Pro-EU Tories are quietly considering a government proposal aimed at averting defeat on the EU Withdrawal Bill.
The MPs are holding back on their response to the compromise offer, though one said they believed it to be insubstantial. The amendment would bind the offer of a parliamentary vote into the bill, but remove Parliamentary control of how the government should respond to any defeat.
Not for the first time, the government is being disingenuous.
The crux of the matter is that the government is not just operating on the international plane, its actions (inactions?) also operate on the domestic plane as the treaty negotiations affect the UK’s constitution and the fundamental citizenship rights of all UK citizens.
This is why the Supreme Court upheld the Divisional Court’s rejection of the government’s claim that it was entitled to use Royal Prerogative to make the Article 50 notification.
As Helen Mountfield, our lead QC in the Miller case, has said, the UK has made a decision, in accordance with our constitution, to notify the UK’s intention to leave the EU – “the EU (Notication of Withdrawal) Act, passed so hastily, only gave the prime minister power to give notice of her current intention to withdraw the UK from the European Union.”
Helen also says “In debating what might happen next, it is vital to remember what is still legally possible. It is politically, as well as constitutionally important to understand that the deed is not yet done. We are not yet tied to leaving the EU; and in fact the prime minister does not yet have power to take us out.”
Indeed there are solid legal arguments that the UK’s Parliament is unable to make a definitive, binding decision on leaving the EU without knowing what the alternative is.
Again as Helen says, rejection of an UK/EU exit treaty (or even no treaty) does not mean that the UK falls out of the EU without a deal – “What happens if, as a result of that vote, parliament rejects whatever deal is on offer? The government says the only other option is to leave with no deal. That is simply constitutionally wrong. In the absence of parliamentary authority, the prime minister cannot take us out of the EU on any terms at all. That is what the rule of law means.”
Quite the opposite, the rejection of an exit deal or a no deal conclusion would, under the UK’s constitution, result in the UK remaining in the EU under the terms that currently exist. Again there is solid and authoritative legal opinion to support this position.
In simple terms, if the UK’s Parliament rejects the UK/EU exit treaty, or the absence of one, then there is no need to withdraw the Article 50 notification. The Article 50 notification fails because Parliament will have rejected the replacement of our EU membership with something else.
Indeed it could be counterproductive to force the UK Parliament to make a decision between the only two clearly defined alternatives that are currently available – exit the EU on WTO terms or remain a member of the EU.
This is perhaps provocative, and it would undoubtedly be clearer for Parliament to set out its position in a Statute, but any attempt by the government to fudge the situation and remove the UK from the EU without primary legislation is likely to be met with another successful court challenge.
As Lord Hope (former Deputy President of the Supreme Court) said “It is all about respecting the sovereignty of Parliament. The law will see to that whatever the Government think, as it always does. I do hope that the Government will be sensible about this, and that further recourse to the courts will not be necessary”
Notes:
The Opinion’s authors are Sir David Edward KCMG PC QC, Sir Francis Jacobs KCMG PC QC, Sir Jeremy Lever KCMG QC (retired) and the QCs that acted for the People’s Challenge Group in R (Miller) vs SSExEU, Helen Mountfield QC and Gerry Facenna QC.
Sir David Edward QC practised at the Bar in Scotland prior to his appointment as the United Kingdom’s Judge at the European Court of First Instance from 1989-1992 and subsequently Judge of the European Court of Justice from 1992 until 2004. In 2004 he returned to become a part-time judge of the Court of Session in Scotland. He is a Privy Councillor, Professor Emeritus at the University of Edinburgh and an Honorary Fellow of University College, Oxford.
Sir Francis Jacobs QC served as the United Kingdom’s Advocate General at the European Court of Justice from 1988 to 2006, having previously combined an academic career as Professor of European Law at the University of London with practice at the Bar. He is the President of the Centre of European Law at King’s College London and a visiting professor at the College of Europe. He was appointed a Privy Councillor in December 2005 and continues to practice at the Bar.
Sir Jeremy Lever QC is one of the most senior and respected figures in EU and competition law. During his more than fifty years at the Bar he acted in many of the leading cases in the fields of European law, competition law, and regulatory public law, including on behalf of the UK Government, the European Commission and the European Parliament. He is a Distinguished Fellow and Senior Dean of All Souls College, Oxford and in 2003 was knighted for services to European Law.
2. Supreme Court decision in R (Miller) vs SSExEU
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Published by Grahame Pigney on behalf of The People’s Challenge Ltd.
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