The prime minister wants to wriggle out of an existing law that could force her to get the public to greenlight whatever Brexit deal she manages to cut. But she won’t find it easy. Theresa May faces challenges in both the House of Lords and the courts.
The debate surrounds the European Union Act 2011, colloquially known as the “Referendum Lock Act”. This legislation, which was pushed through by David Cameron, is designed to avoid any transfer of powers to the EU unless the people give their approval in a referendum.
It now arguably applies to the exit deal that May is planning to agree with the EU. Of particular relevance is the transitional period – or what the prime minister misleadingly calls an “implementation” phase. During this, we will be required to follow the EU’s rules without a vote on them, turning us into a “vassal” state as Brexiter Jacob Rees-Mogg used to say.
This would seem to be precisely the sort of situation covered by the Referendum Lock Act. If so, the prime minister needs the people’s permission to sign up to such a transfer of power.
The government doesn’t accept the argument. It argues that its deal merely needs approval under the Constitutional Reform and Governance Act 2010, which doesn’t require any referendum. But, for good measure, it is also planning to repeal the Referendum Lock Act.
As part of the European Union Withdrawal Bill currently going through Parliament, the government wants to give ministers the right to scrap the Referendum Lock Act whenever they choose – without waiting for us to quit the EU or even going back to MPs to ask their permission.
Fight back in Parliament and courts
The fight back is starting in Parliament. Andrew Adonis, the Labour peer, has proposed an amendment to the European Union Withdrawal Bill removing from ministers the right to repeal the Referendum Lock Act. If this amendment is carried when it comes to the vote next month, it will then be up to MPs to decide whether to back it when the bill returns to the House of Commons in May.
Assuming Parliament denies May the right to get rid of this legislation, the question then becomes whether it really requires a referendum in these circumstances. That’s the subject of a legal challenge launched by Best for Britain, the campaigning group, over the weekend.
The government certainly has a case to answer. Pavlos Eleftheriadis, the Oxford Law professor, wrote an article for InFacts less than a month after the 2016 referendum arguing that a new plebiscite was already legally required to approve the Brexit deal – and that was before the government asked for a vassal state transition, which has made the case even stronger.
The parliamentary and legal challenges against May’s attempt to rob people of an existing right they arguably already have to vet her Brexit deal are important. But they are only part of the battle to ensure proper democratic oversight of Brexit.
As more facts emerge it is becoming clear we are going to get a Brexit very different from the one Boris Johnson promised two years ago. It will damage our public services, prosperity and our power. Whatever happens with the fight over the Referendum Lock Act, the people deserve the right to vote on the outcome of the Brexit talks – and to stay in the EU if they don’t like it.
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Edited by Luke Lythgoe
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