Brexit and the Law

Lambert: A round-up of Brexit options, hard and soft. Wouldn’t the Brits have an easier time of it if they wrote their Constitution down?

By Silvia Merler, an Italian citizen, who joined Bruegel as Affiliate Fellow at Bruegel in August 2013. Her main research interests include international macro and financial economics, central banking and EU institutions and policy making. Originally published at Bruegel.

What’s at stake: last week, the UK High Court ruled that the triggering of Article 50 – and therefore the Brexit process – should involve the UK Parliament. The Government will appeal the decision but this has created a new wave of uncertainty about the timing of Brexit, and on what this involvement can mean in practice. We review the different opinions.

Jo Murkens on the LSE blog has a very good explainer of the legal basis of the judgement, which he considers exemplary in its clarity and reasoning. The decision’s focus is strictly constitutional, not political: the only question it examined was whether, as a matter of UK constitutional law, the Crown, acting through the government, is entitled to use prerogative powers to trigger Article 50 in order to cease to be a member of the European Union. This – it turns out – hinges on a balance between constitutional requirements and individual rights.

Article 50 allows the UK to withdraw from the EU “in accordance with its own constitutional requirements”. Turning to these requirements, the government argued that the Crown – through the government – has a prerogative power to authorise the UK’s withdrawal from the EU, and that this power can only be taken away by express terms in an Act of Parliament. The court acknowledges the government’s position as correct, but only with respect to rights and obligations created as a matter of international law. As soon as individual rights protected by domestic law are affected, Parliament must be involved, especially because some individual rights would be lost upon withdrawal, as they cannot be replicated in UK law. Murkens argues that the decision amounts to a proper drubbing for the government particularly because it was not the claimants that landed the hammer blow, but the government itself, by acknowledging that the Art.50 notification would inevitably lead to the loss of some individual rights. The next stop, however, is the UK Supreme Court.

David Allen Green writes in the FT that the High Court decision is as strong as it could be and creates a substantial problem for the prime minister’s Brexit policy. The government should look hard at the reason for the court’s judgment. Central to the judges’ thinking is the impact that leaving the EU will have on the rights of UK citizens: the court has said that extinguishing such rights cannot be done by mere executive action. But the problem is more than one of form. The difficult and interlocking legal issues created by the UK leaving the EU are such that the matter is not for a prime minister, or indeed a court, to decide.

Allen Green argues that the government is not taking the opportunity offered by the judgment to start the exercise again, properly: an appeal has been announced and the court has been denounced. Those in favour of the UK remaining in the EU can draw only limited comfort from the decision, because there is no reason to believe parliament will directly defy the result of the referendum. The only thing that has been undermined by the High Court’s decision is May’s superficial approach to achieving Brexit. Eventually, the government will have to adopt a broader, more collaborative and more open approach to the process, as there is no alternative to making a success of it.

Camilla Macdonald discusses three options and argues that the ruling is not a victory for “soft” Brexit. The first option is for the government to succeed in overturning the result on appeal to the Supreme Court. MPs will then have the chance to debate at length, but they will have lost the leverage over the Government that the current ruling affords them. Second, the Government may lose the appeal and yet manage to “face down the rebels” in the Commons in time to meet May’s timetable of triggering Article 50 by March. This could be achieved by passing a non-amendable motion that presents MPs with a binary choice to approve or reject triggering article 50, assuming most MPs would not dare to risk the ire of the leave voting public. The third option – which Macdonald considers the most likely – is that the Government loses its appeal and is forced to introduce primary legislation, i.e. a Brexit bill, that will make it difficult, but not impossible, to meet the deadline. This is likely to force the Government to make concessions to MPs, but not necessarily in any form that will amount to a commitment to a “soft” Brexit.

