Waiting for Brexit – a note on contentions and biases

5th September 2016

This post sets out my personal view of Brexit, and it also sets out what I believe to be my biases and preconceptions.

The reason I am writing this post is that I am now writing a lot about Brexit at FT and elsewhere (including a short book commissioned by the Oxford University Press) and it seems appropriate to set out in one place what my approach is and what the propositions are which I am advancing.

By way of background: until the referendum vote a couple or so months ago, I never expected or wanted to write much about European Union issues.

I had done a couple of posts at the FT about the referendum before the vote: here I explained why the referendum was not legally binding and here I contended that the referendum was unnecessary.

But I did not expect ever to write any more than this on the topic: I assumed, like many people, that Remain would win and Cameron would get away with his political folly.

Then Remain lost and Leave won, and a spectacular political-legal-policy mess was created.

And, I am afraid, I found this mess fascinating.

I still do.

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After the referendum result, a tweet of mine – a laboured allusion to Waiting for Godot – was heavily RTd:

And around the referendum result, I also (foolishly) made a couple of stark assertions:

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Today there is now some legal doubt as whether it was open to the prime minister to send the Article 50 notification on the day after the result.  There is pending litigation which will probably end up in the Supreme Court on the correct legal form of an Article 50 notification.

(To this all I can say is that had the prime minister purported to do this on the day after the result then I cannot see how any court would have injuncted him or quashed his decision: there had been (1) a decisive majority in (2) a dedicated national referendum with (3) the largest turnout in history and (4) the government’s stated position had been to give effect to the result “straight away”. The notification would have been a fait accompli.)

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When the prime minister did not send the notification it was, for me, the dog in Sherlock Holmes which did not bark in the night time: a curious incident in and of itself.

In short, Brexit became a topic of special interest to me by accident: I was expecting to move back to my usual areas of domestic public and media law and policy.

So, with this throat-clearing out of the way, I will now set out the propositions I wish to advance (and am willing to defend) and the biases and preconceptions of which I am aware.

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Propositions

My first proposition is that Brexit is not inevitable.

This is because of the following:

(1) the referendum was not legally binding;

(2) Brexit will be a complex, time-consuming and resource-intensive exercise (perhaps the greatest exercise by any UK government in peacetime);

(3) there are many other areas of policy which the UK government would prefer to devote its limited time and resources;

(4) there is no model of Brexit which commands support even from a majority of those in favour of Brexit (for example, what should the UK relationship be to the Single Market?);

(5) there is no obvious way the opposition of the Scottish and Northern Irish governments can be accommodated within any plausible model of Brexit;

(6) there is also no obvious way that a meaningful Brexit can be reconciled with the Good Friday Agreement;

(7) a EU exit deal is not easy (as is well known, it took Greenland three years with a small population and one issue (fish) to withdraw from the old, less complex EEC);

(8) replacement international trade deals are not easy and can take up to ten years;

(9) few people with political power in the UK – either ministers or officials – want Brexit to happen; and

(10) statements of political will and intention (however strident) are not the same as evidence of political capability or action.

My second proposition is that Brexit will also not simply go away.  This is because:

(1) the issue of UK membership of the EEC/EC/EU had dogged British politics since the UK joined, and this is the first time there has been (it seems) a resolution of the issue in principle;

(2) the referendum had a higher turnout than any general election and Leave received a greater vote than any political party – and if “mandate” means anything, it must mean this;

(3) there is no likelihood of a second referendum or general election which will (somehow) counter or neutralise the referendum result; and

(4) the government of Theresa May would be unlikely to survive any explicit admission that Brexit is not going to happen.

My third proposition, drawing on the two above, is that there will be a tendency for Brexit to be put off and delayed, without it ever being stated that it will not happen.

This is for all the above reasons, plus the natural inclination in British politics to put off difficult decisions – in the UK, political procrastination is almost an art form.  In turn, this means that over time the notification becomes less likely, as events may intervene and excuses can be contrived.

My fourth proposition is that Brexit could still happen: something becoming more unlikely does not make that thing impossible.  Theresa May is (expressly) willing and (perfectly) capable of triggering Article 50.

Countering each and every factor which tends to Brexit being delayed or not happening is that there may be a political crisis or some need to show political power which leads to Article 50 being invoked.  If so, many of the reasons above will then switch to Brexit not being (well) unproblematic. The problems will not go away: they will just be the same problems in a different context.

Biases and preoccupations

By reason of pointing out the problems with Brexit, I have been accused often of being a Remainer (and less flattering equivalents).

For what it is worth (and I hope my analysis and commentary stands without it being worth anything), my personal views on Brexit are as follows.

