Brexit, Padfield, and the Benn Act

27th September 2019

One welcome feature of this week’s Supreme Court decision on the prorogation issue was that it was openly and unapologetically a “constitutional” judgment.

It proudly wore its constitutional significance like a judicial robe, or like a brooch.

This is not the case of previous constitutional cases.

Take the 1968 House of Lords case of Padfield, for instance.

You can read Padfield without realising its constitutional significance (and many first year law students do).

But as interpreted and applied in subsequent cases, the Padfield principle is a fundamental rule of the UK constitution.

Put simply: it is not open to a Minister to do a thing (or not do a thing) that would circumvent or frustrate an Act of Parliament.

And this makes sense: there would be no point in having Acts of Parliament if ministers could casually sidestep the legislation.

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So, in the context of Brexit, where there is now the Benn Act obliging the Prime Minister to seek an extension of the Article 50 period so as to avoid a No Deal Brexit, this principle means:

  • a minister cannot send a side letter to the European Union saying that the UK does not really want an extension and asking EU to reject the application
  • the government cannot use delegated or secondary legislation (or Orders in/of Council) to rob the Benn Act of effect

And so on.

The response to each of these clever ideas is simple: Padfield.

Unless the government source behind such wheezes explains how the Padfield principle can also be sidestepped then it is just legal illiteracy and amateur lawyering.

These suggestions would not even cause any delay, to “run down the clock”: the law is so basic here that the High Court would not need more than a few hours before granting a remedy preventing such unlawful behaviour.

It may be that the real intention with these suggestions is to get the courts to intervene because it “plays well” politically.

But such infantile tomfoolery is not a good reason for the law not to be upheld.

All because someone wants to break the law to show off to others, it is not a reason for the law to not be applied.

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The Civil Contingencies Act 2004 is not an Enabling Act for Brexiters

26th September 2019

Every so often in the story of Brexit the suggestion is made that the government could use emergency powers under the Civil Contingencies Act 2004 to do something or other, sometimes even to “push through Brexit” or to amend or repeal unwelcome legislation.

The reality is that it would be difficult to use that Act in practice. 

This is because of three things:

  • it is not easy for a thing to qualify as an “emergency’
  • there are several legal conditions to be fulfilled and legal tests to be met before the powers under the Act can be used (all of which can be the grounds for immediate court challenges)
  • there is strict parliamentary supervision for use of the Act

For central government to successfully rely on the emergency powers under Act requires, well, an emergency that cannot be dealt with under any other legal powers and requires a legal provision to be made.

What the Act is not is an “Enabling Act” where a politician can merely assert there is an emergency so as to invoke wide legal powers to do anything they may want.

If, however, there is an emergency as defined in the Act, ministers do have wide legal powers for a short period. These powers do include being able to amend or repeal primary legislation (or do anything that can be done by primary legislation) subject to strict conditions and tests.

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This post will now take a guided tour through the Act so as to show how hard it will be for Brexiter (or other) politicians to use the Act.

The first thing to do is to click on the Act here.

Straight away, as you scroll down, you will see the Act has two main “Parts”.

Part One is to do with obligations on local authorities. 

These are fascinating (and you can read more here and here) but this is not what excited Brexiter politicians are interested in.

They are interested instead in the powers under Part Two of the Act and so it is to that we should now go.

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What is an “emergency”

The first step is for a thing to be in the scope of the definition of “emergency”.

If the definition is not met then the emergency powers are unavailable

“Emergency” is defined in section 19.

On the face of it, section 19(1) provides three wide definitions of “emergency”.

But the first two definitions are subject to sections 19(2) and 19(3), and you will see in both the word “only”.

And if you look carefully at all three definitions in section 19(1) you will also see a “serious damage” requirement.

If a thing does not meet the applicable “only” and “serious damage” requirements then it will not be an emergency for the purposes of the Act.

And as these are objective legal tests it will be a matter for the court, not the minister, to decide if the definition of “emergency” is met.

Not just a politician saying so.

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The legal conditions and tests for using emergency powers

Fulfilling the section 19 definition of “emergency” is only the start.

