Miller: How the Article 50 Bill will play out in Parliament

NOTE: This post is an update of an earlier post, taking account of Tuesday’s Supreme Court decision.

Today (Tuesday) the Supreme Court delivered its judgment in Miller & Dos Santos v Secretary of State for Exiting the European Union. Its main finding is clear, holding by a majority of 8 to 3 that an Act of Parliament is required in order for the Government to invoke Art 50. The Government has announced that the necessary Bill will be introduced into Parliament (called in this post the ‘Article 50 Bill’) within days (some political correspondents are suggesting Thursday). Apparently, the Government has cleared the next week’s legislative business allowing time for the Article 50 Bill to be debated in the House of Commons. This post looks at the issues surrounding Parliament passing the Article 50 Bill, the issue how Parliament may amend the Art 50 Bill will be discussed in a later post.

 

THE HOUSE OF COMMONS

The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit. Certainly, in the House of Commons, those parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process, with opposition to Brexit dissolving since the referendum in June. While the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a non-binding motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved Brexit in principle. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against the Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that the Article 50 Bill will pass the Commons.

THE HOUSE OF LORDS

The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, making passing any legislation a more difficult task. For example, the Government suffers defeats on amendments relatively frequently (for example on fifteen occasions since May 2016).

One protection is that, on the face of it, the Article 50 Bill will be covered by the Salisbury Convention. Under this constitutional convention, any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate. As the Conservative manifesto clearly indicated that a Conservative Government would respect and implement the result of the referendum, in this sense the Article 50 Bill is covered.

Alternatively, it could be open to peers to take the view that the Salisbury Convention is not engaged. This would mean that they would be constitutionally entitled to block the Article 50 Bill. This is because the Government’s intention is to take the UK out of the single market. Yet Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. On the basis that a notification under Article 50 is irrevocable, peers could take the view that the Article 50 Bill will set in train a set of events with the only destination being that the UK leaves the Single Market. Either negotiations are concluded with the UK leaving the Single Market to enjoy some form of relationship with the Customs Union (as Theresa May indicated last week) or, no agreement is reached within the two-year period, meaning that the EU Treaties cease to apply to the UK (Article 50 (3)). In this instance, the UK would leave the Single Market and fall back on WTO rules. The Conservative manifesto covers neither of these possibilities.

Resolving this argument requires considering other, broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block the Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.

It’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend the Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, risking the important role it currently plays in the legislative process as a ‘revising chamber’. Regardless, this would all be a pyrrhic victory as the Government could prevail through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.

AN EARLY GENERAL ELECTION?

A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.

BE CAREFUL WHAT YOU WISH FOR?

Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with the Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.

Preview on Miller – An Article 50 Bill? – Parliamentary Fun & Games

This week, the Prime Minister, Theresa May, has unveiled her twelve-point plan for Brexit as March 31st, her self-imposed deadline for invoking Article 50, draws ever closer. Yet, constitutionally there may be two hurdles to clear before invoking Article 50. These hurdles are only “maybes” because it depends on the decision of the Supreme Court in Miller & Dos Santos v Secretary of State for Exiting the European Union. The Supreme Court has announced that judgment will be handed down on 24th January at 9:30 am.

This post considers the main point in the Miller case, that, for the Government to invoke Article 50, an Act of Parliament granting the Government the legal authority to do so is required. There are other points, including what has become known as the “devolution issue”, that consent of the devolved legislatures is required to invoke Article 50. Miller also has the potential to raise other profound points of constitutional law, but this depends on the approach that the Supreme Court decides to take.

THE HOUSE OF COMMONS

In my view, it is highly likely that the Supreme Court holds that an Act of Parliament is required for the government to invoke Article 50. The Government has already made clear that, if necessary, they will introduce a Bill into Parliament (called in this post the ‘Article 50 Bill’) soon after the Supreme Court’s decision. The Government’s intention is for this Bill to be as short as possible, to protect it against amendments by parliamentarians wanting to make a last-ditch attempt to block Brexit.

Certainly, in the House of Commons, such parliamentarians are unlikely to prevail. It’s clear that the parliamentary politics has moved more quickly than the legal process. When the Supreme Court was hearing Miller case, the House of Commons overwhelmingly approved a motion (by 461 votes to 89), that “calls on the Government to invoke Article 50 by 31 March 2017”. This highlights how the House of Commons as a whole has already approved the principle of Brexit. This is despite the SNP and as many as 60 Labour MPs (possibly defying their party whip) indicating that they will vote against an Article 50 Bill. With estimates showing that around 75% of English and Welsh MPs represent constituencies that voted to leave, the parliamentary arithmetic is clear that any Article 50 Bill will pass the Commons.