First the negatives:

(1) I am not a particular fan of the European Union and I do not think I have ever written in favour of it (this piece is an example of me being not a EU fan);

(2) if in 2016, the UK somehow had not been a member of the EU, I would not want UK to join it;

(3) had I been able to vote in 1975 I would have voted against UK remaining a member of the (then) EEC;

(4) I have opposed every treaty or major treaty amendment since Maastricht (and I would have voted against each, had they been put to a referendum); and

(5) in my view there are two fundamental problems with the EU – (i) the lack of transparency and (genuine) accountability and (ii) the push to “ever closer union”.

On the other hand:

(1) I do not think Brussels and so on are inherently worse (or better) than Westminster or Whitehall – they are all manifestations of the “State” and seem much-of-a-muchness to me as a liberal;

(2) I was a (reluctant) voter for Remain in 2016 only because of the “Breaking Point” poster and the turn the referendum campaign seemed to take about the time of the tragic death of Jo Cox (I had intended not to vote at all);

(3) I am a supporter of the ECHR and NATO (if not of the EU); and

(4) I am a supporter in principle of there being as few controls on migration and immigration as possible, as I believe both are Good Things.

So, with these biases and preconceptions about Brexit, I aim to be generally neutral about Brexit, and I believe myself to be ultimately indifferent about whether UK is a member of the EU or not.

I realise that in the preceding paragraph a lot of work is being done by the adverbs; but that is as accurate a description as I can manage.

For me, it is the mess of Brexit which I find fascinating, and so my (conscious) intention – and ambition – is to offer good and reliable analysis and commentary on Brexit.

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48 thoughts on “Waiting for Brexit – a note on contentions and biases”

  1. an adverbial triumph; i for one should firstly apologise as i once called you ‘lame’ in a tweet in regard to what i sensed was your fence-sitting on the matter but did also offer you a cold-beer wager in relation to your “Article 50 will never be triggered” phase… but nonetheless as a current Public Law student find your input to this debate invaluable… knowing your biases etc. only deepens that…

    in my humble opinion… as history would have it Theresa May has all the hallmarks of being just the person that will go on to trigger Article 50… so becoming the #brexit poster girl for those who approve… or an all mighty fly-in-the-ointment for those unfortunate Remainers such as myself… keep up the good work!!!

  2. I have difficulty understanding why you were not going to vote Remain even though a “a spectacular political-legal-policy mess” has been created as a result of the Leave vote.

    Surely that is the best reason for voting Remain.

    1. Because a vote on the issue of EU membership should be a matter of principle, and on that matter of principle I was (and am) indifferent.

      I just found such lofty disinterest difficult when that poster came out, etc.

      1. I am curious why the referendum was a matter of principle for you rather than a matter of expediency. I would guess that to be truly consistent you would need to take every vote as a matter of principle. Is that the case or is there something special about referenda and particularly ones about the EU?

        We’re all allowed to be wildly inconsistent so I’m not trying to lure you into a trap or anything like that. In my book, there is absolutely nothing wrong with paradox. I’m just curious because if I voted on principle I would likely never have cast a single vote.

    2. I am new to this blog today. May I say how refreshing and pleasant it is to find such good manners throughout.

      I voted Leave after much the same thought process as David AG about the EU. The dreadful poster and Jo Cox’s murder almost changed my mind to Remain, also like David and Janice Turner at The Times. In the final analysis, however, my view was that the EU is simply not functioning properly and has become harmful to its member states, so it was in the UK’s interests to regain control over its own laws etc. I felt that was more important than one horrible poster, however damaging, and a horrible murder by a madman. I could go on to elaborate my reasons properly but you will have heard most of them before, so I won’t do so.

      In answer to your point about the “spectacular legal-political-policy mess”, I’d say that until the poster came along, the prospect of generating such a mess was indeed the biggest block to my voting Leave. I had to ask myself whether the inconvenience, widespread disruption and tears, possibly for years to come, were enough reason to stop the UK extricating itself from the increasingly and undemocratic EU structure. I came to the conclusion that they were. Democracy is all. Ours is far from perfect but it’s much better than the EU version. One can’t stay in an organisation that doesn’t work and will come to harm you, simply because it’s too much hassle to fight your way out.

      I did think a couple of weeks before the vote that it should be postponed, as both campaigns were so unhelpful and damaging. I also felt far from jubilant on the morning of 24 June. I would love to have seen a reformed EU and for us to have stayed in it. But that was not on offer. I remember a couple of days before the vote, Mr Caneron saying we should remain and fight for reform, and my heart was with him, but M Junckers’ reply was that there would be no reform. Indeed, it appears the EU is not capable of it anyway. So I felt I had chosen the lesser of two evils.

