Two months in: why Brexit may never happen
Having a keen interest in politics, the EU referendum was something I was looking forward to seeing happen. It would be the most important vote of my life to date, and certainly for the past generation as well.
The referendum vote itself coincided with my graduation, so for the bulk of the day the vote sat merely in the background as robes, lunches and photos took the main stage for me. It was only in Oran Mor that night, with a gin and tonic in hand, that talk turned to the impending result and what the future might hold. Keeping an eye on our phones for the early results, we stumbled back to our flat to catch the main bulk of the referendum coverage. A group of us sat almost in silence as the vote came in. Plymouth, Rochdale, Middlesbrough, Newport declared their results — all voting Leave. Gloucester, Bournemouth, Wigan followed suit. As we were a group of ‘Remain’ supporters, it wasn’t looking great. As it ended up, London held out, as did Scotland (which was cause for subdued celebration, as that was where we were) and Northern Ireland. But it became apparent that those votes weren’t going to be enough; the bulk of England was voting to leave, and that was going to tip our choice out. After the final counts, 41 constituencies had voted to leave by 65% or more; nine constituencies by 70%. We retired to bed, beaten.
The coverage, of course, quickly turned into overdrive- what a revolutionary result, what an unexpected result. Farage (who had earlier in the night accepted defeat) gave a crowing speech, while Boris and Gove looked perhaps a little taken aback by the magnitude of what had happened. Commentators crowded the airwaves. Waking with a hangover, it was all a little overwhelming. The political consensus was that, despite the referendum being advisory and non-binding, the UK would be leaving the EU. No one could really agree upon what was coming next, apart from a glaring sense of uncertainty. The great unknown of ‘Leave.’ Prime Minister Cameron postponed triggering Article 50 of the Lisbon Treaty, leaving that as a welcome gift for whoever was to follow him in leadership.
With that, I left for my summer travels. With extremely limited access to the internet, my exposure to Brexit was curtailed. The only drabs of information that got through was the disastrous affair of Johnson and Gove’s ill fated love story that left May as the leadership favourite (and eventual winner). Returning home, what became clear was how little had changed over the seven weeks I had been away. While Farage and Gove, their work done, had melted into the background, little in the shape of concrete progress had taken form. It should be granted that, with the historical magnitude of being the first state to withdraw from the EU, the process was never going to be quick. But what came increasingly into focus was how unprepared the government was for the task; legal commentator David Allen Green even remarked that ‘more thought went into the referendum wording…than what would happen on a Leave vote by government.’ The sense of uncertainty prevailed.
The Government was forced to admit it had no trade negotiators ready to oversee the crucial restructuring of the UK’s economy and international trade agreements. The Department for Exiting the European Union was brought into existence, but has received international criticism for lacking the expertise, staff or plan for Brexit negotiations. Perhaps most notable was the need to rebut a Guardian piece that reported the department held formal meetings in Starbucks.
The relationship we were to have with the EU was still undecided. Should the UK follow the Canadian model? Perhaps not. The Swiss model? Or even the Hong Kong approach? While some Brexiteers wish to remain in the single market, this is impossible without accepting freedom of movement- a key issue of contention on the campaign trail. Nor may the UK pick and choose economic sectors for free trade.
And the question of when Article 50 of the Lisbon Treaty was to be triggered still hangs over us like an ominous cloud. While January 2017 was first suggested, it is now thought that, due to the current ‘chaotic’ government situation, this may be pushed even further on, perhaps into the autumn of 2017. The lack of haste to trigger Article 50, the process itself irreversible, is perhaps understandable given the apparent lack of preparation. Even so, two months after the vote, one would have imagined we would be further along in the Brexit process than we currently are now.
As we know, there cannot be a withdrawal from the EU without the triggering of Article 50 by the member state. As every day passes and no progress is made on what a post Brexit UK will look like or when we will withdraw (recently the cabinet went for a ‘brainstorming’ session), arguments that Article 50 will never be triggered become more credible. Indeed, in addition to the first hopeful media articles in the aftermath of the result, academic legal and political commentators are questioning whether the day will ever come. As established, the process of withdrawing hasn’t been as straightforward as Brexiteers hoped.
A significant obstacle Brexit faces is the legal process. As Paul Bowen notes in his recent article for Prospect magazine, we are now in uncharted legal territory. A fundamental difficulty lies in the procedure of Article 50 itself. The decision to withdraw from the EU must follow the state’s own ‘constitutional requirements’ to be lawful. Without a codified constitution, the constitutional requirements of the UK are a little unclear, but, while the government has the prerogative to make treaties, any new EU treaty must be ratified by parliament. Only acts of Parliament can give domestic effect to rights and obligations imposed by international treaties; this is parliamentary sovereignty. EU treaties are only given effect under domestic law because the 1972 European Communities Act was passed by parliament.
What is a lot less clear is how to break these treaties. Some politicians, such as Bernard Jenkin and Jacob Rees-Mogg, have argued the withdrawal process to be straightforward; some have suggested repealing the 1972 Act. Yet, argues Bowen, this would not be advisable; as a non-legal departure under international law, it would leave the UK in breach of its commitments until it left the EU. And with so much EU law linked to areas within the UK (such as immigration law and employment law), an abrupt repeal would be chaotic.