THE HOUSE OF LORDS

The House of Lords is likely to be more difficult. At a basic level, the House of Lords were more strongly in favour of remaining in the EU than their elected counterparts in the Commons. Also, the Government lacks a majority in the Lords, which makes passing any legislation more difficult with the Government suffering defeats on amendments relatively frequently (for example on fifteen occasions since May 2016)

Constitutionally, their Lordships may be emboldened by the knowledge that any Article 50 Bill will now lead to the UK leaving the Single Market. This is because there is now a stronger argument that an Article 50 Bill does not benefit from the Salisbury Convention. This is a constitutional convention which means that any legislation that implements a manifesto commitment of the Government is granted a second reading (i.e. approved in principle) and is ultimately passed by the Lords subject to their ability to amend the legislation. The theory behind this is that as the House of Lords are unelected, they should not obstruct legislation for which the Government can claim a mandate, for it has been “approved” by the electorate.

The issue is that the Salisbury Convention may not apply to an Article 50 Bill because the Conservative manifesto at the 2015 General Election stated, “We are clear about what we want from Europe. We say: yes to the Single Market” (p 72) and “we benefit from the Single Market… [and] will not let the integration of the Eurozone jeopardise the integrity of the Single Market or in any way disadvantage the UK” (p 73). The tone of the relevant section of the manifesto was to commit to a referendum, and respect the outcome, but that the Conservatives support the UK’s membership of the Single Market. From this, it is far from clear that the Government has a manifesto commitment to take the UK out of the Single Market. This may be enough for some peers to feel that they are constitutionally entitled to block any Article 50 Bill.

To take such a view would be to the exclusion of other broader constitutional principles. Notably, the referendum itself and the role of direct democracy in the constitution. It should be remembered that the House of Lords also passed the legislation authorising the referendum. Many peers, aware of their unelected status, will not seek to impede the democratic process. It’s one thing for an elected MP to block an Article 50 Bill, in the face of the referendum result, as they remain accountable for their decisions at the next general election. However, this would be another thing entirely for an unelected peer to do. The House of Lords must try and reconcile the differences between their constitutional functions honed to give effect to representative democracy and develop principles in response to the more targeted sledgehammer of direct democracy.

oIt’s most likely that the House of Lords would recognise their limitations and yield to the mandate of the referendum while attempting to amend an Article 50 Bill. Should they seek to overreach their position, and go as far as blocking the Bill, the inevitable consequences would extreme and self-defeating. The future of the House of Lords in its present form would be placed under considerable pressure, placing at risk the important role that it plays in the legislative process as a ‘revising chamber’. This would all be a pyrrhic victory as the Government could prevail, in any event, through invoking Parliament Act procedure. The Government could introduce the Article 50 Bill a second time, which, if the Lords blocked it again, could still become law. The veto of the House of Lords is only suspensory, not absolute. The problem would be that this process takes a minimum of one year, which would wreck the Government’s schedule entirely.

AN EARLY GENERAL ELECTION?

A more likely solution is that the Government would seek a general election. The obstacle here is the Fixed-term Parliaments Act 2011. Section 1 states that a general election would be held (as indeed it was) in May 2015. Then the provisions of the Act kick in, the effect of which is that the next election is due in May 2020. A general election can only be held before then if 66% of MPs vote for it, or if Theresa May loses a vote of no confidence. Neither of these is likely to happen. Alternatively, the Government could introduce a bill to Parliament which would effectively reset the 2011 Act, by amending section 1 of the Act to a date of the Government’s choosing. For example, a date in March. While this would delay the Article 50 process, this is far quicker than using the Parliament Act. The Government would portray the House of Lords as being the cause of the need for the general election, and the unelected House of Lords could not possibly refuse this second bill and hope to retain any credibility.

BE CAREFUL WHAT YOU WISH FOR?

Should events become so extreme, the conclusion would only be self-defeating. Those seeking to block an Article 50 Bill would either be seeking to block Brexit or try to achieve a “soft Brexit” by placing pressure on the Government to change tack. As discussed above, the ultimate effect of any such efforts with an Article 50 Bill would be an early general election. Polls indicate that an early election would lead to a Conservative government with a far larger majority, emboldened by being elected on a manifesto to leave the Single Market. The current lack of clear democratic mandate and the Government’s small majority are tools which can be utilised to scrutinise and pressurise the Government as it negotiates with the EU. Further, given the inevitable concession by the Government that Parliament will vote on any exit deal, the Government’s small majority in the Commons will remain a consideration throughout the negotiation process. For those concerned about Brexit, it is better to use the current questions over the legitimacy of the Government’s position as a tool of constraint rather than becoming the reason why the Government seeks to remove those constraints. Those concerned that Brexit may result in the UK’s slide towards a Singapore style economy need to understand that it could be their actions that make such an outcome more likely.

