Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
The Lords will this week vote on a new batch of amendments to the Article 50 Bill to add to the provision on EU citizens they have already added (something that was both unnecessary and unworkable). This time the vote is on amendments to give, what its supporters have billed, a “meaningful vote” to Parliament on the outcome of the forthcoming negotiations. Sound innocuous? No. Far from being an innocent piece of proceduralism, this is a key element of an increasingly doomed rear guard action by those still fighting to overturn the referendum.
The weapon of choice is lawfare. The chosen fora are the Lords, the Supreme Court, the European Court of Justice and now even the Irish Courts. The aim is to give the Lords a veto on Brexit. The combatants are motivated, fanatically pro-EU, lawyers with a capacity for self-delusion – they still believe they can keep the UK in the EU. The key article of faith is that given enough delay and obfuscation something will come along to rescue their EU dream.
Far-fetched? This is their plan.
If you cannot imagine life outside of the EU, the imminent notification under Article 50 must feel like a death sentence. On notification the EU dream dies. It is irreversible. In the Supreme Court legal action brought by Brexit’s opponents both sides agreed that once notification is given to the EU there is no going back. After the maximum two year period, we will have left the EU. That should be fatal to any campaign to stay in the EU. Hence the proposed Lords amendments‘ primary aim is to make the Article 50 process sound reversible. Here is a key part of one of them:
“(4) The prior approval of both Houses of Parliament shall also be required in relation to any decision by the Prime Minister that the United Kingdom shall leave the European Union without an agreement as to the applicable terms.”
In addition to seeking the right to veto any deal, it appears they also wish to have the right to veto leaving without a deal, in other words a full Lords veto on Brexit. Obviously this is nonsense, for if the Lords vote not to leave the EU, the UK will still leave. It is clear in Article 50 that it is irreversible – we leave, deal or no deal.
If the first plank of the strategy was the Supreme Court case to get a vote on Article 50 and the second plank is to give the Lords a veto on leaving, the third plank is to deal with the problematic ‘irreversibility’ fact. For this they have taken their case to Ireland.
The faintly ludicrous idea, being pushed by Jolyon Maugham is to engineer a reference from the Irish Courts to the European Court of Justice to say that Article 50 is reversible in EU law, putting teeth into the putative Lords Brexit veto. Maugham appears to have threatened to issue proceedings and raised £70,000 but has since gone quiet, awaiting his star litigants and most likely the outcome of the Lords amendment.
A further potential plank is, fortunately, riddled with woodworm. Lord Hope, a former Deputy President of the Supreme Court no less, suggested on Second Reading that any deal (or lack thereof) would also require another full Act of Parliament, thus opening the way to a new legal delay and Lords vetoes. Fortunately, despite his legal knowledge, he seems to have been confused, perhaps conflating the Great Repeal Bill with Article 50. There is no further requirement for an Act and any attempt by the courts to so direct Parliament would lead to a breach of Article IX of the Bill of Rights 1688.
So that is the plan. Give the Lords a veto over the British people’s Brexit vote, gain an EU opinion that the UK, once blocked by the Lords, can withdraw its intention, and re-join. Play for time, pray for EU obstinacy, pray for recession, an election or another referendum and thus stay in the EU. Fanciful stuff, but it needs calling out for what it is.
The amendment has a myriad of serious problems. Its highly damaging to the national interest. By seeking to reopen UK membership, it would give a perverse incentive to every EU27 actor to give the UK a bad deal. Why agree a mutually beneficial trade agreement if by refusing to do so you might boost the Remain II camp and hopefully retain some UK budget contributions?
Secondly, if they are successful and the Lords do veto an exit deal and supposedly send the Prime Minister back to renegotiate, how will she know what to ask for? It is perfectly possible that both Lords Tebbit and Kinnock might vote against an exit deal, one because it had too much ‘Europe’ and the other not enough. What then? This would create uncertainty and be highly damaging to the UK’s national interest.
These amendments do not respect the voter’s choice and would guarantee the worst Brexit outcome. It is therefore highly surprising that Amendment 17 is down in the name of Baroness Hayter, the official Labour Brexit spokeswoman in the Lords.
Why is this? Has Labour gone back on its pledge to respect Brexit? Has Jeremy Corbyn lost control of his legion of noble quangocrats? Maybe it’s an innocent mistake? Perhaps she has not read and fully understood what she has put her name to? Who knows? Still, no need to worry – the Commons voted overwhelmingly for Brexit, they will knock this and all other amendments back and so bring this rearguard action by Remain’s lawyers to an end. Soon Brexit will be irreversible.