What do you want from Parliament’s Article 50 debate?

With the issue of whether Article 50 needs parliamentary approval currently before the courts, there is some discussion of what Parliament ought to do with the process if it gets the chance.

While clearly there is no majority for simply blocking article 50, it is quite reasonable for MPs to put constructive amendments to the proposal, respectful of the mandate from June, and to vote against if those amendments are not accepted – as one would with any other bill before Parliament.

One amendment should be to give the people a vote on the final deal, so that we can choose, once we know what the reality looks like, whether we still want it. The value of this depends on whether article 50 is revocable – something that is still in doubt. More on that later.

Some other useful amendments, in the theme of the leave promise of “of course we can still co-operate where it is in our interests”

  • To seek to maintain co-operation on crime, policing, terror and intelligence. Theresa May has already indicated she is minded to do this, having already gone through the exercise of choosing which measures are in our interests during the coalition.
  • To seek to maintain membership of scientific research programmes. This is very important to UK universities, and is not even largely about funding, but continued participation in world-class collaborative programmes.
  • To seek some agreement on fisheries management to prevent overfishing, which would lead stock depletion, livelihoods destroyed and hungry people. (The fish don’t know where the borders are.)
  • To remain within the scope of EU policy on climate change.
  • To maintain as frictionless as possible trade with the EU.
  • To allow high skill sectors (at least) to recruit without any barrier between the UK and EU.

By way of honouring other leave promises, amendments to the goverment’s A50 resolution might

  • Find £350 million a week for the NHS. (This would involve a net payment from the EU to us. More on that later.)
  • Allow greater immigration of skilled people (eg curry chefs – as the curry trade has been promised) from outside the EU.
  • Reduce total net immigration to the tens of thousands. (This amendment should probably come from somebody who doesn’t move the previous one.)
  • Ensure that the Good Friday Agreement is honoured and therefore the border between Northern Ireland and the Republic remains open.
  • Ensure that Spain does not gain the right to close its border with Gibraltar.
  • Ensure that we have control of our borders.

These are just a few examples – do post more in the comments. More broadly, we are waiting to see whether the version of Brexit the government intends to seek is the one that was promised to the socialists (ha!), or to the buccaneering capitalists (you’d think) or the isolationists (as it’s looking).

If the government refuses to deliver what was promised they will be defying the democratic will of the people as expressed in the referendum on June 23rd, and they need to be sent away to try again.

One more thing we were promised was that the UK would have the upper hand in any negotiations – because of BMW etc – hence the demand that they pay us for our NHS. This may not be the case if Article 50 turns out to be irrevocable. The power to revoke would protect us from any attempt at brinkmanship that any 1 or 2 blocking EU members sought to engage in. In this case we ought to consider whether Article 50 is the correct route to Brexit. Cameron said it was, which shut down discussion at the time, but he lost.

* Joe Otten was the candidate for Sheffield Heeley in June 2017, is a councillor in Sheffield and is Tuesday editor of Liberal Democrat Voice.

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33 Comments

  • One amendment should be to give the people a vote on the final deal, so that we can choose, once we know what the reality looks like, whether we still want it.

    In other words, the usual EU approach to referendums: ‘You voted the wrong way you silly people, now do it again and do it properly this time.’

  • Andrew Chadwick 7th Nov '16 - 3:20pm

    More than anything, through preparation for the Article 50 debate and vote, I want the LibDems to come together and show we are the proEU party that I joined on the day of the referendum result. This means standing up for a true informed democratic process in the way that only Owen Smith has consistently done. On Twitter there are now more voices saying that the LibDems are backing Brexit than any clear commitments to party policy as I understand it: making Article 50 reversible and then providing for what I term a #BrexDealVote, while the option to Remain is open.

    Fine if you can help steer the Tories to recommend a softer Brexit but I cannot think of any form of Brexit that those who carry the legacy of the SDP could in individual conscience prefer to remaining in the EU and seeking reform. We are in the same grouping as Guy Verhofstadt who frankly now seems to be trying to do more for we Remainers than this supposed party of Europe. It’s New Labour people who are making the clearest arguments; we seem to have more nuances and contradictions than we have MPs.

    Sarah Money needs backing for her clear proEU views so that Richmond votes for her are votes against Brexit, not for some weakened form of ‘cowpox’ Brexit.

    Wake up and fight, LibDems, stop trying to be all things to all men, do not fear supporting what now seems the majority view as the lies of the leave campaign start, even over two years before an actual Brexit, to come home to roost.

