Seoul Trader

Faisal Islam, Political Editor at Sky News, today reported that the Trade Secretary Liam Fox is visiting Korea, a key trade partner of the UK.

I noticed that Islam tweeted what has long been suspected regarding the possible rollover of the EU-Korea FTA, namely that “the EU has not and will not write key letter to Seoul and the other dozens of trade partners asking them to treat UK as a continuing EU member in transition for purposes of trade until Withdrawal Deal done. Limbo.”

A little background: the EU has an FTA in force with Korea. As a matter of law, that will cease to apply to the UK when it leaves the EU on 29 March 2019. Earlier in the year the EU agreed to write a letter to Korea, and its other FTA partners, requesting that the UK is treated as a continuing member of the EU during the transition period into which the UK will move, assuming that a Withdrawal Agreement can be finalised before 29 March 2019 (which despite recent blips I think is still probable, if not certain). If they all say yes, this prevents the scenario under which the UK is effectively treated as a member of the EU by the EU and itself until 1 January 2021, but it falls out of the FTAs, third countries not being bound by the Withdrawal Agreement.

Faisal Islam

A Withdrawal Agreement is unlikely to be finalised until next month at the earliest. At that point, the EU will ask Korea whether the FTA can still apply to the UK. Korea may say yes, it may say no, or it may say yes subject to conditions/concessions. It may not assent, if it assents at all, before 29 March 2019.

Many UK businesses consider that if the UK enters into transition, nothing will change until 1 January 2021. That may largely be true, although no business should assume that the UK will enter into a transition period and avoid a cliff-edge Brexit next year, and businesses should have advanced “no deal” plans by now. But the EU-third country FTA issue could be a problem for some businesses even if the UK goes into transition.

Any UK business that trades with Korea, or any other country with which the EU has an FTA, needs to consider what might happen if that FTA ceases to apply in March 2019. So does any business in a country like Korea that has an FTA with the EU that trades with the UK.

Undoubtedly Dr Fox will have raised this point with his counterpart in Seoul. But Islam is correct that businesses are in limbo on this point as much as they are on whether the UK will get a “deal” with the EU. Businesses need to ensure it is on their Brexit checklists.

Brexit Clock

The clock is ticking! With only seven months left until the leaves the EU on 29 March 2019.  With the European Council Summit on 18 October 2018 eagerly anticipated by all parties there is some expectation, that until that date it will not be resolved whether the UK and EU are able to agree on a Withdrawal Agreement, which would form the basis of the Transition Period from 30 March 2019 to 31 December 2020.

An open issue remains on whether or not any agreed final draft Withdrawal Agreement, will be submitted to the European Court of Justice (ECJ) for the usual legal opinion the ECJ renders under Article 218 (11) Treaty of European Union (TEU) in respect of international agreements the EU enters into.

There is an overwhelming view between legal experts that such Article 218 (11) TEU does not only apply to “normal” international agreements, but will also apply to the draft Withdrawal Agreement under Article 50 TEU. A recent survey and Report by Naurus outlines legal expert opinion.

It is common practice that the relevant institutions of the EU obtain legal opinions from the ECJ in relation to important contemplated international agreements the EU is about to enter into.

The ECJ court practice shows that the time obtaining such opinions can range from 5 ½ months – in case of the fundamentally important ECJ Opinions 1/91 and 1/92 on the European Economic Area Agreement with Norway and others, which Agreement would be the basis of any “Norway Solution” if so agreed – to 22 months in case of the most recent ECJ Opinion 2/15 in respect of the sophisticated Free Trade Agreement with Singapore.

Given the length of time it takes to seek Opinions from the ECJ, time really is of the Essence for the draft Withdrawal Agreement.

On 18 July 2018, the German Department of State distributed to associations in Germany, a first ministerial draft of a German Federal Brexit Implementation Act, Brexit-Übergangsgesetz (BrexitÜG), for consultation by 8 August 2018.

Germany

The draft Act provides that the UK shall, during the proposed transition period from 30 March 2019 to 31 December 2020, be deemed to be a member state of the EU for all purposes of German Federal Law. However, the BrexitÜG only deals with the Brexit transition on German Federal law level – it does not address the Brexit transition on the level of the state laws of the 16 German states. State-level Brexit transition provisions will need to be adopted by the individual state parliaments.

