The Notification of Withdrawal Bill needs to be amended to have 2 checkpoints

Either don’t trigger A50 at all or at least build in a mechanism to stop the withdrawal if the exit deal not in the UK’s best interests.

If the UK enters negotiations with the EU without the ability to stop the process the EU negotiators will hold all the negotiating power.  All 27 remaining countries will have a veto and the UK will have none.

If we “just do it” and trigger Article 50 notification of the UK’s intent to leave the EU as the John Redwoods et al encourage us then we effectively trigger a Hard Brexit. As soon as the UK notify the EU of our intent to leave the EU under Article 50 (2) we effectively hand over all negotiating power to the EU. They could, in theory, just let the 2-year clock run down and the UK would cease to be a member of the EU and no longer a party to the EU treaties.

It is generally accepted that if the UK had a method of stopping the EU exit process (triggered by notification under Article 50) it would strengthen the UK’s negotiating position however the wording of Article 50 is silent on the possibility for the UK to withdraw it’s notification to leave the EU once given.

The Government have chosen to believe that this means the UK cannot withdraw notification once given. However as the recent Gina Miller case showed, this Government’s grasp of the UK law is based more upon how they would wish the law to be rather than what it actually is. There is a test case about to go through the Irish Courts to establish if Article 50 notification can be revoked once given.

I believe that eventually, the ECJ will confirm that the UK can revoke Article 50 provided it can show that it is part of our constitutional arrangements. Indeed the House of Lords Select Committee on the Constitution in— The Invoking of Article 50 12th. Sept 2016 states that the “UK will particularly strengthen the legal position if they enact primary legislation to define how they will operate the Article 50 process and the UK will have a strong case to argue that any mechanisms enshrined with an Act of Parliament form our “constitutional requirements””.

And we now have Primary Legislation before the House – the Notification of Withdrawal Bill.

To make sense of this process the Notification of Withdrawal Bill needs to be amended to have two checkpoints:

Checkpoint 1 – during debate/committee stages of Notification of Withdrawal Bill

As part of the debate the Government should issue details of the proposed exit plan. The most obvious method of doing this would be to issue a White Paper.

If there is no sensible deal possible then the process should end here and an expensive negotiations exercise is avoided.

It is there is the possibility of a sensible deal then Article 50 will be triggered and the negotiations will take place.

Checkpoint 2 – At the end of the negotiations

The Bill should specify that there will be a democratic decision taken whether to ratify the Exit deal or not. This might take the form of a Parliamentary vote, a further ratification referendum or in a General Election with the candidates in each constituency either supporting or opposing the deal on offer.

The UK may decide to continue with the exit terms negotiated and leave the EU.

Should the democratic decision of the UK be that the deal on offer is not in the UK’s best interests then the UK would be able to withdraw it’s notification and stop the withdrawal process.

Ratification by the UK

By providing for a democratic ratification process for the UK at the end of the negotiation process the UK will have the ability to stop and indeed step away from the withdrawal process should it be necessary.

As Sir David Edward told the House of Lords in May 2015** “It is absolutely clear that you cannot be forced to go through with it if you do not want to: for example, if there is a change of Government.” and the UK would remain in the EU.

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References

*Richard Tunnicliffe discusses this in his blog site in an article Negotiation Brexit — Shades of Article 50 @howshouldwevote.

** The EU Committee of the House of Lords considered this question in its report on “the process of withdrawing from the European Union” published on 4th May.

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