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NUMERO 24 - 19/12/2018

Brexit: Time for a Second Referendum?

A week is a long time in politics… A famous phrase in the UK, usually attributed to Prime Minister Harold Wilson in the mid-1960s, is that “a week is a long time in politics”. With its unwritten and therefore ‘flexible’ constitution, events in Westminster can notoriously move quite fast but after the recent Brexit related vicissitudes it is maybe time to alter the phrase from a week to an hour! Approximately seven days ago, the situation was that the Withdrawal Agreement reached by the EU and the UK (the so-called divorce settlement) was due to be voted on in the House of Commons on 11 December 2018, in accordance with sections 11 and 13 of the European Union (Withdrawal) Act 2018. The presence of the Northern Irish Backstop in that Agreement was so unpopular with many different Brexit factions in the House of Commons, that it is thought that the Prime Minister, Theresa May, was briefed by the Whips, who organise voting in the House on party lines, that she would lose this vote by such a large margin that the loss may be considered to equate to a loss of confidence in the Government. To avoid this, on Monday the Prime Minister postponed the vote. On the same day, the European Court of Justice held in C-621/18 Wightman and Others v Secretary of State for Exiting the European Union that Article 50 TEU allows the unilateral revocation of the notification of the intention to withdraw from the EU. A revocation will be possible until such time as a withdrawal agreement has entered into force, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements and is formally notified to the European Council. This must however also be done within the two-year time frame stipulated in that Article, unless this period is extended.  The Prime Minister spent Tuesday the 11th of December travelling around the EU trying to obtain legally binding ‘reassurances’ and ‘clarification’ short of renegotiation, relating to the Northern Irish Backstop. Whilst Mrs May was away, all eyes were on the Opposition Labour Party, to potentially table a vote of no confidence in the Government because they postponed the vote on the Withdrawal Agreement. Doing so would have the potential to lead to a general election under the Fixed Term Parliaments Act 2011. The Opposition has not done this (at least by the time of writing). Instead, the Conservative Party triggered a vote of no confidence in the Prime Minister, Theresa May. In the UK constitution, there is a distinction between Tory party rules on confidence votes and Parliamentary confidence votes. The vote, which occurred on Wednesday evening, was within the Tory party, not Parliament. It is therefore a confidence vote in the PM as Tory Leader, not in the Government in the House of Commons. Party confidence votes don’t trigger general elections. As Theresa May won the Tory party vote by 200 votes to 117, she not only survives to stay in office, but according to the party’s rules, no other confidence votes can be held for at least a year. Theresa May therefore remains the leader of the Tory party until after ‘Brexit Day’ on 29 March 2019. After yet another unsuccessful trip to Brussels, the Prime Minister has eventually set a new date for the vote on the EU-UK Withdrawal Agreement: the week of the 14 January 2019. Nonetheless, as we write, there is currently no sign of abatement of the political impasse in the House of Commons and in Government. It is consequently suggested that one way to breach the political logjam in Parliament would be to hold another referendum… (segue)

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