Post-vote analysis: What next for Brexit?

16 January 2019

Chair of the Bar Council's Brexit Working Group, Hugh Mercer QC, explains the options for the UK following Parliament's rejection of the Prime Minister's Brexit deal yesterday.

He said: "The Parliamentary vote was often presented as a binary choice between the Prime Minister's deal and no deal, but it was never going to be that straightforward. The Supreme Court judgment inMillermeans that completing the process of leaving the EU will require primary legislation passed by a majority of the House of Commons.

"Now that the Prime Minister's deal has been rejected, she must come back to Parliament within the next three days with a new plan of action. Parliament will have the opportunity to amend those proposals so, under section 13 of the European Withdrawal Act, MPs can indicate their preference for an alternative deal or, eventually, give instructions to the Government as to how it should proceed.

"This is why the door is now more open to a range of other options beyond the Prime Minister's 'deal or no deal'.  Those options include substituting the Political Declaration for a Canada plus style arrangement, a Norway plus deal with the UK becoming an EFTA member or, conceivably, in light of the CJEUWightmanruling, unilateral revocation of the Article 50 notice itself. Those options have different implementation risks with knock on effects for certainty as any new proposals will need to pass a majority in Parliament and some will also need negotiation and ratification with the EU27 and/or the EEA members.

"All of this will no doubt lead to greater scrutiny of the underlying merits of those options by reference to the Government's own negotiating red lines, the wider economy and other considerations in the national interest. The Government's withdrawal agreement itself has already blurred the red lines in a number of areas, most strikingly on the jurisdiction of the ECJ over EU citizens in the UK and aligning the UK with the rules of the internal market. It remains to be seen whether Parliament will come down in favour of wider trade in goods and or services through closer regulatory coordination, or indicate a preference for greater independence." 


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