Always read the small print - it's how we might get a Brexit deal referendum
This article first appeared as part of my weekly column for the New European. I recommend you read it on their website, but the full text can be found below as well.
A little-known and little-noticed provision in the European Withdrawal Bill could be the key to triggering a referendum on any Brexit deal, writes ANDREW ADONIS
Always read the small print. The monstrous EU Withdrawal Bill, meandering slowly through the Lords, contains a provision which virtually no-one noticed until a few weeks ago. In an apparently anodyne clause on ‘consequential changes’ it repeals the European Union Act 2011.
No-one noticed this in the House of Commons and it wasn’t even debated. Even you, O Highly Informed Reader of the New European, may not be aware of the contents of the world-famous European Union Act 2011.
The Act turns out to be the legislation enacted by the Cameron coalition to require a referendum for all future EU treaties which grant extra powers to Brussels. It was the price the Economic Ruin Group – sorry the European Reform Group of rabid Tory Europhobes – extracted from Cameron after his refusal to hold a straight in-out referendum when he took power in 2010.
This Act was soon superseded by his 2013 Bloomberg speech, which pledged an in-out referendum. The rest, as they say, is history and the 2011 Act was forgotten.
Except that history hasn’t finished. Some of us are trying to rewrite the last chapter, the one where Brexit happens on March 29 next year. Rewriting the current EU Withdrawal Bill to remove the repeal of the 2011 Act may play a key part in doing so.
The lawyers are divided – whenever were they not? – on whether the 2011 Act would oblige a referendum on Mrs May’s Brexit Treaty, which hits parliament at the end of this year. It all depends on whether you can plausibly argue that it hands new powers to Brussels. On the face of it, this won’t be hard, since provisions for the ‘implementation phase’ in particular will involve a raft of complex treaty changes, many of which will hand such new powers, including the agreement to oversight by the European Court of Justice in respect of the safeguarded rights of the three million EU citizens resident in Britain.
This issue is about to be tested in the courts with a crowd-funded action against David Davis requiring him to call for such a referendum. A complicating factor is that we don’t have the Withdrawal Treaty. But since the government reached a binding agreement with Michel Barnier last December on many of its key elements – including the ECJ powers in respect of EU citizens – our lawyers are optimistic.
However, all depends upon the 2011 Act surviving. So I have put down an amendment in the Lords to cancel the repeal. There is a good chance this will carry, although there may not yet be a Lords majority for a straight referendum proposition, on the argument that such a major legal change should be agreed by the Commons, and they won’t get a chance to vote on it unless we send it back to them.
Battle is about to commence. In truth, it doesn’t at present matter whether the 2011 Act is serviceable, although it may in due course. The critical point is that it gets a big debate going now on a Brexit referendum. If we can stop repeal of the 2011 Act, it ignites a ticking referendum time bomb which could explode nicely at a later date.
Oh the irony! The 2011 Act is widely drawn precisely because Cash, Redwood, Davis and Rees-Mogg wanted to make it impossible to agree anything constructive in Brussels without their veto. They saw it as a staging post to the referendum to get us out completely, as it was. Maybe it will serve the same purpose in reverse.
The debates on the 2011 Act contain other hostages to fortune. Like Redwood calling for a ‘dual referendum’, with a second referendum on the terms of any renegotiation, because that was the only democratic course, given that people wouldn’t know the terms when they voted to start a withdrawal process.
Just the argument for the Brexit deal referendum we all want now.