The BrexitÜG provides for the “grandfathering” of applications by British nationals for German citizenship beyond the end of the transition period, in cases where the application was submitted before the end of the transition period and met all relevant requirements. The purpose of that grandfathering is that British nationals shall not be denied dual citizenship just because of administrative delays. Normally, German law would not allow dual citizenship unless the other citizenship is that from another member state of the EU.

However, the draft BrexitÜG only caters for the “Deal Scenario” and not the “No Deal Scenario”, with the preparatory papers and explanations relating to the draft Act not addressing a situation of “No Deal”, and no subsequent transition period being agreed between the UK and the EU. It remains to be seen if a “No Deal Scenario” will be added to the current draft of the BrexitÜG, or whether this will be postponed until the beginning of 2019.

law level

The grandfathering provisions in favour of British nationals applying for German citizenship do not apply in favour of German nationals applying for  British citizenship. German citizens only granted British citizenship after the end of the transition period would then cease to be German nationals, due to the German law that does not allow dual citizenship other than where that citizenship is from another member state of the EU.

 

Brexit Tearing of FlagsOn 19 July 2018 the EU Commission published a paper on “Preparing for the withdrawal of the UK from the EU on 30 March 2019”.

The paper deals both with a “Deal Scenario” where the EU27 and the UK enter into a binding Withdrawal Agreement prior to 29 March 2019 and also with a “No Deal Scenario” setting out the consequences of no Withdrawal Agreement being entered into.

The Preparedness Paper in particular lists and summarizes the 68 sector and industry specific Notices to Stakeholders which the EU Commission has issued during recent months.

The main consequences of a “No Deal Scenario” would include:

  • The UK (including the relevant Overseas Countries and Territories) will be a third country and EU law ceases to apply to and in the UK as of the end of 29 March 2019 without any implementation or transition period.
  • There would be no specific arrangements in place for EU citizens in the UK, or for UK citizens in the EU (apart of those EU Rules which apply to any third country nationals like Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents)
  • The EU will apply its regulation and tariffs at borders with the UK as a third country, including checks and controls for customs, sanitary and phytosanitary standards and verification of compliance with EU norms.
  • UK entities will cease to be eligible as EU entities for the purpose of receiving EU grants and participating in EU procurement procedures.

In case of a “Deal Scenario” the EU27 and the UK will enter into a Withdrawal Agreement, which provides for a Transition Period to apply from 30 March 2019 to 31 December 2020.

Durham UniversityOne of the most controversial issues during the passage of the European Union (Withdrawal) Act 2018 (‘EUWA’) was the so-called ‘meaningful vote’, which parliamentarians hoped would give the Commons a real say over any ‘deal’ reached by the Government with the EU (see previously on this blog posts by Alison Young and Jack Simson Caird). The provisions governing the vote are now set out exhaustively in s 13 EUWA (below).

This issue is now coming sharply into focus amongst parliamentarians and commentators as negotiations with the EU enter their final stages and attention starts to turn to the question of when and how the meaningful vote will take place. A post by Jack Simson Caird just this week considered some of the procedural issues surrounding the process of approval. This blog addresses the issue, recently alluded to by the Government, of possible legal challenges that might arise should the outcome of the approval process under section 13(1) be disputed.

The meaningful vote

The final terms of the relevant provision, s 13(1)(b) EUWA, mandate that ‘the negotiated withdrawal agreement and the framework for the future relationship’ that is agreed by the Government must be

approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown

This approval is required before any such agreement can be ratified by the Government. The whole of s 13(1) must be satisfied before ratification can take place:

13 Parliamentary approval of the outcome of negotiations with the EU

(1) The withdrawal agreement may be ratified only if—

(a) a Minister of the Crown has laid before each House of Parliament—

(i) a statement that political agreement has been reached,

(ii) a copy of the negotiated withdrawal agreement, and

(iii) a copy of the framework for the future relationship,

(b) the negotiated withdrawal agreement and the framework for the future relationship have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown,

….

