Article 50 & The Rules Of The Game

Brexit is the one issue where Surge Politics does not currently apply, partly because the constitutional rules are badly understood and it is widely believed that the deal is done and once parliament had approved Article 50 and the negotiations began, leaving is inevitable. This is not so, but underpins the lack of movement in public opinion, which is still split down the middle. But there are some indicators that though the Tories have the impetus to continue toward a Hard Brexit, challenge is possible.

There have been no polls recently on Brexit though a Prospect Magazine poll in early autumn suggested that opinion was now 48% Leave 52% Remain – too slight a shift to make a difference.  So what could produce a major shift in public opinion? Poll data is short term and starts to decay as soon as published, so the fact that no polling was done in November is a problem But some polls done earlier are still useful.

There is some evidence that the government is not trusted. Polling published at the start of October,  done for BestforBritain (the Gina Miller group), on the credibility of the key players in the negotiation – May, Johnson and Davis – showed around half of voters thought Boris is motivated by his own interests and only 23% think May is primarily motivated by concern for the national interest. None of   the three  scored highly on putting the national interest first.

There was a different story where the May statement NO DEAL IS BETTER THAN A BAD DEAL  is concerned. Polling shortly after the PM made the statement showed  48% agreeing, only 17% thought a Bad Deal better than No Deal. At Start of October Sky data asked same Q, and a massive 74% thought no deal better than bad deal – but Q is what no deal means. Published on October 30th, the headline data leaves open the question of whether both Remainers and Leavers voted for No Deal. For Remainers this can mean not leaving, for Leavers leaving with a cut and run over the edge and far away position. More polling is needed.

The most important data is that produced by BRITAIN 4 EUROPE in its briefing for a National meeting on 2nd December. This states the following key findings:

1)  Divisions remain entrenched

2)  Soft  LEAVERS are fragmenting with some questioning their vote to Leave

3)  * Brexit is seen as irreversible*

4) Widespread concern at the complexity of the negotiations

5) Some ask that further scrutiny is needed.

The key fact about this poll is the third finding, now widely believed. Indeed, the Tory Brexit spokesman in the Lords said just that on 13th November – and then had to retract. But the story was not widely reported and needs to be better known – the status of Article 50 is going to become crucial in the months to come.

Lord Kerr had said that Article 50 is revocable. This has been used by Remain campaigners, so the Tory Lord Ridley asked  Lord Callanan (Minister of State  in the Department for exiting the European Union) the following question which gained a straight response – but withdrawn a week later.

House of Lords 13 11 17 Col 1845

Lord Ridley (Con) “Further to what my noble friend said about fixing the date of withdrawal… can he confirm that the judgement of the Supreme Court in the case brought by Gina Miller confirms in precise terms that article 50 is irreversible, in contrast to what the noble lord, Lord Kerr, has said?”

Lord Callanan: “I can confirm that. It is also stated by the European Commission that Article 50, once invoked, is irrevocable unless there is political agreement on it”.

Lord Elystan Morgan (Cross Bench)

“My Lords, does the minister agree that the notice given in March this year in relation to Article 50 was not a notice of withdrawal but a notice of intention to withdraw? Does he appreciate that our distinguished colleague, the noble Lord, Lord Kerr, and the vast mass of legal authority, are of the opinion, therefore, that such a notice can be withdrawn unilaterally….?

Lord Callanan, (Con)

 “My Lords, no, I will not confirm that, because it has been stated by  legal opinion on this side of the water and in the EU that Article 50 is not revocable. It all flies in the face of the results of the referendum…”


House of Lords 20 11 17

2.42 PM Announcement:

 Lord Callanan (Con)

“Last Monday …. I responded to a question from my noble friend Lord Ridley regarding the Supreme Court’s view on the revocability of Article 50. My response to my noble friend was incorrect… I am grateful to the noble Baroness, Lady Hayter, who highlighted my mistake…..I undertook to check the record… ad make it clear that the Supreme Court did not opine on the revocability of Article 50…

“…to reiterate… the Supreme Court proceeded in the Miller case on the basis that Article 50 would not be revoked but did not rule on the legal position regarding its revocability. It was, and remains, the government’s responsibility that our notification of Article 50 will not be withdrawn…..”


That  Lord Callanan did not know the constitutional position  is remarkable. It is well established that parliamentary sovereignty means that any law can be repealed. The role of European Law does not change this, and Lord Callanan is right in his opinion. However while parliamentary sovereignty is absolute, and the Tories have promised Parliament will have a vote on the Deal, they have also said that a vote against will be ignored as they are bound by the 2016 Referendum. Thus we have a situation where referendums dictate and parliament cannot overule a referendum. This now appears the constitutional position, so only a Third Referendum (the first was in 1975) can repeal Article 50. The first challenge is to tackle the illusion that this cannot be done – which Lord Callan never quite got round to saying on 20th November – and then win the battle for Referendum 3. That Article 50 can be repealed is clear. But it is a phyrric victory unless a Referendum can trigger the process of repeal. 


Trevor Fisher                                                                          

November 2017


  1. Geoff Fordham says:

    But the referendum was advisory so I’m not sure it’s correct to say that parliament can’t overrule the referendum.

    • Andy Howell says:

      I agree Geoff and I have differences with Trevor about this.

      A second referendum is the last thing we want. A second ref would be fought in exactly the same way as the first, there would be no great change in the way facts would be marshalled. And there is also the real danger that the last result could be confirmed.

      If Brexit collapses it will do so in the context of a General Election or in the first response to the collapse will be a General Election. And this is where my nervousness lies.

      It seems clear that Corbyn and McDonnell really don’t like Europe. I would never argue that he probably voted No, i think that is daft. But I suspect they would do a Norway.

      The collapse, if it comes, will be amidst growing economic chaos. Labour might have to be brave enough to see that it can’t be done.

      But a second referendum. Nonsense of the left chattering classes.

  2. John Hurley says:

    I think I agree with Andy. The events of the last few days have shown the Brexit position unravelling and the support of the DUP falling away. The most charitable explanation is that May got the nod for some form of post Brexit trade alignment for the whole of the uk which is of course anathema to the DUP and the head banging section of the Tory Party. Allied to this is the now manifest incompetance of May, Davis, Johnson and Fox and the lacklustre record of the soft brexiters in the Tory Party

    I think the most likely outcome will be a February election. (I correctly predicted the last one). I suspect this will come to revolve around whether we should just walk away from Europe or not. Which will leave Labour in a difficult position with its fudged messages. Cannot sit on the fence this time. However it could also tear the Tories apart. Labour with its muted messages is missing the opportunity to bring this government down with a vote of no confidence on government incompetence at this critical time which will allow the Tories to frame any election in their own terms.

    The outcome if the hard right were defeated might allow parliament to take its constitutional responsibilities seriously on the grounds that Brexit was misrepresented and is manifestly disadvantageous to Britain, revoking article 50, but Trevor is correct that the widespread acceptance that Britain has to go whatever the circumstances does seem to have taken root. It will require leadership and courage but I do not see any credible person in parliament to take on that role.

  3. After the dust settled on the commons vote and new data came out I wrote a reply, but the computer failed four times. So I will have to write a blog. Briefly, there is no light at the end of the tunnel but Farage;s move last week, after which I tore up my notes, confirm=s that the 3rd referendum (there have been two) is now live politics.

    more to follow

    Trevor Fisher

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