Can UK exit from the EU still be avoided? More arguments for saying it can
In a comment on my earlier post, ‘ObiterJ’ has helpfully drawn attention to an article by the philosopher and commentator Professor A C Grayling in which he states forcefully the legal and constitutional case for parliament to reverse the verdict of the (advisory only) EU referendum. This is clearly helpful if the calamity of Brexit is even now to be averted. But however strong the professor’s legal argument may be, and it is very strong indeed, I can see many MPs and peers being afraid to act on it because on its own it will be misrepresented as an unacceptably arrogant act by the élitist establishment claiming to know better than the millions of people who voted to Leave — a million or so more than those who voted to Remain — and a flagrant breach of party leaders’ promises to respect the result of the referendum.
I believe however that it can also (not instead) be justified on other and much more persuasive grounds as a necessary opportunity for the British people to give their opinion, at the appropriate moment and in the most appropriate way, on whether the terms of our exit from the EU and above all whether the terms of our future relationship with the EU, when these are sufficiently clear and known, are acceptable or not. It would have to be made clear that if these terms are rejected by popular vote, the UK will remain a member of the EU on the same terms as before but able to seek changes and reforms from within. If the terms were to be accepted by popular vote, parliament could be expected (but still not constitutionally obliged) to go ahead and approve them and the UK would leave the EU on those terms.
It could be properly stressed that this would not be a case of “a second referendum” held in the hope that the electorate would change its mind. The 23 June referendum result will have been respected by the discussion with our EU partners of the terms of Brexit and of future relations with the EU. The question put to the electorate now would be quite different: “These are the best terms we can hope to get: do you wish to accept them, yes or no?” Asking the people to decide whether or not to approve the terms can hardly be called undemocratic, nor a betrayal of the Brexiteer voters in June.
Finally, the choice would almost certainly have to be made in a general election, not in a second referendum.
The LibDems have already come out loud and clear in favour of allowing parliament to decide whether to proceed with Brexit or not. Good for them. But this seems unlikely to run unless in the form of a further popular consultation on the terms. And for that to be an option, invoking Article 50 must be deferred until the terms of exit and future relations have been worked out, at least in outline, between the British and other EU governments, and the outcome put to the people of the UK for acceptance or rejection.
The power to decide whether and if so when to invoke Article 50 of the Lisbon Treaty rests exclusively in the hands of Mrs May, the prime minister, and no-one else’s. It’s Britain’s only bargaining chip. It must not be carelessly or prematurely thrown away.
Brian
The key problem is whether the EU will negotiate any terms BEFORE notice is given. Once notice is given then the UK is on its way out. (There is maybe a possibility that the notice could be rescinded but some experts say not). It’s fraught with serious problems. Without doubt the best option would be for Parliament to “man up” and say “Brexit does not mean Brexit” because Brexit, having taken all matters into account, is not in the best interests of the UK.
Brian writes in response to ObiterJ: Thank you. I agree that this is a possible obstacle to the scenario I envisage. I don’t think the Commission or the key EU government leaders will agree to anything as formal as ‘negotiations’ before the UK triggers Article 50, but I don’t believe it will be possible for them to avoid extensive “discussions” of the issues, and indeed such discussions have obviously already begun. It seems to me that Mrs May could legitimately tell the rest of the EU (rEU) that her government is not prepared to commit the UK irrevocably to leaving the UK until its people have had an opportunity to pronounce on the acceptability or otherwise of at least a broad outline of the terms on which we would leave and on which we would form a new relationship with the EU after leaving it. For this purpose informal discussions, as explicitly envisaged in the European Parliament brief on Article 50, need to take place so that our people can have a good idea of what they will be letting themselves in for. Unless this happens, she will not feel able to notify our intention to leave under Article 50. It can’t be in the interests of the rEU or of the UK for the uncertainty to be prolonged indefinitely as will happen if the rEU refuses to enter into a dialogue to establish the broad outlines of what Brexit and post-Brexit will entail, so that the British people can take informed decisions on it.
