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Article 50 isn’t the main parliamentary battleground

by Nick Kent | 19.10.2016

Last Wednesday’s House of Commons debate on parliamentary scrutiny of the Brexit process showed that MPs are not prepared to accept the Government forcing Brexit through without a vote in Parliament. But that is not where the real parliamentary battle will be fought. Rather, it will be over the Government’s intention to repeal the European Communities Act 1972 before the UK has agreed the terms for its EU departure.

The 1972 Act, the legal document for the UK’s accession to the European Communities, provides the mechanism for implementing EU laws in the UK. It also makes the European Court of Justice’s judgments enforceable here. It is a symbol of our EU membership and, for many Brexiteers, a hated one. But repealing the Act before Parliament has even heard the terms of the UK’s departure, let alone what trading and other arrangements we might have with the EU in future, would drastically reduce Parliament’s ability to challenge those Brexit terms.

Whether the Remainers are comfortable or not, the majority of MPs have accepted the referendum outcome. Nonetheless, many MPs point out the referendum was not a decision on what would follow. Most MPs would either vote for Article 50 or abstain; few would be prepared to vote against. However, repealing the European Communities Act would give the Government a blank cheque before negotiations with the rest of the EU have started. Without any guarantees as to what the Government will secure from those negotiations, repealing the Act could put at risk some of the things some MPs say their constituents want to keep, such as easy access to the single market or employment and gender equality rights.

Once Parliament has agreed to repeal the Act, implementing Brexit would only require a statutory instrument – a type of secondary law that requires (at most) a single vote in Parliament. The House of Lords is likely to have particular concerns as it rarely rejects statutory instruments. Some argue it is a convention that the Lords should not do so.

For Labour MPs, the repeal bill is an opportunity. They can abstain on, or even vote for, the triggering of Article 50 and still oppose the repeal bill because it would not necessarily stop Brexit but would deny the Government the chance to push Brexit through with minimal parliamentary scrutiny. The Scottish National Party has already declared it will vote against the repeal bill; we can expect other parties to follow.

The Government may well find it was easier to make the promise to repeal the Act than to deliver on that promise.

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Edited by Yojana Sharma

Tags: , Categories: Articles, Sovereignty

3 Responses to “Article 50 isn’t the main parliamentary battleground”

  • Crass hypocrisy! Can someone explain to me why the extra runway at either Heathrow or Gatwick is worthy of parliamentary debate when our relationship with the EU isn’t?

  • Nick Kent may well be right that a majority of MPs would support the Government on a vote to trigger Article 50. But the threat not to do so until after Parliament has debated and voted both on the government’s proposed terms and debated and voted on the Great Repeal Bill surely puts a powerful weapon in the hands of those pushing for it.
    Given too that the court is assuming that an application under Article 50 is irreversible, a ruling against the Government would presumably stipulate that Article 50 can’t be triggered until after these debates/votes have taken place, otherwise how are MPs to know what they are letting the country in for?