A supplement to our “Brexit Basics” posts

At the end of David Cameron’s final PMQs, Mr Kenneth Clarke (Rushcliffe) (Con) commented, pointedly:

“May I first join with all who have thanked the Prime Minister for the statesmanlike leadership that he has given to our party and to the country for the past six years? … may I ask that he will nevertheless still be an active participant in this House as it faces a large number of problems over the next few years? As no two people know what Brexit means at the moment, we need his advice and statesmanship as much as we ever have”. [HC Hansard 13 July 2016, Vol 613 Col 239]

Many will share Ken Clarke’s apparent puzzlement in the meaning of Brexit and the phrase “Brexit means Brexit“ – that circular definition, endlessly repeated by politicians and in the media, which in itself is quite meaningless. The OED defines the noun Brexit as:

“A term for the potential or hypothetical departure of the United Kingdom from the European Union,”

– although current usage encompasses the process involved in this departure, as well as the departure or destination itself. Se we thought it might be helpful to add some context to the use of Brexit, and some assistance was provided in the Urgent Questions debate on Monday, [HC Hansard 11 July 2016, Vol 613 Col 23]. The debate gives some indication of the Government’s approach, albeit before Mrs May was made Prime Minister. Further information is provided by the comments of David Davis MP (Haltemprice and Howden) on ConservativeHome, originally published on Monday 11 July but republished on 14 July following his appointment as Secretary of State for Brexit.

Readers wishing to read the extracts from the Parliamentary debate  and the article by David Davis on another occasion can skip directly to our Comments.

Parliamentary debate[emphasis added]

Col 23: Helen Goodman (Bishop Auckland) (Lab): (Urgent Question): To ask the Chancellor of the Duchy of Lancaster to make a statement on whether the Government will seek parliamentary approval before triggering article 50.

The Parliamentary Secretary, Cabinet Office (John Penrose): The question of how to invoke parliamentary discussion around triggering article 50 has two distinct facets, one legal and the other democratic. Taking the legal considerations first, I am sure that everyone will be aware of the debate about whether invoking article 50 can be done through the royal prerogative, which would not legally require parliamentary approval, or would require an Act of Parliament because it leads ultimately to repeal or amendment of the European Communities Act 1972. I will leave the lawyers to their doubtless very enjoyable and highly paid disputes. Apart from observing that there are court cases already planned or under way on this issue, so the judges may reach a different view, I simply remark that Government lawyers believe that it is a royal prerogative issue.

Nevertheless, I hope that everyone here will agree that democratic principles should outrank legal formalities. The Prime Minister has already said that Parliament will have a role, and it is clearly right that a decision as momentous as this one must be fully debated and discussed in Parliament. Clearly, the precise format and timing of those debates and discussions will need to be agreed through the usual channels. As everyone will understand, I cannot offer any more details today because those discussions have not yet happened. However, I will venture this modest prediction: I strongly doubt that they will be confined to a single debate or a single occasion. There will be many important issues about the timing and the substance of different facets of the negotiations that the Government, the Opposition, the Backbench Business Committee, and I dare say, perhaps even you, Mr Speaker, will feel it is important to discuss, but on the details of which topics, on what dates, and the specific wording of the motions, we shall have to wait and see.

Col 24: The Parliamentary Secretary, Cabinet Office (John Penrose): … First, I gently say to the hon. Member for Bishop Auckland (Helen Goodman) that it is difficult to argue that the Government’s approach is secret if it is in court. It is not a secret court; it will all be argued out in public. I have just said that the issues will be revealed as we go forward with the new Prime Minister. The point on which I hope I can reassure the hon. Lady is very straightforward: my right hon. Friend the Member for Maidenhead (Mrs May)—it looks like she is going to be the new Prime Minister—has been very clear in saying that Brexit means Brexit. What that means is that the destination to which we are travelling is not in doubt. The means used to get there will have to be explained, but I think it only fair to wait until she is Prime Minister and has a chance to lay out her programme, the process and, therefore, when Parliament will have a chance to discuss and debate the issues. At that point, I am sure that all will be revealed.

