Brexit: What Now?

Image: courtesy of Maurice


A lot has been going on it the political world lately in terms of Brexit and sometimes it may be difficult to understand it all, especially if one isn’t an expert. Therefore, we asked one of our law lecturers Kate Goodwin, to explain some of the things going on lately…in legal terms.

Kate: We’re all aware that in the referendum in 2016 the UK people voted to leave the EU by a very narrow majority. In order to leave the EU, the formal mechanism that’s contained in the Lisbon Treaty is the mechanism contained in article 50 and this states that the state who wishes to leave the EU must give notice to withdraw. Initially, the government argued that it was simply entitled to trigger article 50 using some very ancient powers called the Royal Prerogative Powers.

This was challenged in the Supreme Court by a businesswoman Gina Miller, together with other applicants. It was decided by the Supreme Court that actually only parliament has the power to trigger article 50, for the reason that leaving the EU will have a significant change on domestic law because it cuts off the source of EU law and will also impact individual rights. So, the Supreme Court’s decision was that this is such a significant, fundamental constitutional change, that only parliament can make that change. Also in their judgement, the Supreme Court said that the EU Referendum Act 2015 nowhere states that the referendum is legally binding, which is interesting at this particular point in time. That judgement was followed then by parliament passing the EU notification of withdrawal Act of 2017 and as a result of that act, article 50 was in fact triggered. A notice was given to the European Union that the UK would be leaving and it was agreed that parliament would have a meaningful vote on the withdrawal deal, on the deal to leave the EU and as we know, that vote was scheduled for Monday afternoon.

This was announced around a fortnight ago and parliament was allocated four days to debate the current EU withdrawal deal that’s on the table, that Theresa May wishes to put before parliament so 164 MP’s had input during that debate and it was quite evident that the government was likely to lose that vote in parliament, had it gone ahead. So, the thinking was that the government would lose the vote maybe by 100 votes, maybe by 50 votes maybe by 150 votes, but political commentators were united in their view that the government would lose the vote. There was speculation over the weekend that the vote might be pulled, because of the inevitability of the government losing the vote, so the chief whip announced in parliament that the vote had been scheduled for the opportunity for parliament to have its say, in our democracy on the EU withdrawal deal would not go ahead. Now, the speaker John Bercow suggested that this was discourteous to parliament because parliament has spent four days debating the issues, 164 MP’s had contributed, so his suggestion was that the government have to have a vote on withdrawing the vote. The government did not do that. What they did do, is simply gave notice that the vote would not be taking place and the government is constitutionally entitled to do that.

We are in a very uncertain position at the moment and Theresa May has said yesterday that the last possible date to vote on the current deal would be 21st January. Therefore, she will be meeting heads of other European states towards the end of this week, with the aim of negotiating a better deal; particularly on the question of the Northern Ireland backstop, which has proved so unpopular. But again, we are in extremely uncertain times at the moment because the thinking is that the deal is still likely to be rejected unless Theresa May manages to secure significant changes form the EU and the EU has not given any indication that those changes will be given.

The further issue is that if the UK goes back to Europe and asks for concessions or changes in relations to the backstop, will other European nations such as Spain or France also want to renegotiate the arrangement and ask for other changes. This leaves us in an extremely uncertain position and it potentially also impacts how stable the government is and how stable the Prime Minister’s position is.

There were various possibilities that could have occurred over the next few weeks or not have occurred. It was possible that the Labour Party would call what’s called a vote of no confidence in parliament in which case if they were successful in getting a majority the government would have to resign. Now, labour has so far indicated that they don’t plan to do that at this point in time. Were labour to call a vote of no confidence they would need the support of some conservative MPs and some members of the DUP and it’s quite unlikely at the moment that they would get that support, which could be the reason why they haven’t called for a vote of no confidence.

Now that we know that Theresa May’s own MPs have triggered a leadership election within the Conservative Party. So there had to be 48 letters from backbench MPs received by what’s called “The 1922 Committee” of the Conservative Party which triggers a Conservative leadership election. If Theresa May wins, it will not be possible to challenge her leadership within the Conservative Party for another year.

This means that constitutionally very uncertain times and it is very unclear what the outcome of the current crisis will be.

There will have to be a vote before parliament which effectively has been delayed and the latest date for the vote to happen apparently will be the 21st January. It may be that current concerns over the deal that’s on the table will have simply been delayed until January and MPs will then have their opportunities to vote on the deal. If significant changes are made to the deal in the meantime it’s possible that it might be voted through.

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