“Soft Brexit” is what the majority of Labour, the Liberal Democrats, the SNP and part of Conservatives now want, but the biggest obstacle to this outcome is the lack of unity and of a negotiating strategy among this would-be coalition. In this situation, it is hard to see what red lines could be imposed on the government. Yet, Mcdonald thinks that involving Parliament in a process that will ultimately be defined by many complex and cross-cutting trade-offs might help to dispel the myths of simplistic “hard” and “soft” labelling. Nationalist parties would no longer plausibly be able to claim that they are excluded and the ruling could end up being an important victory for thought and reflection over rabble rousing on both sides.

Jolyon Maugham writes on FT Alphaville that after the High Court’s Brexit decision, we should forget about the activation of Article 50 in March. The Government’s appeal is likely to be heard in the Supreme Court in early December and this opens new risks. Lingering, unaddressed, in the background to this litigation is a question about whether an Article 50 notification is reversible. The High Court in reality proceeded on the assumption that a notification, once given, could not be withdrawn. But the Supreme Court has a different legal obligation and it might feel legally compelled to address that assumption directly. Addressing it would require a politically explosive referral to the European Court of Justice, because the question of whether a notification is reversible is one of European law. Beside the likely delay of around three months, a finding by the Supreme Court that an Article 50 notification could be “pulled” would leave ajar the door to a prospectively damaging continuation of the Referendum campaign until the time exit is formalised.

Assuming instead that the appeal fails, the government will have to draft a Bill and place it before parliament. And that Bill would have to pass both Houses of parliament. In the Commons there would be little or no enthusiasm for rejecting it, but it is likely that MPs would impose conditions on the triggering of Article 50, thus constraining the government’s negotiating position. Parliament may wish to choose whether to accept the outcome of the negotiations and it may even require that the deal negotiated by the government be put back to the people in the form of a second referendum. In practical terms, it is difficult to contemplate that these steps – drafting a Bill, debating it in the Commons, voting on amendments, placing it before the House of Lords and then addressing amendments introduced by the Upper Chamber in the Commons again – can sensibly be taken after the result of the Supreme Court appeal is known but before March. So, unless the Supreme Court overturns the High Court’s decision, Maugham thinks we should consider May’s March deadline ancient history.

Stephen Booth at Open Europe makes four main points about what this decision means going forward. First, if Government loses the appeal, then legislation is likely to be necessary. The reasoning of the ruling illustrates that, if the claimants’ argument holds (which regards rights stemming from EU membership set down in parliamentary legislation), the courts were never likely to be satisfied by anything short of legislation to trigger Article 50. Second, parliamentary moves to block Article 50 trigger would be politically explosive. It is unlikely that a majority of MPs in the Commons would actually move to block Brexit by preventing the Government triggering Article 50, especially having voted to give the public the opportunity to vote to leave the EU in the referendum. Booth argues that the same is probably true for the House of Lords, which would create a full-blown constitutional crisis if it opposed Article 50 outright.

Third, Parliament’s leverage over process is far greater than over any negotiating mandate or outcome. So process is likely to be the focus of any parliamentary tussles over legislation to trigger Article 50, with MPs and Lords seeking to amend the Bill to give them greater and more formal powers to scrutinise. Fourth, Booth argues that a general election is not out of the question. This would certainly mean missing the end of March 2017 deadline but would also mean that any MPs seen to be blocking the referendum result would find it very hard to keep hold of their seats and this is why he thinks it is likely that an Article 50 Bill would be passed.

Jacob Funk Kirkegaard of the Peterson Institute for International Economics argues that for now, this turn of events exposes the hypocrisy of May’s government position of wanting to repatriate all EU political powers back to the United Kingdom, but wishing to deny the country’s sovereign lawmakers a say on the Article 50 process. Whatever happens, the court ruling has dealt a blow to the small right-wing clique of hardcore euro skeptics in the Conservative Party and May’s government and the potential direct involvement of Parliament is good political news for Jeremy Corbyn, leader of the Labour Party – as his only path to becoming prime minister is the one that opens up if May and the Conservatives completely botch the Brexit negotiations. He also argues that this should also harden further the EU negotiating position. These developments make it more likely that May will soon be forced to call an early election to seek a new mandate on Brexit. The Conservatives would probably win, but an accelerating economic downturn, the United Kingdom’s first past-the-post-electoral system, and a potential rallying of Remain supporters, could spring a surprise.