I suspect that the rEU, including the Commission and Mrs Merkel, might see some attractions in this scenario. If their basic objectives are (1) to prevent other countries from following the UK into leaving, perhaps causing the whole EU to unravel, and (2) if possible to avert the UK’s departure from the EU, the obvious tactic on their part would be to present us with terms and demands that would be likeliest to be rejected by the UK electorate before Article 50 had been triggered. This would suit us also since it would obviously justify HMG in deciding that it would not trigger Article 50 and that accordingly Brexit was off the table — although the government would need to acknowledge the urgent need to tackle the serious problems and discontents that underlay the vote for Brexit on 23 June.
All very speculative, I agree, with lots of possible booby-traps along the way. Above all it assumes that Theresa May’s genuine preference is for the UK to remain in the EU regardless of the terms on offer and that the rEU similarly prefers us to remain rather than to leave. Neither assumption is, alas, necessarily correct. If either is wrong, we’ve had it.
A straightforward veto by parliament with no prior popular support for it would have the benefit of simplicity. But I suggest that very few MPs of any party would have the temerity to face down 17 million UK voters who had produced a clear majority for Leaving with the sole justification for such undemocratic defiance of the people’s will being that parliament knows best — even if it does, sometimes. Public anger with the establishment would be redoubled. MPs would be unceremoniously deselected. There would be demands for the government’s resignation and the election of a new administration more responsive to the decision of the referendum. There might well be strikes, even riots. What government or party would take such a risk? If government and parliament are going to go into reverse and abandon Brexit, as I devoutly hope they will, they will surely need the backing of a second popular consultation based on information that was not available on 23 June. I believe that the overriding objective of the coming months must be to move towards that popular mandate for backing off.
You might well be right on the practical politics of Professor Graylings recommendation, although – like Obiter J – I am inclined to side with him. This is because the dystopian vision you provide of what would happen following an attempt by Parliament to exercise its undoubted obligation (given its Remain majority) to ignore the result of the referendum might equally be overdrawn: it would obviously depend on the circumstances prevailing at the time, and, among other things, on the skill with which the government presented its decision, whether it had the cunning to enlist the young (many of whom were disgracefully disenfranchised in the referendum, as Professor Grayling rightly reminds us), and the extent of its ability to undercut the UKIP vote by channelling resources into areas where the white working class is particularly suffering. Let us not forget, also, the bearing on this question of the fact that – Farage apart – the most prominent Leave campaigners have been discredited. I think also that you do Professor Grayling’s argument a disservice by describing it as a ‘legal and constitutional’ one, or – worse – as a ‘legal’ one alone. I suppose this is right as far as it goes. But in essence his case rests on an argument from political theory that goes back, I believe I am right in saying, at least to Aristotle’s favoured ‘mixed polity’ (democracy plus aristocracy in the sense of ‘the best’) and latterly to Mill. Let us never forget that we do not live in a democracy but in a liberal-democracy given form by representative institutions, an upper house with life peers, and a non-political civil service – and not, therefore, reflexively describe those wedded to the paramount importance of such a system (as I know you are!) as legalistic in their outlook.
Brian writes in reply to Geoff Berridge: Thank you, Geoff. I accept your reproof, although with qualifications. I have no doubt at all that 95 per cent of the population would reject your and Aristotle’s “mixed polity” and Mill’s development of it and indeed Burke’s view of MPs as representatives and not delegates, as unacceptable élitism, however misguided such a view might appear to people like us. (It’s élitism all right, but not necessarily unacceptable.) It would require extraordinary courage for any government to inform the electorate that having invited it to participate in a referendum on whether to remain in or leave the EU, and having promised to abide by the result, it had decided in its wisdom to ignore the clear result of the referendum and to abandon Brexit after all: and extraordinary courage has not been the distinguishing mark of most of our political leaders in recent years.