We then come to the three conditions under section 21, all of which need also to be met (and not just one or two of them).

These include a “necessity” requirement under section 21(2) and an “urgency” requirement under section 21(3).

These are objective conditions that, again, can be for a court to determine.

Once the section 21 conditions are met, we then go to section 20, which is the operative provision for making regulations.

You will then see that section 20(5) provides for further requirements on emergency regulations, including relevancy, proportionality and compliance with human rights law.

The requirements of relevance and proportionality are important and would mean that emergency regulations had to have a direct connection with the emergency and go no further than needed in dealing with the emergency.

And, again, these are objective legal tests which can be tested in court.

We then move to section 22, which sets out the scope of the regulations.  

This section provides for what the regulations can do, including anything which can be done by Act of Parliament.  

You will also notice, however, that there is a requirement that the minister be “satisfied” that the regulations are appropriate – an additional legal hurdle.

You will see also at section 22(5) an express obligation on the minister to have regard to the roles of parliament and the courts in supervising the regulations.

And then, after all these hurdles, we get to section 23, which is headed “limitations of emergency regulations” – that is, limitations in addition to all the conditions and tests before we even get to this stage.

Section 23(1) in particular provides for a general condition governing use of the regulations:

“(1) Emergency regulations may make provision only if and in so far as the person making the regulations is satisfied—

(a) that the provision is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made, and

(b) that the effect of the provision is in due proportion to that aspect or effect of the emergency.”

Note the use of  “only if and in so far” which is as strict an obligation as the law allows.

This section 23(1) obligation, of course, covers many of the tests and conditions elsewhere in the Act, but (as lawyers say) it places the legal position beyond all doubt.

If there is any attempt by a minister to use the emergency regulations other than in direct proportion to an emergency as defined, the regulation can be easily quashed by a court.

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The supervision of emergency powers

But say all the requirements are met, and the emergency regulation has been made and is being used appropriately so as to deal with an emergency – there is then “back end” supervision, as well as “front end” requirements.

Under section 26 emergency regulations lapse after a maximum of thirty days.

Section 27 provides that there the regulations be brought parliament as “as soon as is reasonably practicable” within those thirty days, and then will lapse within seven days unless approved by both houses of parliament.

There is even provision under section 28 for what happens if (ahem) parliament is prorogued (if so, Parliament has to be summoned).

Making regulations under the Act in an emergency without Parliament is therefore possible in exceptional circumstances, but Parliament is still quickly engaged to ensure that there is no misuse.

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The Contingency Powers Act and Brexit

If there is a “No Deal” Brexit then it is possible, indeed likely, that there are emergencies such as to fulfil the section 19 definition.

But any emergency regulations, if they are required at all, would have to be subject-specific, and would need to deal directly with that emergency and nothing else. 

Attempting to use the regulations to, say, amend legislation which had nothing to do with mitigating the emergency would not be legally possible.

Any such attempt to repeal or amend legislation for a wrongful purpose would be ultra vires the Act and have no legal effect.

There are several ways any such misuse can be challenged in the courts.

The Contingency Powers Act has an important purpose, but Parliament was careful to build in a number of safeguards against it being abused.

The Act is not an Enabling Act for Brexiters wanting to impose arbitrary government.

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They are locking the doors of Westminster Palace

10th September 2019

So the prime minister has done it.

Boris Johnson has now locked the doors of parliament for five weeks in the short lead up to the UK’s set departure from the EU.

Actually closed down parliament, so as to prevent his government being scrutinised by the people’s representatives.

Not much one can add to that, but it is so dark and sad a fact that it warranted a post just for itself.

 

What if the Prime Minister deliberately broke the law over extending Article 50?

7th September 2019

There is, it seems, a serious suggestion that the Prime Minister would break the law rather than request or accept any extension to the Article 50 period.

By way of background the United Kingdom is, of course, set to leave the European Union by automatic operation of law on 31 October 2019.

There is, however, legislation about to be enacted that would oblige the Prime Minister to seek or agree to any extension to the Article 50 period.

The current Prime Minister Boris Johnson is quoted as saying:

“They just passed a law that would force me to beg Brussels for an extension to the Brexit deadline. This is something I will never do.”