  • Andrew Chadwick 7th Nov '16 - 3:22pm

    Sarah Olney not as spell corrected.. apologies

  • Eddie Sammon 7th Nov '16 - 3:32pm

    I’m interested in an amendment to keep us in the single market, but I want it to come with a commitment to EU-wide reform on free movement.

    The Labour activist Douglas Dowell made me realise that Europe’s big fear is if they abandon one of the four freedoms (free movement of people) then other countries will soon start attacking the other freedoms, such as free movement of goods, but with an anti-emigration party becoming the biggest party in Lithuanian politics the other week it seems Europe could unite on this. Free movement for skilled workers wouldn’t be restricted.

  • Dav, the referendum, in that sense, is nothing to do with the EU

    It’s surely as much to do with the EU as the Irish referendums (after which they were told to go away and vote again, and do it right this time), and the French and Dutch referendums (which were simply ignored).

  • Andrew Chadwick 7th Nov '16 - 4:30pm

    Not best ignored when they are statements from Tim Farron and David Laws, both accepting a June 23rd mandate for Brexit, not just for explanatory negotiations. Then there are Nick Clegg’s various fatalistic public statements writing ‘We lost the war’, ‘Brexit we Must’ and in a BBC interview saying ‘We all accept the Government has a mandate to pull us out of the EU’.

    I start with a bias to believe, as you say, that the LibDems want to stay in the EU but I have only heard it earlier from Tim Farron, and there is not a peep of that in his latest article for the New European. So this is not just Twitter. The Daily Telegraph also picked up some of Sarah Olney ‘s earlier blog statements, since deleted, which use the same kind of compromising words.

    Why start your fight against a bad referendum with a lying, inconsistent Leave campaign, by prefacing every public statement with ‘of course we all accept the result’ – just as I think you did! Also confirmed at local meetings I attended.

    I understand why people seeing a Hard Brexit as a ‘smallpox’ will try and immunise against it with arguments for a ‘cowpox’ Soft Brexit but if we do not argue hard, and now, for the option of Remain via the Article 50 process and vote, it will really be too late. What you think the LibDems stand for is one thing; I want to see the party prove it!

  • Tony Dawson 7th Nov '16 - 4:37pm

    @Dav :

    “the usual EU approach to referendums: ‘You voted the wrong way you silly people, now do it again and do it properly this time.’”

    You are the only person calling yourself ‘silly’ here, Dav, at least to date. The Irish, as I recall it, decided on their second referendum that they had got it wrong the first time. That does not signify ‘silliness’ in my book. It signifies maturity and responsibility to be able to acknowledge their earlier mistake. If more people took this approach to life, there would be less silliness all round.

    I wonder, though,ere the Irish in their first referendum vote systematically misled by a conspiracy of the strange and dishonest fighting a useless campaign by ne’erdowells who had hijacked the state referendum money to pour it down the drain?

  • Denis Loretto 7th Nov '16 - 4:41pm

    The crucial point to me is whether or not an Article 50 notification is reversible at the behest of the applicant. Here is an interesting quote –

    “Lord Kerr of Kinlochard, who wrote Article 50, says the UK could choose to stay in the EU even after exit negotiations have begun –
    “[Article 50] is not irrevocable. You can change your mind while the process is going on. During that period, if a country were to decide, ‘Actually we don’t want to leave after all,’ everybody would be very cross about it being a waste of time, they might try to extract a political price, but legally they couldn’t insist that you leave,” he says.

    The Scottish cross-bench peer believes the country “might want to think again” when the terms of Brexit become clearer. Lord Kerr says he never envisaged the UK would make use of Article 50: “I thought the circumstances in which it would be used, if ever, would be when there was a coup in a member state and the EU suspended that country’s membership.”

    If Lord Kerr is right (can we get definitive confirmation of this?) then the voting for triggering of Article 50 can be agreed by parliament without great difficulty or even attempts at this early stage to achieve amendments. The government are now saying that when the negotiations start they will be as open with parliament as they can be consistent with not damaging national interests by disclosing too much of their hand. The debate on the so-called “Great Reform Bill” might be a better forum for proposing effective amendments if necessary.
    It must be borne in mind that Labour are now committed not to oppose triggering of article 50 even if no amendments are achieved. If so Lib Dem power could only effectively be used in the Lords. I for one could not go along with our rather indecent numbers of unelected peers blocking the triggering of Article 50.

