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Decision Time – Why Opposition Parties Need to Agree a ‘Brexit Manifesto’

In the Introduction to my book Brexit Time, I observed that Brexit was not the United Kingdom’s ‘manifest destiny’. Rather it was a choice. And it remains a choice.

We have now reached the point where decisive choices can and need to be made. The options are clear. Under the Johnson Government, the option of No Deal Brexit is actively being pursued. For the opposition parties the options are either for the UK to remain in the European Union or to exit on terms that will see the UK maintain a close alignment and cooperation with the EU.

These are not new options. What is new is that there is now a clear path towards finally making a decision.

The first step is to force the Conservative Government to seek a mandate for a No Deal Brexit through a General Election. That means preventing the Prime Minister from either proroguing Parliament or choosing the date of a General Election beyond the 31 October deadline after which the UK would automatically crash out of the EU.

Before a General Election can take place, MPs will have to pass a motion of no confidence in Boris Johnson’s Government AND form a unity government. Although there has been speculation and controversy over who might lead that unity government, what is more important is what steps it puts in place for a General Election that would allow the electorate to either back a Conservative No Deal Brexit, or pave the way for the other two options – Remain or a softer Brexit – to be tested.

In order for there to be General Election before the UK automatically leaves the EU on 31 October, a further extension to the Article 50 process might well be needed. Nonetheless, for yet another extension to be granted – the third such extension – the EU will want to know that a General Election is likely to produce more rather than less certainty. That means that opposition parties need to agree not just a unity government to take control over the process, but a unity position on the substantive alternatives to a No Deal Brexit.

This is why I think the opposition parties need to come up with a common ‘Brexit manifesto’ to contest a General Election. This would not, of course, replace the party manifestos; after all, a General Election would be about more than just Brexit. But when it comes to outlining the party positions on Brexit, the opposition parties need to agree a common platform.

The difficulty for the opposition parties is the split between those for whom the only viable option is for the UK to remain an EU Member State and those for whom a Brexit alternative based on a Withdrawal Agreement, transition and close future relationship with the EU is a credible option.

The Liberal Democrats might want to maintain the clarity of their current pro-Remain position which has seen them make advances in the polls. The problem with that is two fold. For the Lib Dems a simple Revoke-Remain strategy is not going to attract them the votes of Conservatives for whom Brexit is still their preference but not a No Deal Brexit. Unless they are prepared to accept a compromise position – and with it being highly unlikely that traditional Conservative voters would switch instead to a Corbyn-led Labour Party – those Conservative Leave voters may feel they have no alternative to backing a No Deal Conservative Party under Boris Johnson. For the Labour Party, MPs in Leave-voting constituencies are unlikely to get behind a Brexit manifesto that simply gives voters a choice between a No Deal Brexit or a Revoke-Remain alternative.

My proposal is that the opposition parties unite around offering voters a second step in the form of a referendum with a straight choice between Remain and a Brexit that would keep the UK in the Single Market and a partner with the EU on other forms of cooperation including security. The option of a No Deal Brexit would not need to be put in a referendum because the preceding General Election would either have seen that option accepted – with a Johnson government having a fresh mandate – or it would have been rejected.

This approach allows the key choices to be made. If Boris Johnson wins a General Election he will have a mandate to pursue his preferred form of Brexit. If he loses and either one of the opposition parties has a majority or some type of coalition is formed, the new government would be committed to giving voters a final choice between staying in the EU or leaving the EU but under different terms. Voters would know that this alternative to a No Deal would be on offer regardless of which opposition party they voted for.

It is clear that Labour is backing a strategy of a General Election followed by a referendum. It is imperative that this becomes a shared strategy of the opposition parties.

For this strategy to be viable there does need to be greater clarity and agreement about what a credible alternative Leave option might look like. My own view is that an EEA model is a credible alternative in securing continuing access to the Single Market. It would eliminate customs duties between the UK and the EU and maintain regulatory alignment not just at the point of departure but over time. There are understandable grounds for reticence about the EEA Agreement given that it is almost thirty years old. It would be helpful if the incoming European Commission could signal its willingness to review the operation of the EEA Agreement and how it might be adjusted in light of developments in the last three decades and as the EU reflects on its own future institutional architecture and relations with its near neighbours.

The challenge for the opposition parties would be to approve a Withdrawal Agreement that they have otherwise opposed. The basis for a change of position would be a very different vision of the future for the UK as a whole and a credible alternative to the backstop underpinned by the principle of consent.