And asked if this meant he would disobey the law, he is reported as saying:

“I will not. I don’t want a delay.”

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Well.

Some news reports state that a senior politician states the legal consequence of such a breach would be little more than “contempt of parliament” and that he would be a “martyr”.

Another news source has suggested he is merely “goading” parliament for a possible “impeachment”.

In fact and at law, it would be far more serious than that.

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A prime minister holds public office.

As such a prime minister comes within the scope of the criminal offence of misconduct in public office (read all you need to know here).

For any public servant to deliberately seek to breach the law (as opposed to say, creatively comply with it or find a loophole to avoid it) would be (on the face of it) misconduct under this offence.

If all the elements are made out of the offence then there would be a criminal conviction and a sentence, which can be up to life imprisonment.

Also caught would be any person, even if not a public official, who conspired, assisted or encouraged the offence (this can be shown by the Operation Elveden prosecutions).  

This could thereby catch any aides or advisors who had sought to facilitate the principal offence.

And that would not be the end of the legal peril.

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There is also the tort of misfeasance in public office where, if Johnson or any other public servant was held to be a tortfeasor (a lovely legal word, which Johnson would otherwise no doubt enjoy) then there would be liability in damages for losses that were caused by the unlawful action.

In respect of the losses which would be caused to companies and individuals by a No Deal Brexit forced by the wrong such damages would be likely to be colossal.

This would be in addition to, or separate from, any criminal liability – an offence does not have to have been prosecuted for the tort to be made out.

The criminal offences and the tortious liability would be in the personal capacity of those found liable.

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This would be in addition to any legal sanction (such as imprisonment for contempt of court) for breach of an injunction and/or mandatory order obliging Johnson and others to comply with the law.  

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All the above is not because the Prime Minister has any special status: it is just the law treating him as any other public servant.

The Prime Minister is not above the law.

No doubt the talk so far is not to be taken seriously, and that there is no real possibility that the Prime Minister and others will conspire to break the criminal law, break any court orders, and commit a tort which will cause devastating losses to millions of people and thousands of companies.

It is surely just bravado, to impress reporters and political supporters.

But if it not bombast and bluster then all those involved had better get some jolly good criminal and civil defence lawyers.

Because, unlike – say – breaches of referendum spending and campaigning laws, breaking these laws will have serious consequences.

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Podcast on a No Deal Brexit and the Constitution

20th August 2019

I did a podcast yesterday and discussed the constitutional context of the current Brexit situation and the sheer difficulties now facing those opposed to a No Deal Brexit,

In essence: a No Deal Brexit can still be stopped, but it is not going to be easy, and the constitution is not going to be like the cavalry coming to the rescue.

Do have a listen and make any sensible, non-irksome comments below.

Mr Corbyn writes a letter

15th August 2019

A path of least resistance

(Source: Wikipedia)

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What, if anything, should make one make of the letter sent by Jeremy Corbyn, the Leader of the Opposition, to other party leaders and senior parliamentarians?

This is not a party-partisan blog and many have Very Strong Opinions about Corbyn and the state of the party he currently leads.

But from the perspective of law and policy, the letter contains a significant offer, and it should be taken seriously.

If your objective is either to stop Brexit or to avoid a No Deal Brexit there are now few options still available before the United Kingdom is set to depart the European Union by automatic operation of law on 31st October 2019.

The main reason options are limited is that the current government, under a new prime minister, is committed to the United Kingdom leaving on that date in any circumstances.

In this situation, any further extension to the Article 50 period (or even revocation) would be complicated.

Requesting extensions is an executive act – in particular, it is the prime minister (and cabinet) who would instruct the United Kingdom representative to the European Union (UKREP) to make the request or accept an offer of an extension.

(This is what happened with the Article 50 notification and the two extensions to date.)

As it is an executive act, it is difficult for a parliament (even one committed to avoiding “No Deal” in principle) to get round.

The prime minister has the key to that door and, as of today, nobody else does.

This problem for those opposed to No Deal, however, can be solved in two ways.