IOW, I doubt very much whether my post or subsequent comments exaggerate the fury and outrage that a simple reversal by government and parliament of the referendum decision would provoke. Nearly half of the parliamentary Conservative party, including several ministers, would share and stoke public anger, and well over half of the Conservative party’s members in the country would be up in arms, although hopefully not literally. Would Mrs May and her mixed bag of colleagues be willing to face all that?
I agree of course about the need for government to address the problems caused in some areas by large concentrations of immigrants, and I have anyway advocated this on its own merits. But I can’t persuade myself that this would in any way mitigate the outrage that parliamentary reversal of the referendum result would cause. Apart from anything else, the allocation of more resources for areas of high immigration would take years to have any effect. Moreover in many areas where people voted for Brexit in huge numbers, citing excessive immigration as a major reason, there are very few immigrants and in some places virtually none at all. Conversely, in some areas with a very large concentration of immigrants, such as London, a big majority voted to Remain. It’s fruitless to ignore the sad reality that many of those who strenuously object to immigrants are motivated mainly by xenophobia and in some cases by simple racism, which they seek to justify by arguments about pressures on schools and hospitals even where they have experienced no such problems themselves, just read scare stories about them in the Sun and the Daily Mail. Convincing people of the overall benefits to the national economy of large-scale immigration, and indeed the absolute need for it, will take years, even if the political leaders are brave enough to make the case. Similarly, it will take years of effort to convince public opinion that overall immigrants create more jobs — they don’t take jobs from the natives, not least because there is no fixed pool of jobs and it’s not a zero sum game. Instead of making that effort, both the main parties are visibly in the process of caving in to ignorance and prejudice, pretending to agree that sharply reducing immigration will be a good thing and promising to achieve it. The fact that more than half of all immigration into the UK is from outside the EU and that we have total control over it whether we’re in the EU or out of it, and that Mrs May’s strenuous efforts to reduce non-EU immigration as home secretary have failed utterly because of the plain fact that the economy needs them, completely fails to destroy the link in people’s minds between EU membership and our alleged inability to reduce immigration. Mindless, but true.
I’m driven inexorably back to the opinion that the only basis on which parliament and government could gain reasonably widespread public assent to a decision to abandon Brexit will be if there has been a public consultation (preferably in a general election) on the acceptability or otherwise of the likely terms of Brexit and post-Brexit, the result of which will have been a convincing majority in favour of rejecting them. The logic of that points unmistakably to the need to establish those terms, if only in outline, and to consult the electorate about them, before the government triggers Article 50. Difficult on various counts, but I suggest not absolutely impossible.
PS I’m utterly opposed to “Votes for Children”, even if Children could be relied on to vote against Brexit. The mind boggles at the thought of other causes and demagogues that Children could be persuaded to vote for one day. With fascism on the march all over Europe and in north America, the risk is simply much too great. Children have plenty of “rights” — to life, not to be abused or exploited, to justice, and other uncontroversial goods — but absolutely not to vote. [He writes, ducking to avoid the sticks and stones and eggs and rotten tomatoes….]
A very persuasive legal and constitutional case, at least in theory, is made by Prof Grayling for reconsideration, or even outright rejection, by Parliament of the referendum result, though like you, Brian, I wonder whether that scenario, desirable as we might think it to be, is plausible in the world of real as opposed to academic politics. A more plausible, and indeed eminently sensible, scenario would be negotiations with the rest of the EU to determine the terms of of the UK’s exit followed by a general election called for the specific purpose of seeking the electorate’s approval or disapproval of said terms. The difficulties here, as several other commentators have noted, are essentially twofold: (a) the still evident reluctance of rEU to enter into such negotiations before the UK has triggered Article 50, a decision which, at least as I understand it, cannot be reversed once taken; and (b) the clear statements by both Cameron and his successor as PM that they would be bound by the referendum result — I cannot at any rate see how Mrs May’s “brexit means brexit” mantra can reasonably be interpreted in any other way. Politicians can of course always change their minds, and U-turns, though they are invariably pilloried for making them, are often the wisest decisions that politicians ever take. It is also possible, I guess, that other EU leaders/governments might soften their opposition to serious negotiations before the triggering of Article 50 if they came to believe that this course offered a realistic chance of avoiding the UK’s departure. But that doesn’t at the moment seem likely.