(d) an Act of Parliament has been passed which contains provision for the implementation of the withdrawal agreement

The Framework for the Future Relationship (‘FFR’) is distinct from the Withdrawal Agreement (the FFR is sometimes also referred to as the ‘Political Declaration’), albeit that there will likely be some cross-referencing between them. The Withdrawal Agreement concerns the ‘divorce deal’ covering, most importantly, citizens’ rights, the ‘divorce bill’, and the issue of the Northern Ireland border. The FFR is specified in Article 50(2) of the Treaty on the European Union and concerns the long-term relationship the UK will have with the EU following withdrawal. To take legal form it will need to be turned into a treaty, which will have to be ratified by both the UK and the EU at a later point. Assuming there is a transition period, the treaty will only become applicable at the end of that period.

The procedure to approve the Withdrawal Agreement and FFR

In a letter to the Procedure Committee dated 10 October 2018, Dominic Raab, the Brexit Secretary, speaking of the motion in s 13(1), said:

the procedure through which [the motion] is voted upon must allow for an unequivocal decision…Anything other than a straightforward approval of the deal will bring with it huge uncertainty for business, consumers and citizens.

The Government sets out its reasons for this view in a memorandum published on 10 October alongside the above letter. The memorandum raises concerns about the possibility of litigation; this may partly arise from the aftershocks of the well-known case brought by Gina Miller, which resulted in the Supreme Court finding that the Government could not lawfully use the royal prerogative to ‘trigger’ the Article 50 process. Instead, specific legislative authorisation was required.

In this instance, if there was reason to believe that the Withdrawal Agreement and Framework had not been properly approved by the Commons under s 13(1)(b) EUWA, then a court could be asked to issue a declaration that the Government could not lawfully ratify the Withdrawal Agreement. This would be because the s 13(1) conditions required to render such ratification lawful had not been satisfied. Alternatively, it is possible that a challenge could be brought post-ratification but before exit day, asking the court to declare that ratification had been unlawful, or even, conceivably, seeking a quashing order.

The key point is that, regardless of the eventual success or otherwise of such litigation, the existence of live proceedings might impede or delay the process of ratification. In this respect, it must be stressed that if the Withdrawal Agreement is not ratified by 29th March 2019, the treaties cease to apply to the UK at 11pm GMT that day and, with no Withdrawal Agreement in place, the UK would leave the EU in any event. Moreover, in such circumstances, any transition period specified by the Agreement would not be implemented. Hence in relation to all our scenarios below, whether a case was considered to be sufficiently arguable to be given permission to proceed might be almost as important as whether it was ultimately successful.

It was reported last week that Dominic Raab believes the latest point at which the Government would have to commit to preparing for a ‘no deal’ exit is November. The following scenario therefore arises: the Government could reach an Agreement with the EU in November, and a form of approval process then takes place in Parliament, which the Government believed satisfied s 13. The Government would then plan for exit – presumably to the transition period – on that basis. If it was then faced with a legal challenge that prevented or delayed ratification, on the basis that s 13 had not been properly followed, its planning for Brexit would be seriously disrupted.

‘Questioning proceedings’ in the House of Commons

The Government’s memorandum explicitly highlights ‘litigation risks’ following from anything other than unequivocal approval under s 13(1). It states that these could include the risk of:

the courts encroaching on the privileges of Parliament by questioning proceedings in the House

This statement however fails to have regard to one of the most important provisions of UK constitutional law. Article IX of the Bill of Rights 1689, in terms, prohibits the courts from questioning such proceedings:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

Detailed consideration of the role that Article IX might play in any possible legal challenge would require another blog – particularly as many consider there is a broader principle of Parliament’s exclusive cognisance over its own proceedings. For present purposes we note merely that some of the scenarios below raise a greater possibility of Article IX coming into play than others.

There is also the possibility that, even if a court were to find that Article IX does not strictly apply to a particular situation, it could consider a dispute as to whether the Commons had approved the Government’s policy to be predominantly a political question, on which it was inappropriate for the court to intervene. Given the intense political controversy surrounding Brexit, the courts would be most reluctant to get involved in any such dispute; however, in some of the scenarios considered below it could be unavoidable.

How could litigation happen?