Tyler Cowen argues that the British parliamentary vote might matter. The more likely scenario in his view is simply that Parliament stalls, demanding that Theresa May give them “the right Brexit”. Of course there is no such thing, wrong Brexit is wrong Brexit, if only because EU-27 cannot agree on very much. But with enough stalling, eventually another national election will be held and of course Brexit would be a major issue, probably the major issue. That in essence would serve as a second referendum, and if anti-Brexit candidates did well enough, parliamentarians would have cover to go against the previous expression of the public will.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. jabawocky

    Parliamentary approval could also be sought via a private members bill, not a bill introduced by the government, in fact david davis (brexit secretary) appeared to be encouraging this approach during brexit secretary’s questions last week. In any case, if the government forces a vote it will basically force MPs either to back the government’s position (on triggering article 50), or oppose it and be accused of frustrating the will of the people. Thus there is a way around weeks of horse-trading. I think it unlikely the government would lose such a vote, but if it did it may lead to a general election.

    NB.Scotland and N. Ireland MPs will likely vote against triggering article 50, as will the remaining 8 liberal democrats and the one green party MP.

  2. Tom

    Any readers of NC who do not support local rule, and by extension, Brexit, need to rethink their prior assumptions.

    1. Yves Smith

      You are way behind on Brexit. The idea that it would lead to national sovereignty was a con.

      The UK will have to conform substantially to EU rules in order to export to the EU. So by leaving the EU, they still have to comply yet have no influence.

      If they go for a “hard Brexit” of taking no EU immigrants, they lose access to the single market, which is a train wreck, as we have detailed. They can’t even handle the changes required at customs. The IT systems, which already needed an upgrade, won’t be able to handle the greatly increased transaction volume and complexity, and there’s no way they’ll have a new IT system ready in remotely the needed time.

      Oh, and BTW, more immigrants to the UK are non EU immigrants….so exactly how much difference will not allowing EU immigrants make? You can bet businesses will get the same lower wage workers, just from other countries.

      You weren’t keeping your eye on the ball. The reason UKIP was pushing Brexit was to deregulate labor markets (screw workers) and lower environmental regulations. Those are about the only things the UK will be able to change outside the EU>

      1. Synoia

        won’t be able to handle the greatly increased transaction volume and complexity, and there’s no way they’ll have a new IT system ready in remotely the needed time.

        You keep writing this, ignoring the simple approach of throwing people at the problem, and IT catching up later.

        It’s not a IT problem. It is a people problem.

        The reason UKIP was pushing Brexit was to deregulate labor markets (screw workers) and lower environmental regulations

        Which would explain when the Bremain faction in the UK Conservative (Tory) party are pushing full speed ahead to implement Brexit.

        Better the UK get out now rather than keep sliding under the German boot. I suggest some light reading about Europe, starting the the 30 year’s War, the Napoleonic Wars, the Franco Prussian War, WW I and WW II.

        The Eu will prosper directly after the Germans stop believing are Korrect in their economic policies.

        1. Clive

          When you have an IT problem, one of the things which will guarantee failure is to, as you put it “throw people at the problem”.

          For a start, you may not have the right skill sets. Legacy systems need, to state the flippin’ obvious, legacy skills. To quote the National Audit Office:

          Skills to maintain and support legacy ICT become scarcer, leading to gaps in capability. HMRC is facing a shortage of the skills it needs to sustain the VAT legacy ICT due to the current age pro le of its staff. DWP also recognises the skills and knowledge it needs are declining both within DWP and its supplier. We also found that within NHSBSA, its wider ICT estate required a large support team because of the complexity created by its diverse range of legacy ICT.