John Redwood (Wokingham) (Con): Does the Minister agree that the way to take back control and seek parliamentary approval is to proceed quickly to repeal the European Communities Act 1972 while transferring all European law relevant to the single market into British law and at the same time protecting our borders and keeping our contributions? That is what we voted for. Will the new Government deliver that promptly?

John Penrose: As I just said, the important thing—I hope this reassures my right hon. Friend—is that my right hon. Friend the Member for Maidenhead has been clear that Brexit means Brexit. That means that the destination, on which he and I both agree, is not in doubt. There are questions on how we get there, precisely how to run the negotiations and the precise timing of what gets addressed and when, and I hope that both he and I will allow our soon-to-be-installed new Prime Minister time to lay that out. I am sure that she will do so at the first opportunity.

Col 26: Dr Liam Fox (North Somerset) (Con): The Prime Minister originally said that he would trigger Article 50 immediately, so presumably he felt that he had the full legal authority to do so. Does my hon. Friend accept that those who want to have a vote before Article 50 is triggered are concerned not with parliamentary sovereignty but at making a clear attempt to thwart the democratic will of the British people? Does he agree that they must be completely resisted by any real democrat? The referendum was not a consultation with the British people; it was an instruction from the British people that we have a duty to obey.

John Penrose: I strongly agree with my right hon. Friend … that the question here is not about the legal power, which clearly, as the Prime Minister has previously mentioned, is available. The question is: what is politically and democratically right to reflect the decision that has been made in the referendum? Therefore, although the Prime Minister is, very sensibly, saying that the timing and method of triggering Article 50 needs to be a decision taken by his successor—we now know who that will be—his successor is also right to say very clearly that the British people have spoken and that Brexit means Brexit .

Pete Wishart (Perth and North Perthshire) (SNP): 
We are grateful to the Minister for confirming that this will be done through royal prerogative … However, I remind the Minister of the soon to be departed Prime Minister’s remarks that the Scottish Government will be fully consulted on any Brexit proposals. Can the Minister therefore confirm that, before any process is started on Article 50, the Scottish Government will be fully consulted and able to give their consent for any move forward? … This Government might be charged with taking the UK out of the EU, but those of us on the SNP Benches are charged with ensuring that the Scottish people always get what they voted for too.

John Penrose: 
I am delighted to confirm that the Scottish Government will be involved. In fact, I believe that some early discussions are already under way. I hope and expect that those will continue, as they will with the other devolved Governments. I would, however, gently remind the hon. Gentleman that this is a commitment to consult, which is not quite the same thing as seeking an outright consent. As his own party has accepted very recently, this is not a devolved issue and is to be dealt with by this Parliament and the UK as a whole. It is a decision that we have taken as a country collectively.

Col 27: Tom Brake (Carshalton and Wallington) (LD): The Minister is an honest man, and therefore when he says “Brexit means Brexit” he knows that there are as many versions of Brexit as there are Members on the Government Benches. He needs to reaffirm parliamentary sovereignty and ensure that Parliament can vote on the Government’s negotiating stance, for instance on the vexed and dangerous question of what happens at the Irish border.

John Penrose: As I said in my opening response to the urgent question, I am sure that there will be many opportunities, on many different occasions, for Members in this Chamber to discuss and debate all sorts of different issues, including the one that the right hon. Gentleman has just mentioned and many others. This negotiation will be an ongoing process, not a single event, and therefore he is absolutely right that there will be many opportunities where specific issues will become salient, where people in this Chamber will have very strong views and where people in devolved Governments will have very strong views. Those views need to be heard and aired throughout the process.