The power to ratify treaties vests in the Crown under the royal prerogative. Any Withdrawal Agreement with the EU would have to take the form of a treaty. Miller confirmed previous case law such as Laker Airways and Fire Brigades Union, which stated that the prerogative cannot be exercised in a way that frustrates the intention of Parliament. This follows from one of the most basic aspects of parliamentary sovereignty – that statute ranks higher than other sources of law, including the prerogative. Hence the prerogative may not be used to do something that contradicts what statute has laid down. As the majority in Miller stated:

ministers cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation. [51]

It follows therefore that the Government cannot exercise the prerogative to ratify any treaty agreed with the EU where to do so would not just frustrate, but flatly defy the will of parliament in s 13(1)(b) that such ratification may not occur unless there has been ‘approval’ of the requisite statutory motion by the House of Commons.

What does ‘approved’ mean?

Many might think that there is no need to be concerned about this issue because, even if the relevant motion is amended by MPs, any amended motion approved would still satisfy the requirements of the Act. Alternatively, it might be thought, contra the Government’s memorandum, that Article IX would simply block any possible legal challenge in this area. As we argue below, this is not necessarily the case.

The Government’s Memorandum hints at a number of ways in which a court might consider the Withdrawal Agreement not to have been ‘approved’ (for more detailed analysis see The Brexit Endgame paper esp. pp. 12-14). In what follows, we suggest six scenarios in which litigation could conceivably be brought against the Government on this matter. In each case we assess the risk of successful litigation, ranked from highest to lowest. We define “successful” as “an arguable case with a realistic prospect of success”.

Scenario 1 – The resolution is voted down

We start with the most straightforward scenario, in which the s 13(1) EUWA motion is simply voted down in the Commons. In such circumstances, s 13(1)(b) has plainly not been satisfied. Any attempt to ratify the Withdrawal Agreement would therefore be specifically barred by statute (unless alternative legislative provision were made to enable ratification notwithstanding s 13 EUWA). It might be suggested that a decision to ratify a treaty is traditionally taken to be one of the areas excluded from traditional review under GCHQ. However, as with Miller, the challenge would be directed not at the rationality of the decision to ratify, but the legal power to do so.

Hearing the case would require a court to establish that the requisite s 13 motion had not been approved by the Commons. However, this conclusion would appear on the face of the record in the House of Commons Votes and Proceedings and its Journal, as well as in Hansard, and a court would simply take note of what had happened in Parliament. There would be no suggestion of ‘questioning’ or ‘impeaching’ proceedings in parliament contrary to Article IX.

An analogy could be drawn with a challenge to delegated legislation. Powers to make statutory instruments, for example, almost invariably lay down that Parliament shall approve the SI, by either the positive or negative approval procedure. If Parliament negatived an SI or failed to approve it (where the statute required positive approval), the courts would find it to be, for that reason, invalid. It is true that courts in that situation are considering the vires of (delegated) legislation, which is not the case in our scenario. However, the essence of the judicial task would be the same in both cases: determining whether a statutory condition mandating a particular procedure in Parliament has clearly been satisfied.

Hence in this situation, the proposition that such litigation would entail a breach of Article IX of the Bill of Rights would seem likely to fail.

It is worth noting, however, that the legislation does not state that the Government must secure such a resolution on its first attempt. Hence, there is nothing in the statute to stop the Government, following the rejection of a s 13(1) motion, from engaging in a period of intensive lobbying of MPs and then trying again. The remainder of s 13 does not appear to preclude such a course of action, although there would be difficulties in terms of parliament’s internal rules (see further The Brexit Endgame, p. 13).

Litigation risk: Extremely high

Scenario 2 – An amendment to a point of substance in the Withdrawal Agreement

If the motion proposed by the minister is amended to alter, contradict or require removal of a substantive part of the agreement between the Government and the EU, it is difficult to see how the Withdrawal Agreement could be said to have been ‘approved’. Thus if, for example, an amendment was carried approving the Agreement, subject to a condition that the maximum payment by the Government to the EU under the Agreement be limited to £20bn rather than the agreed higher figure (of say £39bn), then even if the amended motion were approved, it could not then be stated unequivocally that the Withdrawal Agreement had been ‘approved’ by the House of Commons. Putting the matter at its lowest, there would be a strongly arguable case that it had not been approved.