  • Andrew Chadwick 7th Nov '16 - 4:46pm

    On reversibility: both sides in the High Court case stated they accepted Article 50 as irreversible. Parliament (with EU Assent?) would have to act to make it clearly reversible and without that, bang goes our policy to offer a vote with the option to Remain. Hence the urgency for clarity.

  • Matt (Bristol) 7th Nov '16 - 4:52pm

    We also need clarity on the need for any Bill to rule in or rule out any enabling legislation in the devolved assemblies, and what form that might take.

  • Andrew Chadwick 7th Nov '16 - 5:19pm

    Finally from me a small but important correction on the LibDem mood music within Twitter; it was Paddy Ashdown, not Tim Farron, who just posted ‘MoreUnited is NOT for a 2nd in/out referendum. It accepts Brexit but seeks closest ties to the EU. I do NOT back 2nd in/out ref.’

  • David Evershed 7th Nov '16 - 5:48pm

    Once Article 50 is triggered the UK will leave the EU.

    Any second referendum on the negotiated terms will be a choice between

    a) the terms negotiated between the Uk and the EU, and

    b) a default position using World Trade Organisation rules.

    There will be no choice of remaining in the EU.

  • paul barker 7th Nov '16 - 5:58pm

    What I would like to see is a Free Vote with MPs voting according to their own judgement. Its been estimated that in The Referendum itself, MPs voted 3:1 for Remain so unless a third of the Remainers have changed their minds, that would mean that we stay in The EU.

  • “What I would like to see is a Free Vote with MPs voting according to their own judgement. Its been estimated that in The Referendum itself, MPs voted 3:1 for Remain so unless a third of the Remainers have changed their minds, that would mean that we stay in The EU.”

    Presumably you wish MPs to ignore the result of the referendum and tell the 52% majority that they voted the wrong way and they should know better.Good luck with that one!

  • Denis
    I agree with you. I was amazed when the the governments legal team conceded this point in the recent high court case. It would be basic due diligence to clarify this point and the height of incompetence to enter into a process that was not clearly understood. It should be made a condition of article 50 submission that this point of law is clarified.
    This is the issue the government is desperately trying to avoid.

  • Denis Loretto 8th Nov '16 - 12:36am

    Here’s another point – even if reversing a brexit decision needed consent from the “27” I think there is every chance of such consent being granted. The brexiteers tend to exaggerate the UK’s importance to the EU but I doubt if there is any one of those 27 countries who would not welcome the UK remaining a member. I should say here I am not pursuing this point because I want to flout the referendum result but because I think it is crucial to have a fallback position in the event of only the hardest of hard brexits being available from negotiations.

  • Malcolm Todd 8th Nov '16 - 12:54am

    Has anybody who thinks that Article 50 is reversible actually read it? It’s not very long and not very hard to understand. Could someone explain, with reference to the actual text rather than what someone who wishes he’d never written it says he thinks it ought to mean, how they justify their opinion?

    On the point of political practicality — it needs only one out of 27 members to object and there will be no possibility, even by fudge, of allowing the UK to stay after notice is given and expires. I think it is entirely likely that at least one or two will consider it inexpedient to allow it; or at least, that they will only be prepared to countenance it in return for a political cost so high that even most Remainers would reject it.

  • I’d back:
    – An amendment on staying in the Single Market and customs union (this implicitly covers many other things such as freedom of movement).
    – An amendment on open borders in Ireland.
    – An amendment calling for a referendum on the deal.

    However, I think the party’s MPs should commit to voting for Article 50, regardless of whether or not amendments pass. It’s the only way to respect the referendum result.

    Most lawyers seem to think Article 50 is reversible. But more importantly, Europe wants Britain to stay. If the British people change their mind, I can’t believe any EU member will insist we leave.

  • RBH I think you are way over the top optimistic!! This just shows what happens if over 40 years working together are cast aside with the simple counting of easily delivered crosses on a ballot paper. Shame.

  • Denis Loretto 8th Nov '16 - 9:01am

    @Tim13

    Much though I share your feelings I’m afraid “crosses on a ballot paper” have been fundamental to our democracy for too long to dismiss them now. While trying to keep (if only for bargaining purposes) the possibility of reconsidering this monumental decision, our party must be seen to be part of the mission to secure the least harmful version of brexit. Nick Clegg seems to me to be doing exactly that.

  • Malcolm Todd 8th Nov '16 - 9:13am

    RBH 8th Nov ’16 – 2:33am

    “Most lawyers seem to think Article 50 is reversible.”

    Evidence?