Government lawyers argue that it is up to the government to make or break treaties; that once the government has triggered the Article 50 process and a new treaty has been negotiated, parliament may repeal the 1972 Act and pass the new treaty, so meeting the ‘constitutional requirements’ of the UK. Yet this process, Bowen suggests, would render the 1972 Act a dead letter. Parliament would be stuck between the 1972 Act and the new treaty; and even if it chose to refuse to repeal the 1972 Act and reject the new treaty, the UK would still leave the EU. The UK would have left against the wishes of parliament, violating the principles of parliamentary sovereignty and, most importantly, would be contrary to the statutory framework that gives effect to EU law.
Thus, the argument is that it must be parliament that gives the authority for the UK to withdraw. Given that polling reveals that 70% of MPs support remaining part of the EU, you can understand why Brexiteers are keen to keep parliament out of the withdrawal process, arguing that the referendum provides a democratic mandate for the government to act without parliamentary authorisation. Yet, unlike the 2011 Act that authorised the referendum on the Alternative Vote, which explicitly stated that the government must implement the electoral system if chosen by a majority vote, the European Referendum Act 2015 does not bind the government; it is merely advisory. May is committed to withdrawing, and her wish to deny parliament a vote on Brexit is perhaps prudent if she believes that she could not win the vote. But this decision lands us in the difficult position of the UK’s withdrawal not fulfilling the constitutional requirements set out in Article 50. The UK’s parliamentary system requires that the MPs determine whether the UK leaves the EU and on what terms. Legal proceedings have begun which argue this point, that only a decision authorised by parliament will be valid, and that to circumvent parliament would be unlawful. Similar legal proceedings are also undergo in Northern Ireland, where the Good Friday Agreement remains a concern. It is feared that the government’s unclear position on the Irish border may undermine the peace process.
So while there exists political will on the behalf of the government to push through the will of 37% of the electorate (less than one third of the population), this is unmatched by Parliament, with even 50% of Conservative MPs in favour of remaining part of the EU. This impasse exposes a fundamental conflict at the heart of the Brexit process — while a majority of those who voted believes that it is in the UK’s best interest to leave the EU, our MPs, those representatives who we elect to make difficult and complicated decisions on our behalf, do not. And that is the inherent danger in using non-binding referenda, especially on issues as critical as this, in a parliamentary system. What happens when the electorate decides to differ from their MPs, the very ones the electorate trusts (albeit very slimly) to decide every other significant issue throughout the year and whose consent is a fundamental requirement to this withdrawal process? Should MPs defer to the result or should they vote with their conscience?
AC Grayling argues strongly in his latest article for the latter. MPs are not, he argues, mere mouthpieces for their constituents, but must seek to serve the best interests of the country as a whole. They must also, in our representative democracy, serve the interests of all their constituents, not merely those who voted for them. And this, Grayling claims, means that MPs, in acting in the interests of all, must sometimes not carry out the wishes of those who vote for them; they must see and act for the ‘larger benefit’. Understanding the referendum to be advisory and the result to be a sharp rebuke of the EU as it stands, MPs should then decide what is best for the UK. To do so, he concludes, is not merely their right as MPs but their duty. In this case, he argues, to vote to for the UK to remain a part of the EU.
Thus, MPs must make the difficult decision: do they accept the result of the referendum, deferring their role as representatives to the ‘will of the people’ or do they fulfil their ‘duty’ as MPs and vote for what they believe to be in the best interests of the country, even if that means voting against the result of the referendum? To do so would be to risk the wrath of large sections of the right-wing, Brexit-supporting press- a potentially politically toxic move. But, if you, like Grayling, believe that MPs have a duty, and are therefore compelled, to vote in their role as a democratically elected representative, you may think the risk is worth it.
What is clear from this, even if the process of Brexit as a whole is not, is that there are three large obstacles to the withdrawal process. Firstly, Theresa May’s government must come up with a credible and substantive plan, more than mere political will. It is not enough to say ‘Brexit means Brexit’, when Brexit itself is an abstract, directionless concept, still shrouded in uncertainty. Hopefully the brainstorming session has come up with something a little more profound, and the next seven weeks will be more fruitful than the last seven. We shall see. Secondly, there exists the fundamental constitutional requirements of Brexit; that for Brexit, in whatever form, to be lawful and resist the challenges currently going through the courts, parliament must authorise it. And thirdly, the fundamental question- can MPs be persuaded to vote for Brexit if, as is necessary, they are asked to vote? This will be wholly dependent upon the plan May and Co. can construct; one that adequately and persuasively addresses concerns over issues such as the single market, freedom of movement, the Irish border and Scottish opposition. Unless all three obstacles have been addressed, Article 50 will not be triggered and the UK will continue to remain a part of the EU.
Unlike on results night, I will not be holding my breath.
Originally posted on Affairs Today.
