Exiting Brexit

tl;dr: ain't gonna happen

I see that people are talking about stopping Brexit again.

I don’t want to discuss whether stopping Brexit would be desirable. I do, however, want to point out that it is very, very unlikely given the legal and political situation as it stands.

My position can be summarised as follows:

In order to put some flesh on this rather skeletal statement, it’s helpful to begin by considering the legal situation. That’s not because the legal situation determines the outcome. Indeed, the EU has often been very good in making legal requirements compatible with political demands. The legal situation does, however, constrain and shape the outcome. By listing the legal requirements, we can better understand how the politics of stopping Brexit would have to work.

The legal situation

In order for Brexit not to happen, the UK would have to withdraw notification of its intent to leave the EU under Article 50 of the Treaty on the European Union.

It is not clear whether the UK can withdraw notification. The parties in the Miller litigation proceeded upon the basis that notification was irrevocable. This does not mean that notification is in fact irrevocable, merely that it was politic to proceed upon this assumption.

We probably can withdraw notification, but it’s not clear. If matters of EU law are not clear, then there is an obligation on national courts to refer issues to the Court of Justice of the European Union. That takes time and makes the politics of withdrawal more complicated.

If the UK can withdraw notification, it is not clear whether it can withdraw notification unilaterally. The Commission believes that unilateral withdrawal is not possible. Some legal experts disagree.

If the UK could only withdraw notification with the consent of the EU27, then it is not clear whether withdrawal of notification would come at a price — for example, the loss of certain opt-outs or rebates.

Suppose then that the UK government approached the EU27 and asked them to consider withdrawal, and suppose further that the EU27 indicated that they would be minded to accept withdrawal and a return to the status quo ex ante. Under what conditions could the UK government withdraw that notice?

It is not clear as a matter of law alone whether the government could withdraw notification without involving Parliament. Parliament gave the Prime Minister the power to notify the EU of the UK’s intention to leave. It may be that, on the proper reading of the European Union (Notification of Withdrawal) Act, giving the Prime Minister the power to notify implies a correlative power to withdraw notification.

The political situation

It is clear as a matter of politics that withdrawal of notification could only happen with Parliament’s approval. It is not clear whether that would have to take the form of an Act of Parliament, or whether a simple vote following a debate would do the job. If it really were just reversion to the status quo ex ante, then the situation would be simpler.

If withdrawal came at the price of losing certain opt-outs, then withdrawal would presumably require an Act of Parliament under the European Union Act of 2011.

Where withdrawal would require an Act of Parliament, then realistically only the government could begin the withdrawal process. Where withdrawal does not require an Act of Parliament, it would still be far more likely to succeed if the government were behind it.

I won’t consider here what would need to happen for an Act of Parliament to be passed. I will just note that it took two months from the UK Supreme Court’s decision in Miller to the enactment of the European Union (Notification of Withdrawal Act). That means that any Act would have to be introduced by January 2019 at the very latest.

It’s very hard to imagine the government tabling such a resolution by January 2019 (which is presumably the very latest date at which such a resolution could be tabled). By tabling such a resolution, the government would go against the basis of its agreement with the DUP (which promised “to support the government on legislation pertaining to the United Kingdom’s exit from the European Union”), and would go against the Conservative manifesto (which promised Brexit, albeit a “smooth and orderly one”).

In order to stop Brexit through this means, the government would have to bring about its own demise. On the turkeys-don’t-vote-for-Christmas principle, I consider that unlikely.

An opposition motion?

Could the opposition decide to table such a Stop Brexit resolution? This would require the position of the Labour party to change. The position of the Labour party has already changed with respect to transitional arrangements, but this change is not very great. It seems unlikely that the party’s position would change enough (and quickly enough) to table a resolution in any 2018/19 parliamentary session.

It’s sometimes suggested that the Labour party’s position on Brexit is soft, and that it will adopt the softest position consistent with public opinion. If public opinion were to change rapidly, this might induce a change in Labour’s position. But rapid change in public opinion is also unlikely on the basis of the evidence so far.

What UK Thinks has collated 42 polls asking the question:

In hindsight, do you think Britain was right or wrong to vote to leave the EU?

Averaging across these polls (fielded at different points between June 2016 and now), 45% of people think it was right, 43.4% think it was wrong, and the remainder don’t know. That’s a pro-leave gap of 1.6%.

These figures have changed over time. There has been a very slight trend for the difference between right and wrong to narrow.

If we assume a simple linear trend, and ignore uncertainty in measurement, then the gap has shrunk by around one fifth of one percentage point per month, a rate which is statistically significant.

(Ignoring uncertainty in measurement means that the slope might be diluted, but it also makes it easier to find a statistically significant decline. A more careful analysis would probably allow for either a much steeper or an entirely flat slope).

By way of comparison, public opinion in favour of Scottish independence rose by twelve points over nineteen months prior to the referendum (almost two thirds of a percentage point per month), and support for the war in Iraq fell by seventeen points in the thirteen months following the invasion (almost one and one-third percentage points per month).

If we are prepared to extrapolate on the basis of this linear trend (and opinion might well change in different ways), then by January 1st 2019, then there will be a pro-remain gap of almost 3%. If the number of don't knows remains the same, that might mean that 46% think it was wrong, 43% right.

I have heard it said that staying in would be politically feasible if polls consistently showed that 60% of people wanted to Remain. On the basis of the trend I’ve identified, we wouldn’t be anywhere near that position by January 2019. I should add that this analysis, which uses the "hindsight" question, represents the best case scenario for stopping Brexit, since many people think that Brexit is wrong but should still go ahead in order to respect the result of the referendum.

In order to stop Brexit, Labour would probably have to lead rather than follow public opinion, under a leader who has thus far shown no inclination to campaign strongly for continued UK membership of the EU.

Even if Labour were prepared to change their position on Brexit, and table a resolution to stop Brexit, they would still need that resolution to pass. Even if we are prepared to assume that all MPs from Labour, the Liberal Democrats, the SNP, Plaid Cymru, and the Greens would vote in favour of this motion, there would still need to be a significant rebellion on the Conservative side. This rebellion would be significant not just numerically: the consequence of the resolution passing would very likely be the collapse of the government.

Conclusion

Stopping Brexit would either require:

• a fair bit of jiggery-pokery and goodwill from the rEU
• a significant number of Conservative MPs bringing a Conservative government down
• a dramatic change of heart on the part of Labour
• and probably dramatic changes of public opinion of the kind which we saw regarding the war in Iraq and Scottish independence, but have not yet seen following the referendum.

All of these things are unlikely individually, and even less likely collectively (beware of the conjunction fallacy!).

As with many things related to Brexit, there is simply not enough time for these things to happen by the end of 2018/start of 2019. There are good arguments to suggest that any attempt to stop Brexit would probably have to be completed much earlier (in time for a November 2018 Council), and so here again I have tried to give the most generous possible interpretation.

You might well think that it is right for people to campaign for things that look politically impossible. Yet given the pressing Brexit timetable, I worry that attempting to stop Brexit merely detracts from finding the best possible mode of exit.