Col 30: Chris Bryant (Rhondda) (Lab) At the beginning of his first answer, the Minister said that this was not just a legal matter, but a political matter, so I cannot understand for the life of me why the Government are challenging the legal case. Surely sending in lawyers is just a complete waste of money—whether it is 10 lawyers or 1,000, it does not matter. Why are the Government wasting money on trying to assert that this is just a matter of royal prerogative, rather than accepting the political fact that while, yes, Brexit is Brexit—that may be the case—the Minister is far more likely to get a good deal from other European countries if he has managed to bind both sides of this House and both Houses of Parliament into a strong negotiating position?

John Penrose: … It would be helpful to have country-wide unanimity on this issue, so I am sad that there does not seem to be such unanimity on the Opposition Benches. The Attorney General, who is sitting next to me, is convinced that the Government’s case is strongly arguable, and that is why we are taking this case to court.

Col 32: Mr David Lammy (Tottenham) (Lab): Is not the situation a bit more than ticklish? This is the biggest constitutional change for our country for half a century. Last week, Chilcot criticised the legal processes that led to the Iraq warm, criticised the way in which prerogative power worked in the run-up to that war and, most importantly, criticised the fact that there was not a sufficient plan for after the invasion had been completed. On that basis, is the Minister really saying that we should not come back to Parliament so that individual Members can reach a view on whether we should trigger article 50?

John Penrose: I would draw a distinction in my reply between “whether” and “how”. We have been very clear, as has my right hon. Friend the Member for Maidenhead, that the destination is not in doubt: Brexit means Brexit … How we get there, however, is a matter for discussion. It is a matter for my right hon. Friend to lay out and I am sure that, once she is behind the door of No. 10, she will do so. At that stage, I hope that the right hon. Gentleman will have more detail about how those discussions and announcements might be made.

Col 34: Catherine McKinnell (Newcastle upon Tyne North) (Lab): The Minister cannot say what “Brexit means Brexit” really means, so is it not vital that, given we have no idea what the terms of exit will be, this is properly scrutinised and voted on by democratically elected Members of this House?

John Penrose: I think I addressed that in my initial remarks, but I am sure that there will be plenty of opportunities over a long period for Parliament to discuss many facets of the negotiations, and that the hon. Lady and many others will have a chance to make their views known. As for any decisions that might be made, I, like everyone else, will have to wait for the new Prime Minister to lay out her programme and timetable. I am sure that all will be clear at that point, and that we shall be able to address any decision points that may be offered.

Col 35

Chi Onwurah (Newcastle upon Tyne Central) (Lab): Brexit means Brexit, but there is no agreed definition of what “Brexit” means, apart from the fact that it involves parliamentary sovereignty. Is the Minister seriously proposing that we should undergo such a momentous seismic change as Brexit without its having been defined to the British people before the referendum, or decided on by Parliament after it?

John Penrose: The hon. Lady is right: the details will become a great deal clearer as the negotiation goes through. We will all discover more about the various facets of how Brexit will affect different parts of our lives as the negotiations near completion. However, I must repeat what I have said several times already: we shall not be able to say how Parliament will engage with that until the new Prime Minister has had a chance to lay out her timetable for the negotiations, whereupon it will be possible to assess when opportunities for debate and discussion will occur.

David Davis’s comments

In Trade deals. Tax cuts. And taking time before triggering Article 50. A Brexit economic strategy for Britain, David Davis made a number of comments relevant to his understanding of the Brexit negotiations. Although nominally updated to 14 July, the article does not take account of his new appointment under the May administration nor the impact on the timetable of the attenuated leadership contest. Nevertheless, he comments inter alia:

• So be under no doubt: we can do deals with our trading partners, and we can do them quickly. I would expect the new Prime Minister … to immediately trigger a large round of global trade deals with all our most favoured trade partners. I would expect the negotiation phase of most of them to be concluded within between 12 and 24 months.

So within two years, before the negotiation with the EU is likely to be complete, and therefore before anything material has changed, we can negotiate a free trade area massively larger than the EU. Trade deals with the US and China alone will give us a trade area almost twice the size of the EU, and of course we will also be seeking deals with Hong Kong, Canada, Australia, India, Japan, the UAE, Indonesia – and many others.

