It has been an interesting day, to say the least, as the UK
parliament prepares itself for next Tuesday’s all-important vote on the EU
Withdrawal Bill. It started with the ECJ Advocate General who opined that the
UK may be able to unilaterally rescind its Article 50 notification. It ended
with parliament beginning the first of five days of parliamentary deliberation on
the Withdrawal Agreement and the government suffering some major defeats on
legislative matters.
Although the ECJ Advocate General, Manuel Campos Sanchez-Bordona, merely expressed his opinion, which is not the same as a legal ruling, the suggestion that the UK may be able to unilaterally rescind its Article 50 notice was significant. In order for this to become law, it would have to be ratified by the judges but it is generally believed they will back the Advocate General’s stance. What is important is that although the law currently requires unanimity between the negotiating partners in order to extend Article 50 beyond the default two year period, it says nothing about the process to be followed in the event that one or more party wishes to withdraw the notice.
But in the view of Mr Sanchez-Bordona, there are a number of caveats. It would have to be conducted in accordance with the UK’s constitutional arrangements, which in effect means it would require an Act of Parliament – the government cannot simply decide by itself. Moreover, the UK would have to act in “good faith.” This means the UK cannot withdraw its Article 50 application simply to improve its bargaining position. Nonetheless, this offers the UK a potential get-out-of-jail card in the event that it is unable to secure an acceptable Brexit. More importantly, it is perhaps the first sign that the EU is prepared to offer the UK a face-saving way to remain a member should the need arise.
Domestic events were dominated by the parliamentary debate on the Withdrawal Bill. Prior to the debate taking place, the government was defeated on key ballots which highlight the extent to which parliament is taking control of the Brexit process from the government. In the first instance, parliament won a vote allowing MPs to instruct ministers on how to proceed in the likely event that the government loses next week’s vote. This will effectively give MPs the power to look at alternatives to a no-deal Brexit (the government’s apparent “Plan B” at present) which can only be good news since it reduces the chances of crashing out of the EU without a deal.
Equally significant was the fact that the government was held “in contempt of parliament” (in other words, a charge of obstructing the working of parliament) for failing to reveal the confidential advice given to ministers regarding the Withdrawal Agreement. This information will now be released to parliament tomorrow and it will clearly highlight a lot of the unattractive features of the deal, notably the limited extent to which the UK has room for manoeuvre in its dealings with the EU under the present terms of the Agreement.
What is particularly concerning is the extent to which government lawyers believe the UK will become trapped by the Irish backstop. Recall that the backstop agreement envisages the UK remaining in the European customs union and that in the absence of another solution, the UK will only be able to leave with the consent of the EU. Moreover, the UK will not legally be able to negotiate free trade agreements with third countries so long as it remains in the customs union, so in effect the UK will only be able to pursue FTAs with the consent of the EU. Anybody who thinks that the terms of the deal are unattractive now will surely be confirmed in their view by the legal advice. Although the contempt charge probably sounds a lot worse than it is, today marks the first occasion that ministers have been charged with this ancient offence. By forcing the government to reveal the full extent of its legal advice, this reinforces the view that government is losing control of proceedings.
It is, of course, easy to be sucked into the media frenzy that occurs when big parliamentary events take place. But if we have learned anything today, it is that Theresa May’s chances of getting parliament to pass her deal have receded further. The ECJ’s legal opinion may embolden MPs to believe that the choice of May’s deal or no deal does not represent the full spectrum of events. For what it is worth, I continue to believe that an extension of the Article 50 period is very much an option. A week from now, we should know which way the vote has gone. If the deal is rejected, expect a new debate to begin about what kind of Brexit the UK wants – a debate politicians should have been having for the past two years.
Although the ECJ Advocate General, Manuel Campos Sanchez-Bordona, merely expressed his opinion, which is not the same as a legal ruling, the suggestion that the UK may be able to unilaterally rescind its Article 50 notice was significant. In order for this to become law, it would have to be ratified by the judges but it is generally believed they will back the Advocate General’s stance. What is important is that although the law currently requires unanimity between the negotiating partners in order to extend Article 50 beyond the default two year period, it says nothing about the process to be followed in the event that one or more party wishes to withdraw the notice.
But in the view of Mr Sanchez-Bordona, there are a number of caveats. It would have to be conducted in accordance with the UK’s constitutional arrangements, which in effect means it would require an Act of Parliament – the government cannot simply decide by itself. Moreover, the UK would have to act in “good faith.” This means the UK cannot withdraw its Article 50 application simply to improve its bargaining position. Nonetheless, this offers the UK a potential get-out-of-jail card in the event that it is unable to secure an acceptable Brexit. More importantly, it is perhaps the first sign that the EU is prepared to offer the UK a face-saving way to remain a member should the need arise.
Domestic events were dominated by the parliamentary debate on the Withdrawal Bill. Prior to the debate taking place, the government was defeated on key ballots which highlight the extent to which parliament is taking control of the Brexit process from the government. In the first instance, parliament won a vote allowing MPs to instruct ministers on how to proceed in the likely event that the government loses next week’s vote. This will effectively give MPs the power to look at alternatives to a no-deal Brexit (the government’s apparent “Plan B” at present) which can only be good news since it reduces the chances of crashing out of the EU without a deal.
Equally significant was the fact that the government was held “in contempt of parliament” (in other words, a charge of obstructing the working of parliament) for failing to reveal the confidential advice given to ministers regarding the Withdrawal Agreement. This information will now be released to parliament tomorrow and it will clearly highlight a lot of the unattractive features of the deal, notably the limited extent to which the UK has room for manoeuvre in its dealings with the EU under the present terms of the Agreement.
What is particularly concerning is the extent to which government lawyers believe the UK will become trapped by the Irish backstop. Recall that the backstop agreement envisages the UK remaining in the European customs union and that in the absence of another solution, the UK will only be able to leave with the consent of the EU. Moreover, the UK will not legally be able to negotiate free trade agreements with third countries so long as it remains in the customs union, so in effect the UK will only be able to pursue FTAs with the consent of the EU. Anybody who thinks that the terms of the deal are unattractive now will surely be confirmed in their view by the legal advice. Although the contempt charge probably sounds a lot worse than it is, today marks the first occasion that ministers have been charged with this ancient offence. By forcing the government to reveal the full extent of its legal advice, this reinforces the view that government is losing control of proceedings.
It is, of course, easy to be sucked into the media frenzy that occurs when big parliamentary events take place. But if we have learned anything today, it is that Theresa May’s chances of getting parliament to pass her deal have receded further. The ECJ’s legal opinion may embolden MPs to believe that the choice of May’s deal or no deal does not represent the full spectrum of events. For what it is worth, I continue to believe that an extension of the Article 50 period is very much an option. A week from now, we should know which way the vote has gone. If the deal is rejected, expect a new debate to begin about what kind of Brexit the UK wants – a debate politicians should have been having for the past two years.
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