I am no constitutional lawyer and thus in no position to question the grounds on which Prof Grayling based his interesting assertion that the 23 June referendum result was merely “advisory”. He seems to suggest that its advisory nature was made “explicit” when the referendum was called. If so this completely passed my by at the time. Nor do I recall any of the leading figures of the Remain campaign ever making such an assertion during the run-up to 23 June. But perhaps the prof was making some constitutional point about the status of referenda results in general? Any thoughts?
Brian: I am puzzled by your contention that “the power to decide” on the triggering of Article 50 “rests solely in the hands of Mrs May.” How, when and where did she acquire such power? Surely, the power in this as in any other matter of remotely similar significance, rests with Parliament? I can sympathise with the strategy you suggest, fraught with intractable problems as it is. For example, I don’t think that any threats from rEU are going to change the minds of those voters who simply want to put two fingers up to Authority, or of those who don’t believe things could get any worse, or of xenophobic racists, or of those who don’t understand any economics (or anything else). So I would beg that all those who feel like us and Professor Grayling give maximum attention to the problem of lobbying every MP not already firmly on our side to convince her/him to vote, on whatever motion may ultimately be put to Parliament in favour of what the majority of them already know to be the interests of the country, and its citizens (however deluded some may have been on 23rd June). This may be a motion on whether to accept dire terms that represent the best that rEU may offer – or it may be a simple vote on the triggering of Article 50, accompanied by very little information on the consequences. Meanwhile I have a sneaking suspicion that Mrs May is perhaps shrewder than we give her credit for, and may be playing a long game of repeated postponements until her Mr Micawber moment arrives. If so, more power to her elbow.
Brian writes in reply to Michael Hornsby: Thanks. We seem to be so closely agreed that I could almost suspect that you had read my post before commenting on it! I’m surprised that there’s any doubt in your mind about the purely advisory character of the referendum: it’s about the only aspect of it that seems to be universally acknowledged (Google “EU referendum binding” if still in doubt; it’s spelled out in, for example, http://www.theguardian.com/politics/2016/jun/23/eu-referendum-legally-binding-brexit-lisbon-cameron-sovereign-parliament). Parliamentary sovereignty (although largely mythical) means that parliament can’t be bound by a consultation with the electorate unless parliament has declared in the legislation setting up the consultation that the government must act in accordance with its result, which in this case parliament did not. And even if it had, it could still amend the relevant legislation retrospectively. It can do whatever it likes, in theory.
The principal rEU leaders have emphasised that they will not countenance anything resembling “negotiations” before we trigger Article 50, if we ever do, and there has been some attempt to rule out even “informal discussions” pre-Article 50, but I think that has been more or less dropped in the face of reality. Please see the official EU Parliament document at http://bit.ly/28SOhRV (quoted in my post at https://barder.com/4715 and strangely not picked up by the MSM commentariat) which expressly says, in part, –
In fact it seems clear that such informal discussions have already begun. These are clearly vital if new and adequately firm information comes out of them on the basis of which the British people could reasonably pronounce “terms acceptable” or “terms not acceptable” before there’s any question of triggering Article 50. After that it would be too late: there’s no provision for changing your mind once you have triggered Article 50, except by completing your withdrawal agreement, withdrawing, and then applying to rejoin as a new member.
Like Baroness Wheatcroft, I don’t think much should be read into Theresa May’s Delphic (or possibly just platitudinous) statement that “Brexit means Brexit”. It invites the response, “Yes, but what does Brexit mean?” It seems to me to fall a long way short — perhaps intentionally — of a firm pledge to act on the result of the referendum. Even if that’s how it’s being interpreted by the Brexiteers, the May government’s action in tasking a group of ministers to be in charge of negotiating UK exit and embarking on discussions with the rEU leaders on the modalities of exit clearly represents action in pursuance of the referendum decision. If later it becomes clear that the best terms for exit and future relations that we can get are so harsh and damaging to UK interests as to be manifestly unacceptable, it can hardly be argued that government advice to the electorate to declare the terms unacceptable in a fresh consultation would be to defy the will of the people or to thwart the referendum result. The May government is a new one that doesn’t include Cameron and can’t in my view be bound by any pledge made by Cameron (although the Tory election manifesto on which the whole of the May government was elected could be slightly problematical!).
