The Liberal Democrats have tabled an amendment to the European Union (Notification of Withdrawal) Bill. This legislation was introduced by the government in response to the adverse judgment in Miller v Secretary of State for Exiting the European Union, in which the Supreme Court concluded that Parliamentary authorisation was required before the Prime Minister could, in the terms of Article 50 (2) TEU "notify the European Council of its intention" to withdraw from the EU.
The proposed amendment would require the United Kingdom and Gibraltar to hold a referendum on the "exit package proposed by HM Government at conclusion of the negotiations triggered by Article 50(2)". The choices in that referendum are to "support the Government's proposed new arrangement" or that the United Kingdom should "remain a member of the European Union".
Here's our amendment demanding the British people have the final say on the Brexit deal through a referendum pic.twitter.com/QPSV5OnHrM— Lib Dem Press Office (@LibDemPress) January 31, 2017
There are two problems with this amendment.
Problem One - A withdrawal agreement is optional
Firstly, there might not be an "exit package". Article 50 notifications trigger a 2-year negotiation period that can only be extended by the unanimous agreement of the 28 Member States. Article 50(3) is very clear about this. The Prime Minister has already contemplated the conditions in which she might reject a deal that is proposed by at least a qualified majority of the remaining Member States. In those circumstances, it is not even clear that the British people would, under this proposed amendment, get the opportunity to participate in a referendum: there is no "exit package" proposed by the government in those circumstances, and our obligations under EU law would extinguish regardless.
Problem Two - Article 50 is not unilaterally reversible
The second problem is that, even if the UK Government does arrive at an "exit package" with the other Member States, it is not in the UK Government's gift to offer the British people a second chance to stay in the European Union. If the deal is rejected at the ballot box, the default legal position is that the United Kingdom leaves the EU without an exit deal. It's not just that Theresa May could ignore the result of an "advisory" referendum in either direction; it's that it's no longer in her gift to give effect to one of the results.
The orthodox view of Article 50 is that a notification, once made, cannot unilaterally be revoked. The UK could not "cancel Brexit" on its own simply because a referendum saw the British people change their mind. This point of law was common ground in Miller [see para 26]. A legal challenge in the Irish Courts has been brought by Jo Maugham QC to try to establish this point, but it is unlikely to reach the Court of Justice of the European Union on a reference and even if it does it is likely to lose. For one thing, their case appears to have relied on arguing that the UK has already notified the EU for the purposes of Article 50, something which clearly cannot be the case now that the Supreme Court has said notification without Parliamentary authorisation would be unlawful (and therefore not, per Article 50(1) "in accordance with [our] constitutional requirements").
In order for the UK to stay in the EU following a second referendum, therefore, the other Member States would have to do one of two things. Either they could agree unanimously indefinitely to extend the deadline of the Article 50 process, and to normalise the cancellation of the Article 50 process by way of an amendment to the Treaties under Article 48 TEU (which would itself require the full ratification process through all 28 Member States). Or alternatively, they would have to try to negotiate a second "withdrawal agreement" that was in fact completely the opposite. Although such an agreement would only require a qualified majority to pass, it may be considered a violation of the Treaties to use Article 50 for the opposite of its intended purpose. Such a "not really a withdrawal agreement agreement" would also still have to be ratified in accordance with the constitutional requirements of every single other Member State.
There is also a fundamental democratic point here. If you do not like Theresa May's deal, you might not like it for one of two pretty diametrically opposed reasons. How should you vote in this proposed referendum if you want a WTO Brexit? The blunt answer is you do not know until or unless what the consequences of rejecting the deal will in fact be are clarified. May's deal might be preferable to you if the consequences of rejecting it are that we do not leave at all. The same is true for a Remainer. If you would prefer May's Brexit deal to a Hard Brexit, it is not reasonable to expect you to vote against that deal on the wing and a prayer that the exit process can be and will be reversed.
So even if the Lib Dem amendment is well intentioned, and there is likely to be fundamental political opposition to it, it fails to protect the right of the British people to choose what actually appears on their ballot papers.
So what should they be doing to get their desired ends, assuming it is democratically defensible and feasible to get through Parliament?
1. The Lib Dems and like-minded allies should be seeking to restrict the types of withdrawal agreement that HM Government are permitted to agree to. Their amendment should contain a prohibition against the Prime Minister or any other government representative consenting to an agreement that fails to include a provision that either allows or requires the UK not to leave the European Union if the exit deal is rejected in a referendum. This would allow an agreement to be ratified, contingent upon the outcome of that referendum. WTO Brexiteers and Remainers would therefore know exactly what they were voting for.
This is not an unprecedented approach to how the UK regulates its relationship with the European Union. Indeed this is exactly the kind of limitation imposed by provisions in the European Union Act 2011, which the Coalition Government passed. It imposes restrictions on Ministers variously, "giving a notification", "voting in favour of or otherwise supporting", or "confirming the approval of" certain decisions or processes giving rise to the exercise or transfer of Treaty powers on behalf of the United Kingdom. There are generally two mechanisms by which the Act allows these powers to be exercised: approval in a referendum or approval by Parliament.
2. Their amendment should impose a duty on the government to hold a second, In/Out referendum at least three months before the expiry of the Article 50 2-year window in the event that a withdrawal agreement has not yet been reached. Although such a referendum could not be legally binding without the Council's agreement, this would at least carry a great deal of political weight. Such a requirement would also disincentivise both the EU from being extremely harsh in its negotiating position, and disincentivise the Prime Minister from walking away from a withdrawal agreement on favourable terms, simply because it contained a second referendum requirement.
Brexit is going to happen, and as it stands, it's going to be a pretty brutal one. It is going to hand a lot of power back to the UK Government, rather than Parliament. The Miller case gave Parliament a small window in which to assert itself and to constrain the ability of the Prime Minister to act on our behalf. Whether the intention is still, a little delusionally, to stop Brexit, or even if it is well placed, to try to mitigate the damage, the requirement of a second referendum could change the dynamics of the negotiations considerably. But it requires Parliament to be smart: to strengthen Britain's negotiating position by weakening the Prime Minister's. In its current form, the Liberal Democrats' amendment fails to do that.