• Constitutional propriety requires us to consult with the Scots, Welsh, and Northern Irish governments first, and common sense implies that we should consult with stakeholders like the City, CBI, TUC, small business bodies, the NFU, universities and research foundations and the like. None of them should have any sort of veto, but we should try to accommodate their concerns so long as it does not compromise the main aim. This whole process should be completed to allow triggering of Article 50 before or by the beginning of next year.

In this process, we should work out what we do in the improbable event of the EU taking a dog in the manger attitude to Single Market tariff-free access, and insist on WTO rules and levies, including 10 per cent levies on car exports. Let us be clear: I do not believe for a moment that that will happen, but let us humour the pre-referendum Treasury fantasy.

• WTO rules would not allow us to explicitly offset the levies charged, but we could do a great deal to support the industry if we wanted to. Research support, investment tax breaks, lower vehicle taxes – there are a whole range of possibilities to protect the industry, and if need be, the consumer. Such a package would naturally be designed to favour British consumers and British industry. Which of course is another reason that the EU will not force this outcome, particularly if we publicise it heavily in a pre-negotiation White Paper.

• So in summary, we need to take a brisk but measured approach to Brexit. This would involve concluding consultations and laying out the detailed plans in the next few months. In conjunction with the high intensity negotiating free trade round this increase in certainty will stabilize the markets. As the free trade round and associated economic policies progress, we should see a material increase in foreign direct investment and domestic capital expenditure to take advantage of the opportunities that are created. This means that some of the economic benefits of Brexit will materialize even before the probable formal departure from the EU around December 2018. All economic estimates are subject to the vagaries of the world economy, but this approach should allow us to present to the British electorate in 2020 the early fruits of a successful global trade-based economic strategy as we build our place in the world.

Comment

Government lawyers support the view that the triggering of Article 50 TEU is a royal prerogative issue. The Government’s belief that “democratic principles should outrank legal formalities” would seem to be applicable where there is a doubt between different legal views, as seems to be the case at present. This appears to be consistent with the David Davis’s use of the phrase “constitutional propriety” in relation to the requirement to consult with the Scots, Welsh, and Northern Irish governments before Article 50 TEU is triggered. However, the very early meeting between the Prime Minister and Scotland’s First Minister was significant both in its timing and the emphasis placed by Mrs May on the devolution referendum.

Despite calls by “Leave” proponents that Article 50 TEU should be triggered immediately, as indicated by David Cameron in February this year, the growing appreciation of the enormity of the task associated with departure from the EU appears to suggest that such an action is unlikely in the next couple of months. Securing alternative trading arrangement is perceived as being a critical factor, highlighted in the evidence of Professor Michael Dougan, Liverpool University, to the Treasury Select Committee during its inquiry into The UK’s Future Economic Relationship with the European Union. Concluding trading agreements has been, and technically still is, a competence of the EU; the outgoing Chancellor of the Duchy of Lancaster, Oliver Letwin, who had been heading the Civil Service unit established by David Cameron charged with preparing to leave the European Union, stated that the UK Government does not have a single trade negotiator and that they would need to be recruited.

Early in the Commons debate, the Parliamentary Secretary, Cabinet Office, indicated that for “a decision as momentous as this one”, there would be debate and discussion in Parliament, which would probably not be “confined to a single debate or a single occasion”, adding

“[t]here will be many important issues about the timing and the substance of different facets of the negotiations that the Government, the Opposition, the Backbench Business Committee, and … Mr Speaker, will feel it is important to discuss, but on the details of which topics, on what dates, and the specific wording of the motions, we shall have to wait and see”.

However, in view of the (probably) irrevocable nature of the Article 50 TEU notification, there needs to be a much clearer understanding of the timeline involved in this and the parallel activities relating to Brexit.