          Then you have the burden of increased coordination costs and effort — plus the risks involved in more hand-offs and narrower spans of control.

          I’ll throw in the fact that if you’re trying to update a legacy system, the legacy system may not even support the new functions you need. Again from the NAO (it is worth studying the full report in its entirety):

          Limited adaptability. New business requirements may not be supported by the legacy ICT. These may include requirements such as the provision of digital channels, the provision of real-time information and not being able to process transactions in a new way.

          If you think that, conversely, throwing away the legacy system and starting afresh with a greenfield solution is easier, you’re definitely delusional — not only do you have a roll-out to do for the new system, you’re going to have to do a migration exercise for the historical data you still need Live access to.

          Finally, read too (if you like black comedy) the utter disaster that was the U.K. Border Force’s E Borders programme. You would not trust this department to upgrade its iPhone.

          I voted Brexit. But Brexit is too many things to too many different and conflicting groups and their interests / wish-list to be able to get away without a great many ending up being bitterly disappointed. Lefty anti militarism technocrat haters like me are in bed with libertarian free market fundamentalists and one or other of us is going to have to do a Walk of Shame in the morning.

      2. Tom

        So by leaving the EU, they still have to comply yet have no influence.

        You delude yourself that we actually had any influence. Unless it is a vote on a matter where we possess veto there is little influence to be had by design.

        I doubt under any negotiation that we’ll lose access to EU markets as they’d lose access to ours and, if you care to check the numbers, that will hurt the Germans very badly. Given the Germans are the funders of the grand EU project as the rest are bankrupts and soon to be bankrupts, what they say goes.

        1. Yves Smith

          You really are in denial of facts, as most Brexit boosters are. EU leaders, from Merkel on down, have made clear that if the UK rejects free movement of people, it will lose access to the single market. This position is not negotiable. The Germans in particular have repeatedly shown that they are willing to incur economic costs to stick to political principle: the high cost of integrating Eastern Germany, their rigid posture on Eurozone deficits and their refusal to support monetization, Eurobonds, or other mechanisms that would allow for fiscal spending and support EU growth.

          And you also are in denial that the UK had disproportionate influence in the EU, witness that it had an arrangement that was more favorable than that of other members.

          The UK will be bankrupt long before the EU would be. Willem Buiter wrote in 2007 how the UK was precisely the sort of economy that went tits up: a small open economy with an outsized banking sector.

      3. Tom

        The IT systems, which already needed an upgrade, won’t be able to handle the greatly increased transaction volume and complexity, and there’s no way they’ll have a new IT system ready in remotely the needed time.

        1. The intention is to tighten the borders, so why will there be more transaction volume?
        2. Complexity? Going from where to where? You speak like someone with no experience of writing systems.

  3. David

    Although the High Court ruled on purely legal issues, at bottom, this is a political question, not a legal one. I’m personally not convinced that it will be possible to find a majority in Parliament for a simple motion triggering Article 50. Many MPs represent areas that voted Remain, and, the hysteria of the right-wing press already having been factored in, I’m not convinced that those who vote against such a motion will necessarily risk very much in the longer term. What’s more likely is a motion which looks as though it supports triggering Article 50, but in practice sets conditions for a negotiation which some or all of the other 27 cannot accept. If you can’t agree on what you are negotiating about, you’re not going to get very far.
    All this only adds to my sense that Brexit won’t happen – not because it’s too difficult but because it’s impossible. You can reach a point in multilateral negotiations where the interactions become so complex and contradictory that things effectively just grind to a halt. If there’s a will to make progress, if compromises are possible and negotiators are ready to throw inessential bits away, then you can maybe rescue something, even if not what you originally wanted. But I don’t think that those conditions apply in this case.