Under the Withdrawal Agreement, the UK would enter into a transition period ending on 31 December 2020 or later if it is extended. It is conceivable that an EEA-type future relationship could be ready to commence on 1 January 2021 or a year or two later if a deeper review of the EEA approach was to be undertaken.

During the transition period, Northern Ireland would be in the same position as the rest of the UK with EU customs and Single Market rules applicable during the transition period. Thereafter, an EEA-style agreement would avoid the need for frontier regulatory controls on the island of Ireland but as the EEA Agreement does not create a Customs Union a different approach would need to be considered to secure the avoidance of a hard border. To that end, the UK and the EU should commit to negotiating an agreement to replace the ‘backstop’ under the Withdrawal Agreement to keep Northern Ireland within EU customs arrangements (in addition to its participation in the Single Market through an EEA-style agreement). This new agreement should be the subject of a referendum in Northern Ireland, thereby ensuring that the Good Friday Agreement principle of consent would apply to any difference in approach between Northern Ireland and the rest of the UK. To avoid the Withdrawal Agreement backstop provisions being triggered, this new agreement and a referendum to approve it would need to be in place during the transition period.

All of which will require strong signals from the EU as to its willingness not just to pursue this alternative Brexit but also to implement the steps necessary to ensure that a transition will be successful. This will entail revisiting and revising the text of the Political Declaration to reflect different Brexit priorities. My own view as expressed in an earlier outline proposal is that an ‘Implementation Protocol’ to be added to the Withdrawal Agreement would give confidence as to the commitment of the EU and the UK to move from the status quo to a new set of arrangements.

It is only by offering a credible alternative Brexit that a future referendum choice between Remain and Leave can legitimately respect the interests of voters. Leave voters will have the opportunity in a General Election to vote for No Deal if that’s what they want and again to vote for a different type of Brexit – or indeed to Remain – if Boris Johnson is unable to form a government after an election. Remain voters will know that whatever opposition parties they vote for, the option of remaining in the EU will be put to them in a future referendum alongside a compromise Brexit which they might not want but which would be preferable to a No Deal Brexit.

A General Election is the legitimate way to approve or reject a No Deal Brexit. And if it is rejected, it is only right that voters can choose between remaining in the EU or leaving with a credible alternative Brexit.

Finally, choices can be made that will be both decisive and legitimate.

 

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Could a ‘No Deal’ Brexit Breach EU Law?

How much does EU law really have to say about the withdrawal of a Member State from the EU? This seems like an odd question given how much we know about the role played by Article 50 TEU. For example, we know that Article 50 gives the withdrawing state and the EU a two year window to negotiate a withdrawal agreement whose entry into force results in the EU treaties ceasing to apply to that state. By agreement of the withdrawing state and the remaining EU states, the period laid down in Article 50 can be extended. But once the Article 50 period comes to an end, the treaties shall cease to apply even if there is no withdrawal agreement. Viewed in this way, the departure of a Member State without a withdrawal agreement does not appear of itself to be contrary to EU law.

Nonetheless, the behaviour of the parties is subject to legal stipulations. Article 50 recognises that the decision to withdraw will be taken in accordance with the domestic constitutional requirements of the withdrawing state. What those requirements might be and how they are enforced are matters for the withdrawing state. The Millercase is a good example of UK courts determining what the constitutional requirements were for a UK Prime Minister to trigger the Article 50 withdrawal process.

Maintaining compliance with domestic constitutional requirements is not restricted to the decision to withdraw but necessarily applies to any exercise of executive power that impacts on the withdrawal process. This is clearly implied in the so-called ‘Three Knights Opinion’. While the legality of a No Deal Brexit arising from the acts or omissions of the UK Government is a matter of domestic law to be determined by UK courts, does that mean that EU law remains agnostic?

Whether or not EU law is or should be agnostic about domestic constitutionality has been an open question since the 2016 referendum. Various domestic court cases have sought to impugn the legality of the 2016 referendum and the withdrawal ‘decision’ with a view to claiming that the Article 50 notification was legally invalid and so ought not to be recognised and given effect in EU law. Nonetheless, in the absence of any court determination annulling the 2016 referendum result and instead – following the Miller case – an Act of Parliament authorising the Prime Minister to notify the EU of the UK’s decision to withdraw, there has simply been no plausible legal basis for the legality of the UK’s withdrawal to be called into question from an EU law perspective.

Things have now become a little more complicated for two reasons. The first is the Wightman ruling of the Court of Justice on the capacity of a Member State to revoke its EU withdrawal notification. The second are pending court cases in the UK to challenge the constitutionality and legality of steps that could be taken by the UK Government to engineer a No Deal Brexit.

