019 at 11.00 p.m. but that can be amended if a Minister makes Regulations and those regulations are approved by resolution of both Houses of Parliament.  On this see the 2018 Act section 20(4) and also Schedule 7 paragraph 14.

No comments:

Post a Comment