      1. It’s nice to read a considered response from a Leaver, although we don’t agree: for instance, I wouldn’t say the Commission was unelected, because its members are appointed by people who are elected – in my view, it’s simply the Civil Service of the EU. But several of my family voted Leave and it was mainly because they believed the promise of £350 million for the NHS. They couldn’t care less whether the EU or the British Government makes Britain’s laws, because they don’t see their lives getting any better whoever’s in charge, but they’d go to the wall to defend the NHS. I think the Government completely underestimated quite how powerful that promise on the NHS was to ordinary people who depend on free healthcare, and I assume that’s because they are rich, privileged white (and mostly) men who’ve never feared a thing in their lives or suffered any kind of lack.

  3. Bang on the Euro; reading twitter, although I deactivated my personal account because got sick of the hassle from and with “righties”, I get the distinct impression that pro Brexit tweeters imagine that exiting the EU is as straightforward and easy as terminating membership of a gym or a wine club. They should be directed to House Of Commons Briefing papers on the subject lengthy, but illuminating reading…

  4. There’s a common assumption by many, including you, that the British state has the capacity to manage Brexit. You’ve described the challenges well, but could our government, or indeed any government, successfully deal with them?

      1. I see. You’ve blurred political capacity with the state capacity I was referring to, but I suppose you do imply that there is a question. I still think it remains critical and hasn’t been addressed adequately, particularly at Westminster.

    1. Present Government and (hollow laughter) HM Opposition have a complete lack of statesmen fit to deal with this mess without tantrums, hystrionics and leaking to ‘the Press’ every 5 minutes. That generation have passed on – and would have been too canny to have got us in this position to start with! Cameron’s Legacy.

  5. Nice and thoughtful, thanks.

    One comment: I don’t think delaying will help, if anything it is starting to create problems for May already. Not just because the natives/nativists are getting restless, but because all partners in the process are irritated by the irresponsible and incompetent handling of the whole affair. There is also the matter of the hard deadline for Brexit, which is conveniently timed in 2019: the EU elections. The UK cannot be participating in those without making a mockery of “leaving”, so must have concluded the Brexit negotiations by then.

    All of this points to a trigger of article 50 early in 2017, unless May’s hand is forced and she triggers it sooner.

  6. Those pending legal challenges eg Gina Miller&Co via Mischon De Reya must surely be of concern to May, and will be “staying her hand”, although, do not expect any admission of that fact. Ironically, I was not a great student of constitutional and administrative law during my LL.B undergrad years; now aged 70, I have developed a great deal of interest in the subject, and am participating in several blogs. Prior to the vote I read House Of Commons Briefing Papers on the subject that convinced me that the withdrawl and renegotiation process would be legally, economically and politically complex. I live near to Sunderland, and seeing those “Leave lemmings” leaping in the air with joy like successful GCSE candidates was so ironic, bearing in mind the success of Nissan situated nearby…

  7. Lots of discussion on political blogs here in N Ireland; but no realistic method for a Brexit has been found.

    There is a legal challenge ongoing in the local High Court, a challenge with some cross-party support.

  8. Thanks for a thoughtful and informative article. My reason for wanting the UK to remain in Europe (and I can’t see any other comments on this topic) is for the peace dividend. Born just three weeks after Hitler turn his attention to Russia and away from the UK I have always valued this aspect of the EU. By whatever means I do hope the UK retains at the least a very close relationship with the EU even if short of actual membership. As an aside I notice that sterling is slowly climbing again on international rates so there appears to be more positive sentiment there.

    1. The peace dividend is one of the reasons I find it difficult to understand why it is the older contingent who have supported Brexit. I was taught by my parents about the horrors of war and that the EEC was one of the institutions set up to help keep the peace. I therefore thought anyone as old as or old or older than me would have supported remain.

      1. The prospect of a peaceful Europe was of course central to the creation of the EEC and its forerunners. There are arguments that it was really post-war exhaustion, NATO and American money that kept the peace but they are probably beside the point, which was that it was Europeans themselves who were actively arranging their affairs to achieve that permanent peace. I think a huge element of the Remain vote (young and old) had that, very honourably, as the sentiment at the back of their minds. It was certainly what Sheila Hancock, the actress, had in mind when she made her eloquent points during the TV debate. There are, however, two points to be made: firstly, although the sentiment is entirely right, the current EU structure is not the right way to go about achieving peace. The current EU is so dictatorial in its structure and operations that it is leading to resentment – it is getting more likely that Europeans will end up fighting each other, not less.

        Secondly, the war generation and their children and grand-children thought they were fighting for the right of European countries, including Britain, to self-determination. Having a stream of laws flow directly into the UK from an unelected Commission is not what they would call self-determination.
        We need a new model for a peaceful Europe, based on proper sovereignty for each country. The EU is well- meaning but it is not Europe. Europe is much bigger and better than the EU.