In Wightman the Court of Justice was asked whether as a matter of EU law it was possible for a Member State to revoke its withdrawal notification prior to the treaties ceasing to have effect in terms of Article 50. The Court concluded that there was a unilateral right to revoke the Article 50 notification. But the Court said that the revocation had to be ‘unequivocal and unconditional’ with the purpose of confirming EU membership. The Court also stated that the notification of revocation followed from a decision taken by the Member State in accordance with its constitutional requirements.  As the Court put it:

 … if the notification of the intention to withdraw were to lead inevitably to the withdrawal of the Member State concerned from the European Union at the end of the period laid down in Article 50(3) TEU, that Member State could be forced to leave the European Union despite its wish — as expressed through its democratic process in accordance with its constitutional requirements — to reverse its decision to withdraw and, accordingly, to remain a Member of the European Union.

It would appear that it is not just the decision to withdraw but subsequent decisions concerning a state’s status as a Member State of the Union that are understood to be taken in accordance with domestic constitutional requirements. Again it is important to emphasise that what those requirements are remain matters of domestic law and the Court of Justice is not in a position to interpret domestic law let alone national constitutional provisions.

Nonetheless, were there to be a suggestion that a government or its Prime Minister was behaving unconstitutionally, the question would at least arise as to what legal effect such acts – or even omissions – should have as a matter of EU law.

This point is underscored when we think of the relationship between what the Court said about a revocation decision being taken in accordance with national constitutional requirements – a matter of domestic law – and the stipulation that a revocation decision had to ‘unequivocal and unconditional’ – a matter of EU law. Although the Court demands that a revocation is unequivocal and unconditional, there is really very little way of enforcing this demand. How would we know that a state was not serious about its revocation decision until after the event? Would the mere fact that a state once again triggered the Article 50 process automatically mean that its earlier decision to revoke was not unequivocal? What would the EU do about it?

Rather, what gives a revocation decision its unequivocal and unconditional character from an EU law perspective is that it derives from a decision taken through a democratic process in accordance with national constitutional requirements. There is a clear linkage between the legality of the decision from an EU perspective and the constitutional qualities of the decision from a domestic perspective. That would seem to be even more so in a situation where the rights of EU citizens derived from EU law – and which an orderly withdrawal seeks to protect – would be affected by a No Deal Brexit which the Court explicitly highlights in its Wightmanruling.

The issue of the constitutionality and legality of the behaviour of the UK Government in pursuing a No Deal Brexit is the subject of a judicial review petition before the Scottish Court of Session and is likely to be raised in proceedings in the English courts. It is first and foremost for the UK courts to determine the legality of a No Deal Brexit from a domestic legal perspective and to provide appropriate remedial protection. What is not clear is what capacity the Union might have to act in response to domestic court proceedings when faced with what could otherwise be a disorderly departure of the EU by the apparent operation of Article 50 itself. It is not obvious how the EU could stop the clock even if there were allegations that the UK Prime Minister was acting unconstitutionally if that issue could not be determined prior to 31 October 2019.

There is one other consideration, however, that should be noted. As was made clear at the outset, Article 50 does envisage that a state can leave the Union without a withdrawal agreement. But can a state choose to frustrate the objective of Article 50, namely to secure an orderly withdrawal? Again in Wightman, the Court of Justice was explicit about the objectives which Article 50 pursues:

Article 50 TEU pursues two objectives, namely, first, enshrining the sovereign right of a Member State to withdraw from the European Union and, secondly, establishing a procedure to enable such a withdrawal to take place in an orderly fashion.

As I have argued elsewhere, the objective of an orderly withdrawal is a means of managing the externalities which this unilateral withdrawal from the Union creates for the remaining EU states: ‘Brexternalities’. It is also for this reason, that the Union has insisted – and the UK has accepted – that the Article 50 process is governed by the legal principle of ‘sincere cooperation’ as laid down in Article 4(3) TEU. The final paragraph of Article 4(3) TEU is especially relevant. It provides this:

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

Given that in Wightman the Court explicitly states that an orderly withdrawal is an objective of the Union pursued by Article 50 TEU, action by a withdrawing state that deliberately frustrates that objective would be a breach of a EU law. It would be actionable by the European Commission using infringement proceedings (Article 258 TFEU) or by a Member State like Ireland (Article 259 TFEU).

