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The UK Parliament votes to support the Government's Brexit negotiating timetable

09.12.2016

Philippe Ruttley

Philippe Ruttley Head of EU and Competition Law

On 7 December 2016, the UK Parliament voted on two motions to support the Conservative Government’s timetable for Brexit negotiations, with the notice of withdrawal of the UK from the EU under Article 50 of the Treaty of Lisbon being delivered by the end of March 2017. Under Article 50, a withdrawing Member State has two years to conclude its negotiations for exit (unless the period is extended by the remaining EU Member States).

The two motions addressed two different issues. The first was a motion tabled by the opposition Labour Party requesting the Government to publish details of its Brexit objectives and noting that Parliament should be responsible “to properly scrutinise the Government”: this motion was passed by 448 against 75 (a majority of 373), with 126 MPs not voting. The second motion was tabled by the Government, and required Parliament to respect the timetable of triggering the Article 50 Brexit process by the end of March 2017: this motion was passed by 461 against 89 (a majority of 372), with 99 MPs not voting. The votes against the two motions were from Liberal Democrat, Scottish nationalist, and Welsh nationalist MPs.
 
The two motions (which are the product of a political deal between the Government and the Opposition, exchanging a commitment to greater transparency and information on the Government’s Brexit strategy in return for a commitment not to block or delay the March 2017 launch of Brexit negotiations) are not legally binding. They are nonetheless politically significant insofar as they indicate that a very large majority of MPs will not try to delay the Brexit process – whilst leaving unanswered a number of more important constitutional questions.
 

Effect of the Parliamentary motions on Brexit

Although the results of the Parliamentary motions are significant politically, they do not affect the outcome of the current legal challenge in the UK Supreme Court concerning the relationship and balance exercised during the Brexit negotiations between the Government’s executive (or “prerogative”) powers and the law-making powers of Parliament.
 
It is expected, given the original High Court judgment and the proceedings to date, that the Supreme Court will reject the Government’s appeal against the judgment, which ruled that the Government must receive Parliamentary approval for Article 50 negotiations in the form of an Act of Parliament. If the Supreme Court rules against the Government, this will require the Government to obtain the prior approval of both Houses of Parliament and of the devolved legislatures of Scotland, Wales, and Northern Ireland. It seems unlikely that approval for a “Brexit Act of Parliament” could be achieved in each of the four political institutions by March 2017 in time to meet the UK Government’s self-appointed timetable. Many constitutional experts estimate that this process would take around 12 months, making it unlikely that an Article 50 notice could be sent until early 2018.
 
If a delay occurs as a result of the need for an Act of Parliament to trigger Article 50, this has significant political and practical implications for the UK-EU negotiations. First, it would mean that the two-year Article 50 negotiation period would start in early 2018 and conclude in early 2020 – coinciding with the date for the next UK-wide general election, fixed (by Act of Parliament) at 7 May 2020. This would make it likely that the next general election would be fought over the terms of the UK-EU agreement for future relations – and the outcome of such an election is uncertain. The electorate could approve the UK-EU agreement by voting for a party proposing it (such as the Conservatives or UKIP); or they could vote in a different Government opposing the UK-EU agreement (made of any combination of the Labour, Liberal Democrat, Scottish Nationalist, and/or Green parties).
 
On the other hand, if the relevant assemblies in the UK constitutional system approve a “Brexit Act of Parliament” by March 2017, then the negotiations for the UK’s exit will start in March 2017 with the UK leaving the EU in April 2019.
 

An 18 months Brexit negotiation? 

On 6 December, Mr Michel Barnier, the designated Chief Negotiator for the European Commission in the Brexit process, announced that the EU would allow 18 months for the negotiations under Article 50, with 6 months left for obtaining the necessary approvals from the 27 EU Member States. It is considered likely that Mr Barnier’s announcement was made after consultation with the EU Council (the Institution that represents the Member States) and with the European Parliament.
 
If Article 50 is triggered in March 2017 as the UK Government wishes, then this would meant the negotiations with the EU27 would end by October 2018 and the UK would cease being an EU Member State by April 2019. This would avoid the potentially difficult situation that the UK, a departing Member State, would participate in the European Parliament elections scheduled for May 2019.
 
Another complicating factor in the Brexit process is that there are scheduled elections in Netherlands, France, and Germany (and possibly also in Italy) during 2017. If the October 2018 deadline is to be respected, the most difficult and controversial parts of the UK-EU Brexit negotiations would not be able to start until January 2018, thus many months into a two year Article 50 period triggered by the UK in March 2017. This would put great pressure on the UK’s negotiating position, giving it a mere 9 months to conclude its negotiations with the EU27.
 
In the meantime, we will continue to produce regular updates on the UK internal constitutional process towards triggering Article 50.

Article authors:

Philippe Ruttley

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