Litigation risk: Very high

Scenario 3 – Procedural hurdle to approval of Withdrawal Agreement inserted

In this scenario, rather than an amendment imposing a substantive restriction on the Withdrawal Agreement, a procedural hurdle is imposed: for example, an amendment might be passed, stating that the Withdrawal Agreement must also be approved by a referendum, or by some further vote in the House following a Report by a specified Select Committee. In such circumstances it could be claimed that the Agreement had not been clearly ‘approved’. This is because the need to satisfy a further conditional requirement would seriously undermine any claim that the Commons had clearly approved the Agreement via the requisite s 13 motion.

On the other hand, it could be argued that section 13 lays down as a matter of law the necessary and sufficient conditions for the approval of the Withdrawal Agreement and FFR. Were an amendment to be passed specifying a further procedural condition, such as a referendum, this would not have the force of law. Hence a court might treat it as expressing a mere political aspiration, which did not undermine the approval given under section 13 in legal terms. (We are indebted to Paul Craig for this point).

Litigation risk: High

Scenario 4 – An amendment ‘calls on’ the Government to ‘seek changes’ to the Withdrawal Agreement

In this scenario, an amendment is passed that approves the Withdrawal Agreement but also ‘calls on the Government’ to use its ‘best efforts’ to (for example) negotiate an alternative ‘backstop’ to the Northern Ireland border issue, ‘relying on innovative technology’. The legal implications of this scenario would be much less clear. Much might depend on the precise wording of the amendment and which issue it addressed. In approving the motion and only ‘calling on’ the Government to use ‘best efforts’ to change it, the House of Commons could be said to have reluctantly approved the Agreement. This approval, notwithstanding the expression of a wish that it be changed, might be seen to have satisfied the requirements of s 13.

On the other hand, the very fact that Parliament was calling on the Government to seek a change to part of the Agreement could be argued to show lack of approval for it as it stood. In this scenario, however, a court would probably be reluctant to entertain any challenge that required it to ‘construe’ the meaning of the Commons resolution approving the motion and elucidate Parliament’s intention from it, lest this be seen as ‘questioning proceedings in Parliament,’ contrary to Article IX. This is not least because courts generally have no role in construing anything Parliament does, other than legislation.

Litigation risk: Moderate

Scenario 5 – Procedural hurdle inserted re approval of Treaty implementing the Future Framework

In this scenario, an amendment is passed that imposes further procedural requirements, such as a referendum, before the eventual Treaty that will instantiate the ‘framework for the future relationship’ (‘FFR’) is brought forward for ratification. In our view such an amendment would not prevent s 13(1) being satisfied for two reasons.

First, section 13 only specifies that the FFR must be approved – it says nothing about the later Treaty that will implement that FFR. Second, the Treaty implementing the FFR will in any event be subject to the negative approval procedure under the procedures set out in the Constitutional Reform and Governance Act 2010, Part 2 and hence approval of the FFR under section 13 cannot in any event guarantee parliamentary acceptance of the Treaty implementing it.

Litigation risk: Moderate to Low

Scenario 6 – An amendment ‘calls on’ the Government to ‘seek’ an outcome when negotiating the treaty governing the future relationship.

We consider that this scenario raises much less risk than those above, but not zero risk. On the one hand, the Treaty in question will be a matter for negotiation anyway, so giving directions to the Government to seek a particular outcome during those negotiations would not seem problematic.

On the other hand, if the direction given plainly contradicted something in the FFR, it could be argued that the amendment thereby signalled disapproval of that document. Much here might depend on the wording of the amendment and how far it appeared to contradict a specific policy stated in the FFR. It is hard to assess this scenario further since at present we have little idea what the FFR will look like – whether it will be a detailed ‘Heads of Terms’ type document or a much vaguer statement of political aspirations.

Litigation risk: Low

Use of subsequent statute to remove the risk of litigation

As noted above, the Withdrawal Agreement will require primary legislation – the proposed EU Withdrawal Agreement Bill – to implement it.  Furthermore, that legislation must be passed before ratification takes place (s 13(1)(d)). If, as a result of the way the s 13 process had played out, there was some doubt as to whether ratification would be lawful, the simplest way for the Government to nullify that risk would be, as the Brexit Endgame paper argues, to deal with the matter in the Withdrawal Agreement Bill. For example, the Bill could include a provision stating:

notwithstanding the provisions of the EU Withdrawal Act, section 13, or any other enactment, it shall be lawful to ratify the Withdrawal Agreement.