    1. PlutoniumKun

      I’d agree with this. While Labour (who really are key to this) would be loath to vote against A.50 entirely, there is huge potential for endless parliamentary delay as more and more information is demanded about what the terms of Brexit will be – especially regarding Scotland and NI. That could easily push it past the next election. And a new government may well decide it is not bound by the referendum (they won’t say that directly, they will just say ‘further negotiations are needed’). So it could drag on indefinitely, causing endless political and economic disruption, while nothing fundamental changes. Almost the worst of all worlds (if it wasn’t that a hard Brexit would be enormously damaging).

      1. Clive

        I’ve a hunch (based only on my mother-in-law’s intel from her local conservative party association, and that isn’t very trustworthy given that a) she has a better grasp of cat psychology than politics and she not much better at the former let alone the latter and b) the local party is made up of the worst total crazypants Daily-Mail-is-a-dangerous-left-wing-sell-out Brexiters but nevertheless I offer it here with that copious health warning) that if the Article 50 vote was called (i.e. if the Supreme Court upholds the lower court’s decision, and again, the Supreme’s are much more politically attuned than the High Court judges are and I’m led to believe that the government will exercise its influence on the (cough, splutter) not-at-all-influenced-by-politics Supreme Court Judges) and it was lost in the House, then it would be made the subject of a Confidence motion.

        In other words, even in the light of the Fixed Term Parliaments Act, an early election could still be called if the May administration didn’t get its way on Article 50. According to my mother-in-law (am I really writing this as a serious comment? I am, well, trying to anyway), while the proven, hopelessly-dyed-in-the-wool Brexiter MPs like hers are saying “bring it on” the wishy-washy hope-it-all-goes-away fence sitters are very reticent to have an election which would be just on that issue and “treacherous” Remainers are positively fearful at losing their seats to UKIP so don’t want to face their voters even though they’d like to have, effectively, another go at the referendum but in a different electoral guise.

        You could not make this stuff up, could you? But re-read my health warning and put knobs on it, it is all very happenstance and hearsay information behind it.

        1. PlutoniumKun

          Its probably as sensible as anything else I’ve read.

          I’m pretty sure the Conservatives would do anything to avoid an election now (a few months ago might have been sensible when May seemed like a breath of fresh air. Remember that?). They would have to campaign on a hard Brexit (anything else would revive the UKIP), but this would give everyone else an opening to grab that 49% who voted Remain. An election would, in short, be an unpredictable mess.

          On the other hand, it has the potential to be very funny, in a graveyard humour sort of way. A bit like the US election.

        2. Deep Thought

          The whole situation is happenstance and hearsay. Your information sounds all too plausible, even to someone like me living the metropolitan bubble.

          My London MP, in a constituency that voted overwhelmingly to Remain, has said they “might” vote against article 50 if it came to it. One of the few MPs that has anything to fear about sounding pro-EU and they can’t muster the courage to do so!

      2. Tony Wright

        Looking at this high farce from the other side of the world – they really don’t know what they are doing, do they?!
        The only hope of any sort of positive outcome is that the Italian vote on a new round of EU rules, scheduled for dec. 5 I believe, results in a similar single figure salute to the elites, resulting in Renzi’s resignation and possibly an Italexit.
        This in turn may trigger a domino effect and the demise of German economic bullying , so that Germany can no longer take the trade advantage of a Euro diminished in value by the economic incompetence of some of its Southern member states.

      3. Tom

        The whole “terms of the negotiation” argument is just a nonsense. All they represent is your starting point. You cannot formally agree to a set of terms else there is no negotiation to be had with the other party as you have no lee-way. If the rest of Parliament believes the negotiators can be held to a set of terms then they need more than a little educating in the art of negotiating.