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The first, and hardest, is for parliament to somehow enact mandatory legislation before 31st October 2019 obliging the prime minister to instruct UKREP to make a request for an extension (or accepting an offer of an extension).

This would replace the executive’s legal discretion with a legal rule with which it has to comply.

But this would not be straightforward.

In any circumstance it is difficult for contentious legislation to get through both houses of parliament at speed.

It is almost impossible to do in the face of a government opposed to that legislation.

And, as the legal blogger Spinning Hugo explains, such a course of action would here also probably require amendments passed by majorities to parliamentary procedures.

And also, there may be various changes needed to exiting Brexit legislation.

This means there are a lot of difficult things to align in a short period of time on a matter of immense public controversy.

The required legislation passed in the face of an opposed executive is not impossible, but it is unlikely.

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The second, less difficult way is for those opposed to a No Deal Brexit to take control of the executive.

(This assumes that the current prime minister does not flip on the issue, which cannot altogether be ruled out.)

This means it would be straightforward for a new prime minister to make an extension request.

And as the government normally has control over the parliamentary process, any necessary statutory changes would also be far more straightforward.

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The Corbyn letter sets out a practical and plausible way how the second approach can be carried out.

Two useful boxes are ticked – a general election would be (likely to be) acceptable to EU27 as the basis for an extension, and the commitment is to this being a one hit wonder administration before a general election, with no other policy commitments other than obtaining an extension.

Anyone whose opposition to a No Deal Brexit (or to any Brexit) is an absolute priority must find this proposal attractive.

Some will aver that a further referendum is preferable to a general election.

Others will be Meat Loaf opponents of a No Deal Brexit (or to Brexit) and say they will do anything, but they cannot support a Corbyn-led government.

(And Corbyn’s supporters are just as much Meat Loaf Remainers if they cannot support an alternative figure leading a government of national unity (or GNU) for the purpose of an extension.)

Corbyn is the Leader of the Opposition and so if the current government fails to win the confidence of the house of commons then, constitutionally, he is entitled to first dibs at forming a new ministry.

Again, this is not to say that there could be a better alternative prime minister, and a majority put together by other means.

But Corbyn’s offer is the easiest approach and it requires fewer things to align.

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Will it happen?

One recurring problem with Brexit is that the good is the opposite of the best, and purist positions are maintained where compromise would be more sensible.

And many would be offended at the prospect of a Corbyn-led government in any situation, and so would prefer a No Deal Brexit under the current government.

That is a matter for politics (and politically there is merit in a hostile view, and the record of the main opposition party on anti-semitism, for example, is dreadful).

But from a non-partisan practical law and policy perspective Corbyn’s offer is, as of today, the path of least resistance to avoiding a No Deal Brexit (and also to avoiding Brexit itself).

Anyone for whom stopping either a No Deal Brexit or Brexit altogether is an absolute priority should support it – at least until another viable option comes along.

**

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The Myth of Retrospective Remaining

12th August 2019

Marriage à-la-mode: 6. The Lady’s Death, by William Hogarth

(Source: Wikipedia)

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There is a view gaining some traction among those who support the United Kingdom remaining in the European Union.

The view is that after 31 October 2019 it may be possible for the UK parliament to retrospectively annul the Article 50 notification so that the UK can be regarded as never having left.

This view is false.

To understand why the view is false, one first can go to Article 50 of the Treaty on European Union, which many will know provides for how a member state can unilaterally leave the EU.

The relevant part is in Article 50(3):

“The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

The significant phrase is at the beginning:

“The Treaties shall cease to apply to the State in question…”

This describes the position at international law.

The member state on departure shall cease to be party to the relevant treaties which govern EU membership.

The member state is out; a former member; a member no more.

The member state is then a “third country” as much as any other non-EU member.

This is the public international law equivalent of a decree absolute ending a marriage.

The marriage is over.

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But so used are UK pundits and politicians to the supposed omnipotence of the UK parliament, it is believed that somehow this departure can by legal magic be disregarded.  That the UK can, by some legal fiction, be deemed never to have left.

It will be too late.

The door has shut.

The cat, the horse and the genie are out of their respective containers.