Clearly, however, such a clause would be likely to rouse considerable opposition amongst both MPs and Peers and there could be no guarantee that Parliament would pass it into law.

The authors would like to thank Tom Poole, Paul Craig, Tom Hickman, Jack Simson Caird, Alison Young and Conor Gearty for their valuable comments on an earlier draft. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

Gavin Phillipson is Professor of Law at Durham University. He is also currently a Parliamentary Academic Fellow in the Parliament and Constitution Centre in the House of Commons Library. The views above represent his independent view, which should not be taken as representing the views of the Library.

(Suggested citation: R. Craig and G. Phillipson, ‘Could the ‘Meaningful Vote’ End up in Court?’, U.K. Const. L. Blog (24th Oct. 2018) (available at https://ukconstitutionallaw.org/))

Brexit secretaryBrexit has a knack for producing constitutional mountains out of procedural molehills. Last Wednesday, the House of Commons Procedure Committee published a letter from the Brexit Secretary Dominic Raab along with a Government Memorandum on the Government’s views on how the procedural arrangements for the meaningful vote in the Commons agreed in the EU (Withdrawal) Act 2018 should work.

In a nutshell, the Government wants to ensure that the Commons makes a decision on the Brexit deal motion before it makes any amendments to it. In other words, it wants the Commons to say ‘yes’ or ‘no’ before it can say ‘if’ or ‘but’. The Government’s main justification for this approach is to avoid the legal uncertainty that could be caused by the motion being changed and then agreed in a new amended form. In other words, it’s not about whether the motion can be amended but how it could be amended.

The Government says it wants to engage with the Commons and the Procedure Committee about the best way forward. So with that in mind, I want to attempt to break down some of the issues in play.

The problem

The basic problem is that the way section 13 of the EU (Withdrawal) Act 2018 is drafted means there is some wiggle room for how the Commons could approve the two elements of the Brexit deal: the Withdrawal Agreement and the Political Declaration. Section 13 says that both must be “approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown”.

However, the legislation does not specify the precise form of words that the Commons must agree. The Commons rules on procedure—the Standing Orders—explain that substantive motions can be amended. Neutral motions (that say that the Commons “takes note” of something) cannot be amended. The Government has always been clear that the meaningful vote motion will be a substantive motion. If the Government’s motion on the deal can be amended, then this raises a conundrum: if the Government’s motion is amended, would the amended motion count as approval under the terms of section 13? This question is very difficult to answer in the abstract without sight of the text of the motion and any amendments (we explore what might count as approval in our report the Brexit Endgame).

Raab’s letter and the Government’s memorandum suggest that an amended motion would risk the question ending up in the courts. This would, they say, create legal uncertainty and risk drawing the courts into the territory of Parliament’s internal proceedings. To an extent this risk is an unavoidable consequence of using legislation to create rules for how the Commons should approve the deal. Parliament can also rely on the protection provided by the constitutional principle of parliamentary privilege, which means that the courts cannot question parliamentary proceedings. Nevertheless, the Government argues that the risk of legal uncertainty should be mitigated by adopting specific procedural arrangements for the meaningful vote in the Commons.

The procedural solution

The memorandum outlines what appears to be the Government’s favoured approach to the procedure for the vote. Under this procedure, the Government’s motion on the agreements would be amendable. However, crucially, for any amendment to be passed, the Commons would first have to decide to reject the Government’s motion on the Brexit deal. If the Commons decided to agree the Government’s motion, then no further amendments would be voted on. The legal requirement of section 13 would have been met and the Brexit deal would be approved ‘clean’ by the Commons.

The Government justifies this approach by arguing that the motion would still be amendable. The main difference, however, when compared to other procedures is that it changes the order in which the Commons takes it decisions. The Government has consistently argued that the meaningful vote is a binary choice for MPs. This is fundamental to the Government’s case for using a procedure that guarantees a Commons vote on a “clean” motion.

If the Government’s preferred approach was not accepted then the Commons could adopt a procedure which enables a decision to amend the motion on the deal to be taken before deciding whether to accept the amended version. The Government is concerned that this would mean the Commons would not be able to take a straight ‘yes/no’ decision on whether to accept the Brexit deal.

Weighing the risks and the benefits

The Government is right that there is some legal uncertainty over what might happen if the Commons amended the motion to approve the Brexit deal.