Article 50: Was the Government Really Divorced From Reality? Analysing the High Court’s Decision in Miller

This post considers the implications of the High Court’s decision in Miller that Parliament needs to grant the government the authority to invoke Art 50. The first post below discusses the High Court judgment itself, and the prospects of the government’s appeal being successful before the Supreme Court. A second post will follow shortly, which considers the political implications, should the Supreme Court not overturn the High Court’s decision.

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4355150_5a63142d“Flawed at this basic level” and “divorced from reality” are two of the most withering conclusions of the High Court in R (Miller) v Secretary of State for Exiting the European Union, on the government’s argument that Parliament’s authorisation is not required to invoke Article 50. There is no doubt that the decision is a spectacular defeat for the government’s legal team, headed by the Attorney General. However, the judgment has led to a hugely overblown reaction of sections of the media. This blog aims to show that the decision does not “block Brexit” in any way, but also that the judgment raises questions which can only be resolved by the Supreme Court.

What Was Decided?

The basic conclusion of the High Court is Parliament’s consent must be required to authorise invoking Art 50. This is because once invoked, Article 50 leads to a process that necessarily involves taking away rights which are part of UK law through to the European Communities Act 1972. This conclusion rests on a venerable constitutional principle, stemming from the Case of Proclamations in 1610, that the royal prerogative cannot be used to change any part of the common law or an Act of Parliament.

What should be clear from this, is that the High Court were deciding a legal question, namely what is the appropriate constitutional process by which the UK as a state invokes Article 50. It cannot be overemphasised enough that here is nothing in the judgment that “blocks Brexit”. The conclusion of the High Court is that Parliament needs to be involved in the process to invoke Article 50, most likely through passing legislation which authorises the government. As the royal prerogative is part of common law, it is for the courts to determine the legal relationship between the government and parliament and between common law and statute. Of course, this does raise the prospect that Parliament may not enact the necessary legislation. If that occurs it would not be The Lord Chief Justice, The Master of Rolls and Lord Justice Sales that have blocked Brexit, but those MPs or members of the House of Lords that voted against the legislation. The headlines in the Daily Mail, The Sun and The Telegraph, in particular, have been scurrilous, ridiculous and utterly ghastly.

Analysis of the Judgment

None of this is to say that the judgement is perfect. Far from it. The government has confirmed that it will appeal to the Supreme Court with the appeal expected to start on 7th December. A notable feature is that the appeal will be heard by an (as far as I know) unprecedented eleven-judge panel. The next question is how likely the government will succeed on appeal?

An initial reading of the High Court’s judgment raises some significant constitutional questions. Put simply; the High Court embarks on nothing short of a magical mystery tour of interpretation by concluding that Parliament intention when passing the European Communities Act 1972, was to pass that a “constitutional statute” of fundamental importance, some thirty years before this controversial idea emerged in Thorburn. Even if that is correct, the notion of a “constitutional statute” as traditionally understood, only protects it against implied repeal, meaning that the 1972 Act must be either repealed or amended expressly. This is nothing to do with using the prerogative to invoke Art 50.

Invoking Article 50 itself will not repeal or amend the 1972 Act (although further legislation will repeal the 1972 Act once negotiations have been concluded – as proposals for the Great Reform Bill show). The High Court then appears to extend this notion by finding that the royal prerogative cannot be used to remove the legal effect of a constitutional statute [para 88]. The idea of a constitutional statute is controversial amongst constitutional lawyers, and the High Court have extended the effect of constitutional statutes without any consideration of the debate of the underlying concept. Indeed, the Supreme Court declined the opportunity in the HS2 case to approve this idea expressly.

There is arguably one major flaw at the heart of the High Court’s reasoning. Connected to the finding that the 1972 Act is a constitutional statute is the conclusion that Parliament, in passing the 1972 Act is taken to have intended to limit the royal prerogative to conduct international affairs by requiring legislation to leave the EU. This can only be assumed because this intention cannot be found in any express language, nor can it be necessarily implied from reading the 1972 Act.

This assumption can be challenged. For example, John Finnis has made an analogy to double tax treaties, and how in 1972 Parliament was plainly aware that double tax treaties entered into by the government can have a great impact on UK law. It has long been understood that the government can (and on occasion has) unilaterally terminated a double tax treaty with another country without the requiring consent of Parliament. The parallel with Article 50 is clear, and there is little evidence that Parliament in 1972 intended to make any changes regarding the power of the royal prerogative.

