The amendment prepared by MPs Peter Kyle and Phil Wilson offers a much-needed compromiseby Jolyon Maugham / February 19, 2019 / Leave a comment
Photo: NurPhoto/SIPA USA/PA Images Whilst studying law at university I spent a week with a district judge, learning what law looks like on the ground. What I remember, almost three decades on, is his description of his role: to send both sides away unhappy. So it is with Brexit; we can’t all get what we want. If we are genuinely interested in finding a way to put the country back together we need everyone to swallow what looks like compromise. In that spirit, this amendment—from Peter Kyle MP and Phil Wilson MP—deserves serious consideration. The idea is simple. Remain-supporting MPs would hold their noses and vote through Theresa May’s deal if Leave-supporting MPs hold theirs in turn and put the deal back to the public. It would deliver on the promises made by a number of prominent Brexiters about a two-stage referendum. And it would enable MPs to return with something to offer to all of their constituents, Leave- and Remain-voting. And, of course, they would be free to campaign for their preferred outcome in that public vote. Remarkably, the structure of the European Union (Withdrawal) Act 2018 makes this outcome relatively easy to deliver. It’s a little appreciated feature of the legal landscape that to avoid no-deal two things need to happen. The first is that the withdrawal agreement would need to be approved by a resolution of the House of Commons. And the second is that an act of parliament would need to be passed implementing that withdrawal agreement. Unless both things happen then—leaving aside a simple revocation of the Article 50 notice—we leave without a deal. It’s this structure that makes it straightforward to meet the concern—expressed by some, including at least one opposition front bencher—that May would offer MPs the prospect of a public vote in order to secure their approval for her deal and then, once the deal had been approved, renege upon the offer. Section 13(1)(d) of the European Union (Withdrawal) Act 2018 states that to avoid no-deal there would also need to be legislation implementing the approval of the prime minister’s deal. If the prime minister sought to withdraw her promise to put the withdrawal agreement to the public, if the draft legislation she put forward implementing their approval did not enact a public vote on that deal, then MPs could vote that legislation down. It would only be if the draft legislation met her promise that MPs would vote to adopt it. They could have absolute confidence that the prime minister would have to meet her promise.