  • “Most lawyers seem to think Article 50 is reversible. But more importantly, Europe wants Britain to stay. If the British people change their mind, I can’t believe any EU member will insist we leave.”

    I do not believe article 50 is reversible once invoked. As Malcolm Todd says above, if it was so, it would have been written into the legislation.
    The fact that something is not written, is not basis for it being permissible.

    The EU would never want to allow a situation like that. Imagine the uncertainty it would cause across all states.
    A member state gets a new government who is pro-leave, they invoke article 50 to see what kind of deal they can get if they leave the EU. After 20 months or so, the member state changes it mind and withdraws its article 50.
    A few months later another member state is unhappy and invokes article 50, starting a fresh round of 2 years negotiations with another member state.
    That member state withdraws article 50 after 18-20 Months

    What we would soon see is member states who feel sidelined by the EU and are not happy, threatening an article 50 if they did not get what.
    The uncertainty it would cause and the instability of an already unstable organisation would be immense.

    On that basis, I do not think the EU will allow this to happen.

    Once article 50 has been invoked, there is no reversing that decision. 2 years negotiations begin. If after 2 years a deal has not been struck we either
    a) resort to WTO rues
    b) by majority agreement of EU states, extend the 2 year negotiating period

    After a deal has been struck. That is it.
    So all this talk of a 2nd referendum on the deal that has been struck is nonsense.
    The article 50 legislation is clear, Once a Deal has been struck between the member state and the EU. The choices are Accept the Deal or resort to WTO.

    If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to he procedure referred to in Article 49.

  • RBH.
    How would we know if ‘half the British people change their mind’?

  • @Malcolm Todd

    I’m not a lawyer and there is clearly a range of opinion on this. But the articles below seem fairly persuasive that intent to leave a treaty would normally be reversible under international law.

    For example:
    https://ukconstitutionallaw.org/2016/10/17/aurel-sari-biting-the-bullet-why-the-uk-is-free-to-revoke-its-withdrawal-notification-under-article-50-teu/
    The former director general of the EU legal service here: https://www.ft.com/content/b9fc30c8-6edb-11e6-a0c9-1365ce54b926
    Pg 10 here: https://www.psa.ac.uk/sites/default/files/Brexit%20&%20Beyond_0.pdf

  • @ Joan Hand

    I’d hope via a referendum on the deal!

  • intent to leave a treaty would normally be reversible under international law

    But in the case of treaties, as in all international matters, politics always trumps law. Whatever the wording, whatever the intent, what really matters is what the parties to the treaty are prepared to accept. There is no higher authority than the nation-state to judge the matter. If all parties to the treaty agree to ignore the wording then the wording will be ignored.

    In this case, of course, that works both ways: even if the wording is that it is not reversible, the other EU states may wish not to lose the UK, so allow it to reverse in defiance of the Article. On the other hand, even if by the wording it is reversible, it may be that they are so worried about the incentives it would give to other states to play brinkmanship that they refuse to allow a reversal.

    But the point is, the opinions of lawyers on this matter are irrelevant: it will come down to the decisions of the heads of state at the time. Politics trumps law.

  • Richard Underhill 8th Nov '16 - 10:44am

    659 Members of the House of Commons openly represent their constituency interests and lobby for them openly and on the record. Business interests lobby directly and join groups to lobby, as do employees and customers. Pity the person who tries to reconcile all these interests. It happens that Conservative Cabinet Minister Greg Clark is the MP for Tunbridge Wells, where I live. The repeated statements he made about Nissan could be compared to a striptease, from which we might deduce that he needed to refer back to his boss about what he was allowed to say. He would probably say that he is bossed by his constituents, but I mean the PM and/or instructions promulgated by her staff at Number Ten.
    The negotiations to join the EEC made UK fishermen unhappy. The result of the current negotiations carries risks that are both large and highly probable, so that there will be loud and widespread cries of ‘SELL OUT’, which is why the PM said that “We will make a success of it”. Well maybe. All forecasts are about the future. The future is always uncertain. The claims to certainty made in her speeches to the Tory conference this autumn were excessive and lose credibility for this reason. A concentration of power in the hands of any one person is risky. Power corrupts. Absolute power corrupts absolutely.
    Every Home Secretary has staff providing ‘country information’ about countries from which immigrants come and to which some of them might be returned.
    http://www.transparency.org/research/cpi/overview