To take an analogy from a different aspect of EU law – the obligation to implement directives in national law – the Court makes clear that although a state is not obliged to take any measure to implement before the expiry of the period laid down in the directive for its transposition into national law, the state is prohibited from taking any measure liable seriously to compromise its ability to transpose the directive correctly. In other words, the state can do nothing but what it cannot do is to frustrate an objective of EU law. In its Inter-Environnement Wallonie ruling, the Court noted that it was for national courts to determine whether the actions of the Member State were in fact a breach of the sincere cooperation duty. Accordingly, this issue of EU law could form part of domestic legal proceedings concerning the legality of actions taken by the UK Government to force through a No Deal Brexit.

The on-going significance of the duty of sincere cooperation is underlined in the binding European Council Decision granting the UK the extension to 31 October 2019. Para. 10 of the European Council Decision states:

‘… The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.’

Although aimed at the behaviour of the UK in respect of the ordinary workings of the EU, it serves to underline again the importance attached to the duty of sincere cooperation during the extended Article 50 period and which a deliberate No Deal policy would frustrate.

Whether or not these issues are litigated and with what effect remains to be seen. Commenting on Brexit, former Supreme Court judge Lord Sumption stated that the courts are not there to solve every political problem. To which he might have added that not all legal problems necessarily result in court action. Nonetheless, with litigation over a No Deal Brexit beginning to take shape, it is at least worth considering why a No Deal Brexit could be a breach of EU law itself.

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“Shall” I Explain Why this Spectator Story is “Utter Bollocks”?

The editor of The Spectator, Fraser Nelson has been pushing on Twitter a story by Charles Day on the Spectator blog that there is a legal onus on the EU to “to do a Brexit deal”. The crux of the argument is the mandatory language used in Article 50 TEU which apparently places legal duties on the EU – but not the UK – to negotiate AND conclude “a deal”. In a (later deleted) tweet, Mr Nelson stated that:

The law is clear: the EU is obliged (by its own rules) to offer a deal that Parliament can accept says Charles Day.

I described this claim as “utter bollocks’ in a tweet which got rather a lot of attention. So I thought I should explain my objections. It won’t take long.

Mr Day’s position is this:

Let me be very clear: there is a binding legal obligation upon the EU to provide us with what the media call ‘a deal’. Not only shall they negotiate, but they shall “conclude” one.

This apparently derives from the wording of Article 50 TEU which states:

A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

There is clearly a lot of mandatory language here about what the EU “shall” do once a state notifies the EU of its intention to withdraw.

However, the use of the word “shall” is simply demonstrative of the steps which the institutions “shall” follow in the negotiation and conclusion of an agreement. In this respect, Article 50 merely echoes Article 218 TFEU which sets out in a generic fashion the standard operating procedure to be following by the EU in negotiating international trade agreements. As a reminder, Article 218 TFEU states this:

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission … shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union’s negotiating team. 

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

The same mandatory language is used in the treaties but to do no more than establish the correct steps in the procedure to be followed by the institutions.

Now, would anyone seriously contend that this mandates the EU to do a trade deal with the U.S.A. rather than simply setting out what process to follow should a negotiation be initiated and an agreement be reached that would be capable of being approved and concluded by both sides?

Not only does Mr Day misunderstand the legal significance to be attached to this wording, Mr Nelson extrapolated further in his assertion that the legal obligation extended to the content of the deal insofar as it had to be acceptable to the UK Parliament. Following the logic and the analogy earlier, this would be equivalent to stating that the EU was under a legal obligation to do a trade deal with the U.S.A. that the US Congress would accept.

Politically, it is clearly inadvisable for the EU and the UK to negotiate a deal which – recognising that it has to be approved by both the European Parliament and the Westminster Parliament – they know could not command approval by those institutions. That is why on the EU side, negotiators have kept the European Parliament informed throughout the negotiations.

It would be quite wrong, however, for the EU to interfere in the UK’s constitutional system for parliamentary approval and therefore the responsibility for the negotiation of a deal acceptable to the UK Parliament necessarily has to be a responsibility of the UK Government.

Which is also why the EU has insisted that if the UK wants something different from the Withdrawal Agreement it negotiated with the EU, the UK has to demonstrate what it wants and that what it wants will obtain a majority in the Commons. It is not for the EU to second guess the UK Government or to interfere in the constitutional relationship between the Government and Parliament.

The blame-shifting for a No Deal Brexit is clearly well underway. But can we avoid the utter bollocks of pretending that EU law demands that the EU offers the UK what it wants, not least when three years on from the referendum, we still have very little idea what that might be? Shall we?