  4. David

    I think that the precedent is that only the Opposition can table a confidence motion, although I suppose in theory a dissident group of Conservatives could. But in that case the Opposition would be able to keep the government in power (even if it lost an Article 50 vote) by not tabling the motion, or combining to defeat any dissident motion, if that in fact is possible. So the agony could continue for quite a long time. Re-reading that I’m not sure how much sense it makes, but we are indeed in a situation which would make the average satirist plead for mercy.
    On a more serious note, there’s very little tradition in the UK of Parliament representing or respecting “the will of the people” and quite a lot against. The British are prone to forget that they live in a representative democracy, where they vote for individuals, allegedly wiser and more experienced than they, who will take decisions for them. MPs often talk about what their constituents’ interests and what they allegedly want, but rarely about the “will of the people”, which sounds far to socialist and populist for the British system.

      1. David

        OK, fair point, I was talking about precedent rather than law. I can’t off-hand remember the last time a government tabled a motion of confidence in itself, if ever, (though I accept its possible). But what would the logic of such a course be? A positive confidence vote wouldn’t change the vote on Brexit, whilst a lost vote (which would require a number of Turkeys to vote for Christmas) would produce an election whose outcome is impossible to predict.

        1. PlutoniumKun

          I think John Major called a Motion of Confidence in himself in order to pass the Maastrict Treaty. In effect, its a way of forcing your party to back you.

        2. PlutoniumKun

          I can foresee a situation where the government simply can’t get a majority on an A.50 where Parliament simply insists on more information on what its voting on (i.e. what the basis for withdrawal will be). But then the EU simply refuses to negotiate until the A.50 declaration is made. So you would end up with a complete legal and constitutional stalemate.

          I really don’t know what the outcome of that would be – most likely an endless round of false negotiations and motions to parliament, each one of which is rejected for different reasons. And then there will be an election.

  5. Anonymous

    Meanwhile, I believe, Farage (DT’s buddy) is talking of surrounding the Supreme Court with a crowd of 100,000, when the Court makes its ruling.

    Mob rule?

    1. Deep Thought

      Farage is less popular than he thinks he is. He has failed to get elected as an MP, despite multiple attempts and (ab)using his MEP salary to fund his campaigns. He even broke the law in 2010 by campaigning on election day (and almost died in the process, Google it!). His 2015 failure was pretty bad, and has only been ignored due to more interesting stuff happening since.

      His stereotypical supporter is a pensioner living outside London in an economically depressed town. It will be interesting to see how many of those can be mustered for a long trip to London in one of the coldest months of the year.

      Meanwhile, London is full of younger people who voted overwhelmingly to Remain, and have already marched twice in support of the EU since the vote. Bias alert: I’m one of them. If it looks like Farage is even close to getting those people out, I have a strong suspicion there will be a bigger march in the opposite direction.

  6. Synoia

    Ah, I see we are all missing the inevitable British Fudge. Some pirouette and change which appears strange, but will achieve many objectives.

    We are dealing with a Conservative (Tory) government.

    1. JustAnObserver

      I would disagree. The Brexiters, esp the hard core `The Dail Mail is full of Leninist stooges’ types – saw (and still see) the referendum as positively their last chance to break with the EU. Hence the throwing of every weapon they could to get their result. As a result IMHO they’ve boxed themselves in so tightly there’s no room for the typical Fudge manoever which would just inflame one or other part of the Brexit constituency. Of course the compromises need to get any sort of reasonable Brexit agreement with the EU are going to inflame them even worse.

      A delay till the 2020 election would be worse in that the age demographics are – arguably – moving against the Brexiters. So a confidence vote election would have to be called soon.

      All in all the most ludicrous political mess imaginable as David Cameron’s (remember him ?) legacy.

      UK politicians, no matter where on the political spectrum, are going to be faced with an array of more or less poisoned chalices for a long time yet.

  7. David

    Yes, but the Brexiters aren’t the only players here. I agree a classic fudge is what’s needed and probably wanted, but the situation has become so surreal and so needlessly complex that I’m not sure our elites today actually have the brains and subtlety to manufacture one. The Great British Fudge was indeed a thing of great beauty, but it required a level of intelligence and imagination that hasn’t been seen for a long while now.

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