Anti-Brexit campaigners are poised to launch a second legal action against the government over Theresa May’s failure to offer parliament a binding vote on the deal she negotiates with the EU.
The Times understands that the group behind the successful Article 50 challenge may go back to court unless ministers drop their opposition to enshrine the agreement in primary legislation. The group includes Gina Miller, the businesswoman who secured a Supreme Court victory in January, forcing the government to consult parliament over triggering Brexit.
Ministers fear that giving MPs the opportunity to amend the agreement as the March 2019 deadline looms could derail the entire Brexit process.
A poll for The Times today finds that only 10 per cent of the public believe that leaving the EU without a deal on a future relationship would be good for Britain, though 35 per cent believe that such an outcome is likely.
Senior legal figures, including the former deputy president of the Supreme Court, believe that a challenge could be successful as it would be based on the same principles as the Article 50 case. “Without the explicit authorisation of parliament in legislation [the withdrawal agreement] is vulnerable,” Lord Hope of Craighead warned.
A source close to the original case said: “Unless parliament is given a binding vote in legislation on the withdrawal agreement then I would expect a number of challenges. The Article 50 case made clear that it is all about respecting parliament’s sovereignty.”
The government’s refusal to enshrine the withdrawal agreement in law will also be challenged next month when its EU withdrawal bill returns to the Commons. Ten Conservative MPs, including Dominic Grieve, the former attorney-general, have put their name to an amendment saying that Brexit must be “subject to the prior enactment of a statute by parliament approving the final terms of withdrawal”.
So far the government has only promised to give MPs and peers a straight vote on a final agreement. Such a vote, while binding, would be a choice between accepting the deal or leaving the EU with no deal at all. Ministers’ reluctance to offer MPs anything more is because of fears that parliament could seek to amend any legislation, jeopardising the whole process. One senior Whitehall source said: “The nightmare scenario is that a deal is pieced together and it then gets mauled by parliament.”
Nicky Morgan, chairwoman of the Treasury select committee, warned David Davis in the Commons that Tory rebels were “deadly serious”.
Steve Baker, the Brexit minister, yesterday suggested that the government might be preparing a climbdown. In evidence to the Brexit committee, he conceded for the first time that parliament would have to authorise any transition agreement in law.
Analysis
Leaving the European Union with no deal is seen as bad for Britain by most of the public, but many would support doing so in order to get the UK out on the current timescale (Anthony Wells writes).
In the latest YouGov poll, 57 per cent said it would be bad for Britain if it ended up leaving without an agreement and only 10 per cent felt it would be a good thing. Yet if Theresa May is unable to agree a deal within the two-year time frame, 32 per cent said that the government should go ahead and take Britain out.
If no deal had been reached by Brexit day, a majority of both those who voted Tory at the election and those who backed Leave in 2016 say that they would rather Britain left without an agreement rather than compromising with the EU or seeking to delay Britain’s departure.
Just over 40 per cent think it is unlikely that Britain will end up leaving the EU without a deal. Just over a third see it as likely.
Anthony Wells is research director at YouGov