Kenneth Armstrong is Professor of European Law at the University of Cambridge and author of Brexit Time – Leaving the EU: Why, How and When?

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Extra Time – But for What?

The point of writing Brexit Time and this blog has been to show how time shapes Brexit. From the timing of the referendum and the triggering of Article 50 to the two-year window for negotiating an orderly withdrawal, time has been a factor at key moments in the Brexit process.

As we approach 29 March 2019 – the UK’s scheduled date of departure from the EU – the European Council has offered the UK extra time to facilitate an orderly exit from the EU.

If MPs approve the deal negotiated between the EU and the UK before 29 March, the EU27 have offered to extend the Article 50 negotiation period to 22 May to allow legislation to be passed in the UK to give legal effect to the Agreement in domestic law.

Even if MPs fail to approve a deal – either because an approval motion is proposed and defeated or because the UK Government delays a vote till after 29 March – European leaders have also offered the UK an extension till 12 April.

The choice of these dates is clearly to avoid getting the UK mixed up in elections to the European Parliament which neither sides wants. The extension till 22 May is less extra time that Theresa May requested in her letter to European Council President Donald Tusk. Despite knowing that the EU27 did not want an extension into the election period, Theresa May had requested a 30 June deadline. The offer from the European Council underlines the European Commission’s position that a longer extension would pose legal risks in the formation of the new Parliament. So although the EU27 have shown some flexibility it’s not at any price.

What is significant about the extension offer is that the original idea of a single deadline of 22 May conditional on MPs approving a deal has been significantly modified by the unconditional offer to extend to 12 April. This is intended to prevent a cliff-edge “No Deal” exit on 29 March. But this offer is also problematic.

Firstly, Parliament is scheduled to be in recess from 4-23 April. In Parliamentary terms this only gives one additional week for a “meaningful vote” to be presented to MPs.

Secondly, as things now stand “exit day” is defined in UK law as 29 March. An extension beyond that date in terms of Article 50 TEU would keep the UK in the EU as a matter of EU law but without domestic law giving continuing legal effect to membership. The European Union (Withdrawal) Act 2018 allows a Minister to change the exit date by regulation and this would need to be approved by Parliament before the 29 March deadline. If MPs have not approved a deal the exit date would be changed to the 12 April default. If by that extended date the Brexit deal has been approved a further regulation would need to change the exit date to the later 22 May deadline on the assumption that the EU27 would agreed to this extended deadline notwithstanding that the vote had not taken place “next week” (as stipulated in the Conclusions to the European Council meeting).

How things play out depends on a couple of key events next week.

On Monday the Commons is set to debate a motion triggered under the EU (Withdrawal) Act as a consequence of the Commons’ second rejection of the EU-UK Brexit deal. Although this is a technical motion on how the Government intends to proceed it is also an important moment for MPs to signal how they want the Brexit process to develop.

A cross-party Amendment has been proposed that changes the normal rule giving precedence to Government business so that on Wednesday 27 March MPs can move and debate motions other than a Government motion to approve a Brexit deal. The idea behind this is to give MPs control over Parliamentary business with a view to taking control over the process.

The second key event would be the Government again asking the Commons to approve the Brexit deal. The offer of an extended Brexit deadline assumes that vote will take place the week beginning 25 March although in theory it could be delayed to the week beginning 1 April.

Despite the Commons Speaker’s statement that the Government cannot put substantially the same proposition to the House as the motions previously rejected, the European Council’s formal approval and endorsement of the Brexit deal together with a proposal to lay a draft regulation extending Brexit deadline would likely pass the Bercow test and so allow yet another “meaningful vote” to progress. However following the Prime Minister’s ill-judged berating of the very MPs whose backing she needs it is far from obvious that the deal will be approved.

The EU has made clear it is open to making changes to the Political Declaration if there is a majority in the Commons for an alternative Brexit. There are cross-party moves to articulate what that might look like and if the amendment to Monday’s motion is passed m, the Commons could have the opportunity to come to a view.

But the issue of free movement of people could make consensus on a Common Market 2.0 vision of the future relationship hard to sell to MPs in Leave-voting constituencies.

In the absence of an alternative consensus and in the face of a No Deal Brexit the only option may be to admit failure and requests an Article 50 extension of much longer duration. An extension of a much longer length would suggest a fundamental change in domestic politics is needed to chart a way forward. That could be an early general election or a further referendum.

Politics takes place in time but it is also structured by time. Brexit Time is unrelenting. It is also unforgiving.