No loud tearful banging or elaborate legalistic ruses can reverse the legal event of departure.

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Once a member state has left the EU then there is only one way back in – the perhaps soon-to-be-famous Article 49.

Article 50 itself, at (5) provides that Article 49 is the one means of return:

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

This process would likely be a slow process, and even if the UK were eventually successful, there would be considerable doubt whether the rebate and various opt-outs would resume.

Some would question whether the UK would meet the Copenhagen Criteria.

And, as with the Article 50 revocation notice, an Article 49 application can be unilaterally revoked by the state in question at any time.

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To place any reliance on the UK parliament retrospectively asserting it was an EU member after its departure under Article 50 is dangerous and delusional.

There can, of course still be an agreed extension of time, and the departure date can also be varied by agreement of the UK and EU27.

There can also be revocation of Article 50.

There are real options for UK politicians seeking to avoid a departure for the EU on 31 October 2019.

These options remain open, regardless of the breathless fanaticism of those in and close to the current government.

And these are the options that should be being taken seriously, rather than believing in a Remain breed of unicorn.

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Brexit and the new Prime Minister

24th July 2019

Today there should be a new Prime Minister.

The new Prime Minister is a person about whom many (including me) have Very Strong Opinions.

But regardless of the character and personality of the new Prime Minister, what can usefully be said about the appointment and Brexit?

The United Kingdom continues to be a full member of the European Union.

That membership, however, is set to end on 31st October 2019, just under one hundred days away, by automatic operation of law.

This departure from the European Union can be delayed or averted, but only if one of three things happen.

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First, there could be a further extension.  There has already been two.  When the current extension was granted, the United Kingdom was warned not to waste time.

The United Kingdom, however, has wasted time.  There has been no real preparation for “no deal” and the deal on offer has made no further progress.

The governing party has been preoccupied with a leadership election, as have the political and media classes generally.

An extension required unanimous support from the twenty-eight member states.

In theory, say, Malta or Cyprus could even say no, and that would be enough for there to be no extension.

And unless there is a good reason, the United Kingdom may not get another extension, especially given how it has wasted this one.

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Second, there could be a deal which provides for a new departure date.

This would require revisiting the draft agreement and perhaps converting the current transition period to a limited period of further membership (and this would solve a range of technical problems).

There could even be an agreement for continued membership until a future relationship agreement was in place (and this would address the backstop problem sensibly).

But again, this is not in the gift of the United Kingdom. 

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Third, there is revocation.

A sensible government acting in the public interest (ho, ho) would revoke Article 50 and accept the current exercise is botched.

Brexit-supporters should be told to come back with a better plan.

This, of course, is unlikely but it is the only exception to departure on Hallowe’en which is in the United Kingdom’s gift.

The new Prime Minister would not want to revoke the process – but it is the only way to “stop a No Deal Brexit” which is entirely within the control of the United Kingdom.

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The options above would be the same for any new Prime Minister.

The character and personality of the new Prime Minister will distract many for a while, but the structure of the current situation will continue to be the same.

As it stands, the prospect of a No Deal Brexit on 31st October 2019 is a real one – an outcome in my view which is more likely than not.

The other outcomes require support from the European Union or a revocation decision.  These outcomes are possible, but there is reason to doubt each one will now happen.

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Brexit and Conservatism

5th July 2019

The Conservative Party has long been a mix of ideologues and pragmatists.

The pragmatic tradition was strong – associated with RA Butler and politics being the art of the possible.

Even Margaret Thatcher was far more pragmatic in policy – at least before 1987 – than her fans both at the time and since would admit.

But that pragmatic tradition seems to now be weak.

There are still a few sensible senior Conservatives, even Ministers, but they appear powerless in the face of shouty populism.

Applied to European Union matters, Tory pragmatists once wanted to make things work.

In the 1980s the (in my mind) second most significant Conservative politician of the time – Lord Cockfield – pushed forward the Single Market in a practical and sustainable way rather than through grand design and heady rhetoric. 

