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Since Article 50 was triggered, a no-deal Brexit has been the default

12 November 2017

2:57 PM

12 November 2017

2:57 PM

Jeremy Hunt has told Tory rebels that”if we don’t back Theresa May we will have no Brexit”. It echoes a point Paul Mason once made – a point that you hear quite often: there’s no chance of no deal on Brexit, because there is no parliamentary majority for no deal. It’s understandable, given recently chaos, to imagine that if things are falling apart then Brexit might be one of them. Lord Kerr, who helped draft the Article 50 withdrawal clause, said last week that “the Brexiters create the impression that… having sent in a letter on 29 March 2017 we must leave automatically on 29 March 2019 at the latest. That is not true.” 

Really? This ended up in the Supreme Court precisely because Article 50 did serve final notice that we’d be leaving by 29 March 2019 at the latest. Once that letter was sent, “no deal” became the default position: it’s a deal that needs special parliamentary approval. If there is no agreement on a deal, or a veto is wielded from Dublin or Wallonia, or Theresa May’s mutinous MPs refuse to back her, then out we go – relying on the WTO rules that govern our relationship with the US and 110 other countries.  It doesn’t matter what Lord Kerr thinks about what happens now. Article 50 has been activated, so Brexit is now automatic.

Just ask the Supreme Court. Its judgement was made on the basis that Article 50 is not conditional on a later vote, or on a parliamentary majority for any subsequent deal. Article 50 is the final say, which is why Theresa May needed to seek parliament’s approval. Was invoking Article 50 the same as taking us out? The Supreme Court argued that it was – therefore a vote was needed. So the process is now irreversible, and unconditional. Unless Parliament votes to ignore the referendum result and abandon Brexit, we’ll leave on 29 March.

That’s why I backed Gina Miller in her case against the government: her argument made sense. Invoking Article 50 wasn’t preparing to leave, it was leaving. And as such, it was a decision the Prime Minister did not have the authority to take on her own. If parliament voted to take us into the EU then only a parliamentary vote could reverse that decision.

I sometimes wonder if Paul Mason and others think that Brexit will be like Lords reform, which didn’t happen because parliament could not agree on how it should be done. Perhaps the Tory whips will be giving it “back Theresa, or no Brexit”. But that’s not what’s on the agenda. If there is no agreement on Brexit then a “no deal” outcome will go live at midnight Brussels time (or 11pm ours) on the 29th March 2019. 

Is there another interpretation out there? Is there a Gina Miller figure arguing that Article 50 did not, in fact, mean serving final notice to leave the EU, and that another vote will be needed for us to proceed to a no-deal scenario?  This is a question about UK parliamentary mechanics, rather than the rights and wrongs of no-deal. We’ll gladly give some space on Coffee House to anyone who wants to put forward the Paul Mason argument.

Update: Since first writing this blog on 12 November, I’ve been in contact with a few of the more vocal Twitter-dwelling lawyers offering them space on this blog to explain why any of the above is incorrect. No one taken up the offer yet. It remains open.


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