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Brexit – another week of uncertainty (and it’s only Wednesday)


Wednesday, February 8, 2017

So the uncertainty of what Brexit means rumbles on. The clear trend that is emerging is that Parliament is going to have a far greater say in matters that Teresa May saw when she famously said that “Brexit means Brexit”.

Initially of course May presumed that government alone had all the legal authority it required to plough forward and trigger Article 50. Indeed, in October 2016, she made the following strident statements at the Conservative Party conference:

“It is not up to the House of Commons to invoke Article 50, and it is not up to the House of Lords. It is up to the government to trigger Article 50 and the government alone.”

“Those people who argue that Article 50 can only be triggered after agreement in both Houses of Parliament are not standing up for democracy, they’re trying to subvert it.”

Fast forward to November 3rd 2016, the High Court ruled in the case taken by Gina Miller that Parliament alone had the power to trigger Brexit by notifying Brussels of the UK’s intention to leave the European Union. On January 24th 2017, the Supreme Court rejected the government appeal against the High Court decision and thereby blocked May’s strategy of triggering Article 50 on the basis of executive authority alone [a notable victory for the calm measure of law over the political madness in play]. The net outcome, Parliament would have to pass a law to provide specific authorisation for the triggering of Article 50.

Strike 1!

In an immediate response to the Supreme Court decision, David Davis made a statement to Parliament setting out details of the government’s legislative response and indicated that the government intended to publish an outline bill (providing the authority to trigger Article 50) “within days”. Demands were made on both sides of Parliament to produce a white paper in advance of publication of the bill. This was rejected. By January 25th at Prime Ministers question time – the government reversed that decision and agreed to produce a white paper. Another concession to Parliament.

Strike 2!

So it is now clear that Parliament will have a vote on commencing the process, through the passing of legislation. What is less clear is what role Parliament will have at the conclusion of the process. The latest position appears to be that it will have a vote to accept or reject whatever final ‘deal’ the Brexit team eventually produces.

I question however whether that will in fact be the case. Article 50 has yet to be triggered and already significant gains have been made by Parliament. With the Labour Party in disarray, these gains can hardly be attributed to cunning strategy of the opposition. Could it be that the enormity of this matter is starting to dawn on the government and that it is starting to ‘outsource’ some of this burden of responsibility to Parliament? I think it is highly probable that Parliament will have a far greater say in Brexit than initially considered. And on that thought, would the ultimate power to accept or reject whatever deal (or lack of deal) the Brexit team ultimately brings back to Parliament not be to hold another election, this time with facts (and not alternative facts) on the table.

Strike 3?

For business, matters in Ireland are far more certain. For my thoughts on that, see – Brexit: the Irish have a certain view


Author

Andreas McConnell

PARTNER


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