  • Sue Sutherland 8th Nov '16 - 1:56pm

    Andrew Chadwick. We are members of a party committed to EU membership and I don’t think that’s going to change any time soon. However, a majority vote in the Referendum showed that most people don’t agree with us and we have a Prime Minister who says she will work to make a success of leaving the EU. We are also a party that seeks not only to defend democracy but also to improve it in our country so IMHO we are in a Catch 22 situation where whatever we do is likely to undermine our reputation concerning either or both of those issues. It doesn’t really matter whether the referendum was advisory or not, which campaign lied the most or whether it should never have been called in the first place, the result is that most voters have expressed an opinion which they believed would be acted on. I think we must honour that result.
    However, being practical we must also work for the best deal for our country so Article 50 being debated in parliament is a way of doing this. It also buys the country some much needed time.
    I cannot see how we are in anything but a lose / lose situation at the moment. We are at the mercy of EU members with regard to any deal there and at the mercy of the rest of the world with regard to trade outside the EU. The only way out of this mess that I can see is if there is another referendum at the end of negotiations once the position is clearer. So maybe the additional information Parliament needs other than the ideas suggested is information on trade deals with the rest of the world.

  • Andrew Chadwick 8th Nov '16 - 4:20pm

    Sue,
    Sadly I agree with most of what you say, except for any lasting validity of the snapshot of misled opinion on June 23.

    However if LibDem party policy is for that referendum at end of negotiations (which in practice might only be about how much we pay into the EU to leave it), it only can do any good if the result of refusing the Government’s negotiated deal were to Remain – otherwise we are doing UKIP’s work for them by throwing ourselves to a WTO-only outcome. If this really is agreed LibDem party policy and something we are using to attract the Remain voters of Richmond Park, then I would have expected to see it mentioned in Tim Farron’s last New European article, right next to the third-party argument that made eloquently the case for such a ‘#BrexDealVote’. What I am seeing in our externally projected voice since June 24 is no longer a LibDem party with a distinctivem actively pro-EUm set of actions, however much the cognoscenti within the party tell me this is the case

    Such a policy to keep open and offer a democratic option to remain is just theoretical, as has been said, some kind of token offer to appease the Remainers unhappy with a soft Brexit, unless we are prepared to fight hard and concertedly, BEFORE voting in favour of any kind of Tory recommendation around Article 50:
    1) to make the Article 50 unarguably reversible (despite the pivotal arguments of both sides in the High Court case, that it is not) and
    2) to secure firm commitment to the second referendum within the timescale when it could be reversed; likely with cross-party agreement from SNP, many Labour MPs possibly Tories seeing the writing on the wall for our economy – but not, as it appears, some of our own key MPs and Lords.

    As a further wrinkle it may be that a transitional soft Brexit may buy time to allow that second vote, but unless we secure the option to stay in the EU after all at the end of such a transition, which could be really problematic, I don’t see us ever being able to reenter it (any of the by now seriously annoyed EU27 could block that). Then the Partycommitment you mention to EU membership would be straw in the wind

    Right now we are not at the mercy of individual EU members since we have the default status of remaining in the EU. Careless use of Article 50 would destroy that.

  • “Has anybody who thinks that Article 50 is reversible actually read it? …” Malcolm Todd 8th Nov ’16 – 12:54am

    From what I can see, all options to either step off or stop the conveyor are dependent upon the favourable intervention of the European Council and European Parliament that results in a “withdrawal agreement” that doesn’t result in a withdrawal…
    The unilateral rescinding of a withdrawal of notice, does not stop the treaty expiry clock, started by the initial notification, unless the European Council agrees to it (ie. it grants an indefinite extension).

    Because of this (ie. rescinding an Art50 notification can only have an effect on the process with the consent of the EU), I think it is safe to regard the invocation of Article 50 as being a one-way ‘exit’ conveyor – which is what was (correctly in my opinion) presented to the UK High Court

    [Asides:
    Aurel Sari in his summary overlooks this rather important point – so whilst he is correct in saying the UK could rescind it’s notification, he omits to note that the effect of this action is wholly dependent upon the EU.

    It is also clear the Scottish cross-bench peer Lord Kerr hasn’t read what Article 50 actually says otherwise he wouldn’t have made the dumb statement: “I thought the circumstances in which it would be used, if ever, would be when there was a coup in a member state and the EU suspended that country’s membership.”; Article 50 does not provide any mechanism for the EU to suspend a country’s membership, without that country first initiating proceedings…]

  • “In other words, the usual EU approach to referendums: ‘You voted the wrong way you silly people, now do it again and do it properly this time.’”

    Not at all, Dav. Much more: ‘You voted for a Brexit, so we got you this one. Did we get it right?’

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