On the need, or lack of it, for parliament to authorise or veto an Article 50 notification, please see my reply to Robin Fairlie below.
In reply to Robin Fairlie: I have no doubt in my mind that a decision whether and if so when to make a formal notification of intention to withdraw from the EU is one that can be made by the prime minister personally under the Royal Prerogative which covers the great majority of foreign affairs decisions and acts, notwithstanding Tony Blair’s decision to seek parliamentary approval for taking the country to war against Iraq in 2003 — arguably setting a rash precedent that his successors may live to regret (as Cameron probably did when prevented by the house of commons from bombing the forces and assets of the government of Syria without UN Security Council approval and in the face of strong Russian military and air support for the Syrian president). There does exist a constitutional or legal view to the contrary, however. The position is very clearly set out in an excellent article by Baroness [Patience] Wheatcroft in today’s Guardian: please see http://bit.ly/2b1CxKC to which it’s unnecessary to add. I doubt very much whether the courts would try to restrain the prime minister from triggering Article 50 if she was clearly acting rationally (even if misguidedly) in wishing to do so. However the relevant question is whether she would see a political case for seeking either popular or parliamentary approval, or both at once, before taking such a momentous step as either to trigger or, perhaps even more controversially, not to trigger. Much obviously depends on whether she is determined to bring the UK out of the EU following the referendum result, or whether she may be looking for a democratic, legal, constitutional and reasonably popular way of keeping us in. She may well not have decided firmly which of the two is her objective: possibly she will decide only when the terms of exit and future relations are more or less settled.
I wish I shared your belief that parliament might be persuaded by the likes of us to reject Brexit, however grim the terms imposed on us by rEU, without the backing of a majority of public opinion expressed in a general election or a second referendum or other form of more or less formal consultation. Similarly, I don’t believe the present or any future government would invite parliament to reject Brexit without some such backing from the electorate, and parliament would be exceedingly unlikely to act in such a way without the government’s advice to do so. It’s just possible to imagine a scenario in which there was inter-party agreement on the need for a general election to settle the matter, in which case it might be agreed to stage a narrow defeat for the government on the issue of ‘trigger or not trigger on the terms offered’, followed by the resignation of the prime minister, a dissolution and a general election. Such a situation is by no means inconceivable — such things have happened elsewhere in Europe, although of course not on the issue of withdrawal from the EU — but it entails venturing a rather long way into the area of speculation!
PS: The reactions to Baroness Wheatcroft’s article will be informative: the writing’s already on the wall (https://www.theguardian.com/media/greenslade/2016/aug/02/what-the-daily-mail-and-sun-attacks-on-baroness-wheatcroft-betray). The more than 3,000 comments on the online version of Baroness Wheatcroft’s invitation to the house of lords to reject Brexit are also worth a glance as an indication of how a large section of the public would react; this is not by any means untypical:
*For the uninitiated, if any, lol stands for Laughing Out Loud, although David Cameron used to use it for a long time in signing off his letters or emails to a certain powerful Murdoch press lady under the impression that it meant Lots Of Love….
Lots more in the same vein — and this from Guardian readers and people accessing the Guardian’s website!
It seems to me that asking the electorate to vote in a second referendum on whether or not the presumably harsh terms offered by the rEU are acceptable, would simply provoke a collection of these reactions: “why can’t these buggers just do what they’re told; it won’t happen anyway; this is just a repeat of Osborne’s scare tactics; it’s all two years ahead and I don’t believe it; why should any of this concern me; I always knew these foreign swine across the Channel were out to get us – how dare they…….” I wouldn’t be surprised if this provoked a bigger vote for Leave; I would be extremely surprised if it reversed the previous majority. Unlike me, Brian, you have always had a good word to say for the generality of our politicians, yet you now seem to be supposing that the Commons does not even contain the small number required to vote as their conscience tells them they should. If that is truly so, I despair of the whole process of representative democracy.
