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Analysis

Repeal Bill could rob voters of right to second referendum

by Hugo Dixon | 07.09.2017

The so-called Referendum Lock Act arguably gives the public the right to vote on any Brexit deal – and to stay in the EU if it doesn’t like it. Theresa May’s Repeal Bill, which Parliament starts debating today, would nix that right.

The European Union Act 2011, the official name for the Referendum Lock Act, requires a referendum before an amendment of the EU treaties can be ratified. David Cameron pushed through this legislation in one of his many attempts to pacify Tory eurosceptics. He wanted to reassure them that no powers could be transferred to the EU without the people’s express approval.

But the act actually requires a referendum if there is any treaty that amends or replaces the existing treaties. Some legal authorities, including Pavlos Eleftheriadis, an Oxford law professor, believe that the legislation was drafted so broadly that a referendum would almost certainly be required before the government could ratify a deal to quit the EU. Others legal authorities disagree. But, in any event, as things stand, the argument could be tested in court.

The fine print of the government’s Repeal Bill, though, would nix the Referendum Lock Act. Schedule 9 of the Bill lists this as one of a raft of acts that the legislation will repeal. What’s more, Clause 19 gives ministers the right to decide when they wish to axe it. They could, for example, get rid of it even before they know whether Parliament will approve the withdrawal agreement. And they could do so, even if the people clearly want a say on the Brexit terms.

Clause 19 is one of the so-called Henry VIII powers that give ministers the right to pass regulations when full acts of parliament would normally be required. It is particularly pernicious because, in this case, there would be no parliamentary scrutiny of the government’s actions. A minister could just scrub out the Referendum Lock Act with a stroke of his or her pen.

Most of the Bill’s Henry VIII powers give Parliament a limited right to approve or block ministerial regulations. Clause 19 isn’t even subject to this weak safeguard. Schedule 7 of the Bill which sets out how Parliament can scrutinise the proposed Henry VIII powers doesn’t mention Clause 19. A memorandum from the Department for Exiting the EU to the Delegated Powers and Regulatory Reform Committee explains there is “no procedure” for Parliament to vet Clause 19.

The combination of Clause 19 with Schedules 7 and 9 amounts to a power grab by ministers which could rob voters of what is arguably an existing right to a referendum on the Brexit terms. Parliament could, of course, restore this right if it wished. But it would be better if it wasn’t nixed in the first place.

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Edited by Luke Lythgoe

2 Responses to “Repeal Bill could rob voters of right to second referendum”

  • I have written before to ask if we might have a discussion about what will happen over Northern Ireland if the government decides to crash out without agreement.(no deal is better than a bad deal) Ireland would be thoughtlessly left in limbo which will greatly impress the DUP.

  • the argument outlined in the article is not a strong one . The 2011 Act had a clear purpose which was to deal uniquely with an increment to EU powers ; the author of the theory relies on reading the word ” replacement” in a sense that is contrary to the clear statutory intent to suggest that a second referendum on the terms of exit is legally necessary. it is very doubtful that any court would read a constitutional provision in such an artificial way.

    of course this is not to say that a second referendum is not necessary – or that the Bill currently before Parliament is not deeply flawed