The question for the Commons to decide is whether the risk of legal uncertainty outweighs the benefits of having being able to shape the approval motion before the ultimate decision on approval is taken. If they’re most concerned about uncertainty, this justifies using the Government’s suggested procedure which means that the Commons must reject the Government’s motion before being able to pass any alternative amendments. If the Commons does agree to the Government’s approach, it would lose the ability to shape the substance of the approval motion before making the decision on whether to accept the Government’s deal. However, under the Government’s preferred approach the Commons would still be able to decide to reject the Government’s approval motion and then pass a different form of approval motion. MPs that want to amend the Government’s motion will have to be willing to take on the risk of rejecting it without knowing whether there is a majority for any proposed amendments.

Despite the Government’s stated concerns over whether the amended vote could end up in the courts, the reality is that parliamentary privilege means that the courts would be unlikely to interfere. If the Commons did pass an amended approval motion, it could use the EU (Withdrawal Agreement) Bill to remove any legal doubt. The EU (Withdrawal Agreement) Bill could either remove the requirement in section 13 or declare that the requirement has been met. The truth is that the Government is more likely to be motivated by the simple desire of simplifying the vote, so that it only has to worry about achieving a majority for a single vote, rather than the alternative of having to face multiple divisions before the final decision on the Government’s motion.

Dr Jack Simson Caird, Senior Research Fellow in Parliaments and the Rule of Law, Bingham Centre for the Rule of Law

(Suggested citation: J. Simson Caird, ‘Brexit and the Meaninful Vote: Down the Procedural Raab-it Hole?’, U.K. Const. L. Blog (22nd Oct. 2018) (available at https://ukconstitutionallaw.org/))

Weekly round-up of events

This week’s event announcements include:

  1. ‘The Legal Framework for UK Aid After Brexit’, Current Legal Problems lecture, UCL, 1 November 2018
  2. ‘”Things Done in the Dark and in the Middle of the Night”: Nehru, Kashmir, and the Subterfuges of Building Constitutional Democracy’, The Inaugural Arthur Berriedale Keith Lecture, Edinburgh, 5 November 2018

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Rt

UCL Current Legal Problems lecture

The Legal Framework for UK Aid After Brexit

6:00 pm to 7:00 pm

1 November 2018

UCL Laws, London WC1H 0EG
Speaker: Professor Ambreena Manji (School of Law and Politics, Cardiff University)
About the lecture: With the enactment of the International Development (Official Development Assistance Target) Act 2015, the United Kingdom has enshrined an aid target in law. It is now under a legal duty to spend 0.7% of Gross National Income (GNI) each year on aid. Since the decision to exit the European Union, questions are being asked about how aid might be spent in the ‘national interest’ to boost post-Brexit trade. The UK has a detailed legislative framework for international development aid. Professor Manji will argue that it is nonetheless inadequate in the current context and must be revised.

The Current Legal Problems (CLP) lecture series and annual volume was established over fifty five years ago at the Faculty of Laws, University College London and is recognised as a major reference point for legal scholarship.

For more information and to register for the event, click HERE.

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School of Law and Politics

The Inaugural Arthur Berriedale Keith Lecture
‘Things Done in the Dark and in the Middle of the Night’: Nehru, Kashmir, and the Subterfuges of Building Constitutional Democracy
Professor Sunil Khilnani
Avantha Chair and Director of the King’s India Institute
05 November 2018
17.00 to 18.30
The Playfair Library, Old College, Edinburgh EH8 9YL

Abstract: This lecture examines Jawaharlal Nehru’s attitude to democratic and constitutional norms at a moment of crisis, in the years after independence and partition. It considers Nehru’s judgements and actions as he tried to balance Hindu communal mobilization, Muslim minority fears, and Kashmir’s ambitions for regional autonomy, all within the still unformed institutions of the Indian union. I argue for a more complex understanding of Nehru, the geopolitics of his era, and the political options and choices confronting him and his country. The chapter points to some of the tensions between nationalism (even of the secular, plural Nehruvian variety) and democracy in the founding era, and between democracy and constitutionalism in its Indian ‘asymmetric’ forms.

This event is free, open to all but registration is required HERE.

For more information, see HERE.

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