Even if the High Court’s conclusion on this point is accepted, and Finnis’s point about double tax treaties is irrelevant, there remains a further difficulty about the assumption that Parliament is intended to have made. As stated above, this assumption is made despite a lack of express language or any necessary implication based on the language used in the 1972 Act to support such a conclusion. Yet, as Carl Gardner highlights in his excellent blog post, the High Court dismissed the government’s argument that the power to invoke Article 50 remained with the royal prerogative because there was no express language in the statute saying so. In short, the High Court concluded that Parliament can be assumed to limit prerogative powers, but cannot be assumed to have intended for the prerogative power to be retained.  Given that generally, the royal prerogative exists to the extent that it has been left untouched by Parliament or statute (and for this reason, is often referred to as that “residue of powers” still in the hands of the government), this seems at the very least logically unsound.

It’s intriguing that the High Court described the government’s argument on this point as being “flawed at this basic level” when surely the paradox just described above required far more discussion than can be found in the judgment. The Policy Exchange’s Judicial Power Project, have published further penetrating criticisms of the High Court’s decision with a series of posts available here.

A great irony is that while the judgment has been proclaimed as a great success for the power of Parliament and parliamentary sovereignty, the judiciary appear to be developing deeper principles of parliamentary intention. In this instance, the principles applied have sought to curtail the royal prerogative. However, last year in R (Evans) v Attorney General, the Supreme Court applied many of these principles with the effect of depriving sections of the Freedom of Information Act 2000 of almost all practical effect, despite the clear wording used by Parliament.

Another great irony is that the High Court relied on Dicey’s notions of parliamentary sovereignty when Dicey was one of the first influential figures to advocate using the referendums to resolve fundamental constitutional reasons within our parliamentary democracy. The High Court contains scant  discussion of the constitutional implications of the referendum itself. While the court is there to resolve the legal arguments, the British constitution remains a peculiar mixture of law and politics, and the solution of legal issues must include an account of their political context. Lord Bingham’s judgment in R (Attorney General) v Jackson is fine example of this, as he explained in detail the political context underlying the Parliament Act 1911. Finally, the judgment also made only a very brief attempt to reconcile their decision with the conclusion of the Northern Irish High Court in which stated that the royal prerogative could be used to invoke Art 50.

Will the European Court of Justice Get Involved?

When the case reaches the Supreme Court, an issue which could be reopened is whether a notification of an intention to withdraw from the EU under Article 50 can be revoked. The case in the High Court preceded on the basis that any notification could not be revoked. Yet, as Article 50 is silent on this point, this is at least arguable, and some opinion suggests that a notification under Article 50 is revocable.

If this is the case, then as the Lord Chief Justice stated during the hearing, it would “blow the claimants’ case out of the water”. As Article 50 itself is silent on this point, this is a matter of EU law which means that a conclusive answer can only be sought from the Court of Justice of the EU (commonly called the ECJ). There is an expedited procedure whereby the ECJ can hear a case in around three months. Of course, should a reference to the ECJ be made, the great irony would be that it is the EU’s court which would be effectively deciding how the UK will leave the EU.

Overall, this discussion shows that there are several hooks on which the government can base their appeal, and some of those give the government an opportunity to challenge the fundamentals of the High Court’s reasoning. The government may benefit from all eleven Supreme Court judges hearing the case, as it is possible that the more radical voices of Lord Neuberger and Lady Hale (as shown by judgments such as Evans) may be drowned out by more conservative voices such as Lord Sumption. Whether the government succeeds is uncertain, but a unanimous decision amongst all eleven is extremely unlikely.

Brexit – What Happens Next?

NOTE: This post was written at 5am on Friday morning, before Cameron announced his resignation.

Once again the polls were wrong, and the UK has voted to leave the EU. Obviously, the ramifications of this decision are enormous both in the short and long term. The immediate question is What Happens Next? There are several significant issues that need to be discussed.

Legal and Constitutional Issues

Firstly, the referendum has no direct legal effect. The UK will not leave the EU on Friday or Saturday or any time soon. Legally, the referendum is purely advisory, and in theory, the government and Parliament could ignore the result of the referendum and choose to do nothing.  However, neither the government or Parliament will do that, and this vote for Brexit will result in Brexit. The reason for this legal vacuum is to allow room for manoeuvre to establish the mechanics of the negotiations required to leave the EU. The only immediate impact is that the renegotiated terms of membership that Cameron managed to secure will not come into effect.