It is very hard to argue the referendum was purely advisory after the fact, and especially when nearly everyone who particpated in it believed it to be binding.
It is also very hard to justify one’s desired course of action on the principles of mixed government and representative democracy, plus the idea that some people actually do know better than others, when neither the principles nor the idea enjoy wide acceptance on political matters.
If I were a Remainer, I would simply continue to go slow on activating the exit negotiations, waiting for pre-negotiators among the other EU members to break ranks and for various other electoral and economic shoes to fall in the EU. Of course, this approach would be far more attractive to those Remainers who regard the institutions as the regretable, but necessary, price of market access than to those who regard the EU’s institutional development as a good thing.
In constitutional law the referendum result may be purely advisory, but I can find no evidence to support Professor Grayling’s claim that this was made “explicit” before the vote. Correct me if I’m wrong, but as far as I can recall no leading Remainer, from Cameron down, said “It should be understood that the outcome of the referendum, whichever way the vote goes, will be purely advisory and subject to the endorsement of Parliament” or words to that effect. Making that argument after the fact is indeed hard, as Paul Sharp says; making that argument becomes impossible, I would suggest, when the fact in question is a referendum result that was the opposite of what the Remainers hoped for and expected.
Michael Hornsby makes a fair point. The advisory nature of the referendum – and it was advisory – was not emphasised during the campaign. In a legal sense that doesn’t matter because the Referendum Act 2015 did not seek to make the outcome of the referendum legally binding. By way of contrast, the Act setting up the Scottish Independence Referendum in 2014 did seek to make the outcome binding. A similar provision can be found in the Northern Ireland Act 1998. It is therefore entirely open to Parliament to say that we are staying in the EU but, of course, if it does so then politicians must take whatever political consequences ensue. Personally, I don’t think they would be too long lasting.
There are many lessons to be learned from the EU referendum. The cynic might well say – No more referendums. I will leave it there for now!
The electorate have been misled. They thought they were making a mandatory decision but they were making only an advisory decision. Parliament is sovereign and enacts the will of the people. The will of the people is that the referendum should be advisory. Parliament has to assert its sovereignty and debate that advice. There is a very good argument that parliament would be well-advised to take that advice but it doesn’t have to.
All “negotiations” prior to invocation of A50 are irrelevant. We will not disclose our hand, they will not disclose theirs. The fan starts spinning only when A50 has been invoked. Therefore we need to invoke A50. So – what facts do we know?
We know that the EU accounts for 45% of our export trade and 16% of our GDP. We know that we account for 16% of EU export trade and 3% of EU GDP. We know that we are 4 countries with 60 million consumers and the EU is 27 countries with 600 million consumers. Everything else is speculation.
I speculate that the EU will take whatever steps are necessary to stop itself unravelling; that it has had enough of us and may be willing to see the back of us just to get rid of a pain in the backside; that they may be willing to cut off their noses to spite their face and tell us to go even if we agree to keep open borders; and that once we are gone that they will try to ruin us economically to discourage other member states from trying to follow us.
The Brexiteers appear to be replaying the Last Night of The Proms: Rule Britannia (Britons never shall be slaves), Land of Hope and Glory (God who made the mighty make thee mightier yet), and Jerusalem (and was Jerusalem builded here); that the rest of the world is falling over itself to trade with us; that British ‘stiff upper lip’ will win the day; that if Brussels fails to obey then we will send gunboats up the Rhine.
There is a compromise. Invoke A50. Finalise the exit deal. Call a second mandatory referendum on whether to accept the deal and leave. Advise the unelected unknowledgeable electorate which way to vote.
You have walked the corridors of power. What is your take on all of this?