My January 2017 FT piece on Lord Cockfield is here. In it I said:

“In 1985, Cockfield (with the full support of the then commission president Jacques Delors) produced his famous white paper in a matter of weeks, and so sound and thought-through was its content that it was used as a blueprint thereafter. In 2016-17, the entire government has produced nothing other than platitudes and unconvincing excuses for secrecy.

“The UK may have had a Cockfield to put the single market in place, but it certainly does not have one to take the UK out of the EU.”

This is still the case, over two years later.

Brexit could have been done (regardless of the merits of the idea) but it needed a realistic and unideological approach.  

No silly speeches, no daft “red lines”, no loud promises of the impossible just so as to get claps and cheers from grinning idiots.

Instead, Brexit was done in perhaps the worst possible way.

How this came to happen will be a matter for debate and reflection long after the current events are over.

But one remarkable thing is how the Conservative Party which once valued unshowy pragmatism ended up so shallow and ineffective.

And another remarkable thing is that, three years after the referendum, Conservative MPs and members are set to elect as leader a politician who personifies the very shallowness and ineffectiveness of its Brexit policy.

Getting policy wrong is bad – but not learning any lessons whatsoever is arguably worse.

Many people reading this post will not be Conservatives (and may even have Very Strong Opinions on that party). 

But I am not (and this blog is not) party partisan: there are good and bad in most mainstream political parties.

My point is that it is sad and unfortunate that the political party which in a matter-of-fact way took the UK into the EEC, drove forward the Single Market, sponsored enlargement, and was a useful brake on the the heady excesses of the EU project, has become such a shambles.

The Conservative Party is no longer about the art of doing the possible, but about the artlessness of promising the impossible.

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The myth of “ruling out a No Deal Brexit”

4th July 2019

The ship of fools, depicted in a 1549 German woodcut

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There is a misleading and unhelpful phrase now in common use among politicians and pundits discussing Brexit.

The phrase is “ruling out a No Deal Brexit”.

Often you will read or hear that the House of Commons has ruled out a No Deal Brexit, or will rule out a No Deal Brexit, or should or should not rule out a No Deal Brexit.

The phrase is being used so casually that you would get the impression that the phrase was meaningful.

The phrase, however, shows a misunderstanding of the predicament that the United Kingdom is in.

A No Deal Brexit cannot be ruled out, at least not in isolation.

The House of Commons could vote against a No Deal Brexit, resolution after amendment and so on, until their faces are fully blue – and by those votes would have no effect.

A No Deal Brexit can be avoided, but only as a by-product of another positive act – acts which dare not speak their names.

The starting point, as most of you will know, is that the United Kingdom is set to leave the European Union without a withdrawal agreement by automatic operation of law on 31st October 2019.

That is the default position; nothing more needs to be done; the ball rolls off the table.

That default can be defeated only in three ways.

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One: that the current (or an amended) withdrawal agreement is approved by the UK Parliament and the European Parliament before 31st October 2019.

The problem with this is that the deal has already been rejected by historic majorities by the House of Commons, and there is no time and little inclination by the European Union to revise the current deal on offer.

A deal in place on 31st October 2019 is possible in theory, but there is little basis in reality (at the moment) to see it happening.

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Two: that there is a further extension to the Article 50 period.

This is the most likely in practice but – and this should never be discounted – it is not a matter of the United Kingdom Parliament.

An extension can only be given at the request of the departing member state and then with the unanimous consent of the remaining EU27.

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Three: revocation.

Strictly, this is the only one of the three ways that is in the gift of the United Kingdom.

A departing Member State can revoke the Article 50 revocation at any time before exit – according to the European Union Court of Justice.

This would certainly rule out a No Deal Brexit.

Indeed, it would rule out any Brexit – at least in the short to medium term.

A revocation has to bring the departure process to an end – not just stop the clock (although how this stipulation would be enforced in practice is another question).

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Unless one of these three means are adopted, it is impossible to “rule out” a No Deal Brexit, and only one of them is entirely within the control of the United Kingdom (though if the current deal was accepted, there is little doubt the European Parliament would also approve it).

So when you hear a politician or pundit assert that a No Deal Brexit must be “ruled out”, there is one simple question.

How?

**

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