The mechanism for a Member State of the EU to leave is provided for by Article 50 of the Treaty on the European Union. This states, at Art 50 (2) that “A Member State which decides to withdraw shall notify the European Council of its intention”. There is then a two-year period for negotiations although this could be extended by agreement. The next European Council meeting will be held on 28th/29th June. The draft agenda provides for a discussion of the “Outcome of the UK referendum”, but provides no details as to the nature of that discussion. Art 50 is clear that it is up to the exiting Member State to invoke the procedure and start the clock ticking for the negotiations.

Before the referendum, David Cameron indicted that he would be invoke Art 50 quickly, stating

“If the British people vote to leave, there is only one way to bring that about, namely to trigger Article 50 of the Treaties and begin the process of exit, and the British people would rightly expect that to start straight away” [House of Commons, Hansard, 22nd February 2016, Col 24].

Yet, it would be extremely unwise to invoke the Art 50 procedure immediately. Instead, it would be better for the government to pause for a short time, establish a negotiating position and select lead negotiators before invoking Art 50. In turn, such a pause raises the question, persistent throughout the campaign, as to whether there could be a second attempt to renegotiate Britain’s terms of membership either before or instead of invoking Art 50. On Wednesday, Jean-Claude Juncker stated that “out is out” which appears to close down any such opportunity. In order for an orderly exit, the renegotiation should be concluded before any legal or constitutional changes are made in the UK, such as the repealing the European Communities Act 1972, which gives effect to EU law within the UK. Other possibilities such as using Art. 48 to agree a bilateral treaty between the EU and the UK are fanciful and not in Britain’s interest.

Another interesting feature is that the result shows that MPs with 2/3’s of all MPs supporting remain, the House of Commons is substantially out of line with the views of the electorate. This raises the question regarding the conduct of the negotiations and the role of Parliament in scrutinising the proposals and government’s stance. The default constitutional position for international treaties is that it would be up to the government to negotiate the terms of exit with no formal role for Parliament whilst negotiations of the terms of exit are ongoing. This is likely to be unsatisfactory for many MPs, particularly those supporting Brexit, and either votes within Parliament on the renegotiation will be promised as a result of political necessity, or legislation will be introduced securing parliamentary scrutiny over any treaty setting out the terms of Brexit. This may build upon the process outlined under the Constitutional Reform and Governance Act 2010, which grants Parliament a limited power of veto over an international treaty.

Political Considerations – Cameron’s Position

The political implications of Brexit are likely to be dramatic. Despite Cameron’s intentions to remain as Prime Minister, and to “implement the will of the British people”, it seems very difficult to reach any other conclusion than Cameron announcing his intention to resign very soon. This is because the referendum result can only be interpreted as a rejection of a fundamental aspect of Cameron’s economic, domestic and foreign policy. Furthermore, it is a specific rejection of Cameron’s terms of renegotiation, and consequently there will be a lack of confidence in Cameron’s ability to negotiate robust terms of exit. Yet, it must be emphasised that Cameron will be unlikely to leave Downing Street almost immediately, as the outgoing Prime Minister can only tender his resignation once it is clear they can advise the Queen as to who she will appoint in their place (Cabinet Manual, Para 2.10). Usually, this will require a leadership election which will take around 2/3 months. Consequently, any odds that Cameron will move out of Downing Street by the end of June (currently 3/1 with William Hill) are very poor value indeed.

Should Cameron decline to indicate his intention to resign or set out a timescale for his future, the long-stop position is a leadership contest triggered by Conservative backbench MPs through the 1922 Committee. To trigger a leadership contest, there needs to be fifty letters of no confidence in the Prime Minister lodged with the Graham Brady, the Chairman of the 1922 Committee. The number of letters currently lodged is apparently three, with letters from Philip Holborne, Nadine Dorris and Bill Cash already under lock and key with Mr Brady. Overnight, a letter signed by 84 MPs pro-Brexit Conservative MPs was published supporting Cameron whatever the result of the referendum. Whilst this may shore up the Prime Minster’s position for now, it is unlikely to alter the fundamental dynamics in the long term, given that the Prime Minister has indicated his intention not to seek a third term.

An Early General Election?

Watching the BBC, a question of depressing regularity is the whether there should be an early or ‘snap’ general election. Indeed, earlier this week, Jeremy Corbyn stated that Labour was ready for a ‘snap’ general election. This is not going to happen. Under the Fixed-term Parliaments Act 2011, the date of the next general election is 7th May 2020. It can be earlier, only if 66% of MPs vote for an early election, or the government loses a vote of no confidence and no alternative government is found within fourteen days. Neither of those possibilities are likely. A further possibility is that Parliament could repeal the 2011 Act, but this is also unlikely. The issue of an early General Election will be discussed in a later post.