        1. Surely the Commission is voted on by the elected EU parliament and although the Commission proposes legislation it’s passed by the elected Council and parliament. That’s my understanding at least.

  9. I’m interested by your contention that the referendum wasn’t legally binding. The government published leaflets which said “this is your decision. The government will implement what you decide”. I’m no expert on contract law, but surely that must have some legal basis?

  10. The courts would be overwhelmed with litigation, not just in England, but worldwide if politician’s “promises” published in party political or pre referendum literature had contract term status…

    1. That would be brilliant. Can you imagine what campaign slogans would be like? Can you imagine the caveats?

      I do find it bizarre in the extreme that Brexit campaigners were able to say absolutely anything, even blatant untruths (such as the £350m and the Turkey joining the EU posters), without any consequences. In a sane world, they should have been struck from the ballot paper for that. After all, what have people voted for, when the campaigners were lying?

      1. Unfortunately both sides told complete bare-faced lies, surely you did not believe everything the Remain camp claimed?

        I like the idea of slogans with appendices though!

        1. The fact that both sides told “complete bare-faced lies” makes the case for voiding the referendum result an even more compelling one.

      2. Yes but since the people making those predictions were not in the positions of power in which they could have delivered them, these were not actually promises. They just looked a lot like promises, since they were made from the same kind of words.

  11. The problem with this that although Ministers broadly want to remain, there are enough Tory MPs for whom “Leave” is a sufficient article of faith to bring down the government rather than let article 50 get in range of the next election.

    Early 2018 is the most favourable slot in the european electoral calendar, and also the latest we can go before the two year limit interferes with the scheduled UK GE.

    At that point I suspect leavers would feel an ‘are we leaving or not?’ election is their best play – the alternative being not leaving till 2022 at the earliest. May would realise the choice is A50 or an election after which a Tory/UKIP administration is a very possible outcome. I don’t see her taking that risk, more likely she’d take A50 on the basis that we’d probably get agreement to withdraw it or extend the deadline if push became shove.

    People talk about the 2 year limit in A50, but the truth is we’re already on a clock. I suspect the major ministries across the EU realise this.

  12. You piece seems to only consider the political pressure to leave and the corresponding inability of the government to deliver it. It strikes me that most of the world (and in particular, it’s major global companies) will grow impatient of the lack of certainty the current limbo brings and force a decision one way or the other. If the UK doesn’t make a decision, they just might, and the U.K. may find itself experiencing the worst economic effects predicted without actually having left.

  13. The argument about “what’s next?” that impresses me is the legal right of appeal. In virtually every part of our legal system a jury’s decision is not final. The prosecution or the defence can appeal against verdict – up to the highest court in the land in some cases. One of the most effective grounds for appeal is that of inaccurate information having been given to the jury. This does not say that the jury was wrong it says that they were given untrue or misleading “facts” and as such may have been influenced in their judgment. Or that the Judge in his guidance to the jury was similarly influenced by inaccurate information.

    There is ample evidence that some of the information given to the British voters in the EU Referendum campaign was misleading, or simply wrong. It was also inconsistent. There were two “Leave” campaigns and they did not have a message that was the same – indeed it was often contradictory. Likewise the media (Mail, Express, Sun especially) had daily headlines that were at best disingenuous.

    Most culpably the electorate was asked to make a binary choice (the famous “In or Our” demanded by the Eurosceptics) when the implications of an “Out” choice had been properly considered by nobody. Civil Servants weren’t even allowed to make contingency plans for a “Leave” outcome apparently.

    If it had been a court of law the grounds for appeal would be strong. “Guilty” would not mean “Guilty” until all due legal appeal processes had been completed. If then. “Brexit” means “Brexit” should be subject to the same rigorous challenge.

  14. Paddy, good to encounter you on this blog; we exchanged tweets in the days when I was a twitterer. Decided to deactivate my account, not least because of hassle caused by a certain Tory tweeter, who made a bit of a nuisance of himself. At least on blogs like this no one tries to “bully” you. After reading Owen Jones’ book “The Establishment”, I am left in little doubt that our tabloid press along with a depressing number of shallow, sound byte politicians influence a substantial majority of the UK population; given that, I will be interested to discover why Scotland voted to “Remain”. I still follow twitter occasionally, and in so doing I reinforce my decision to deactivate. Have a feeling that Mr Farage will be turning purpler during 2017 waiting for the exit button to be pushed by TM. Of course Trump and Wife could be occupying the White House and partying with BJ, that is unless they are engaged in all sorts of legal battles with The USA Supreme Court!

  15. It is interesting to read this kind of analysis, but also rather depressing to note its disinterested tone. Some of us are very badly personally affected by the Brexit decision, and it could prove catastrophic for us if it goes ahead. I am a Briton who has lived in France for 16 years. I was not allowed to vote in the referendum, despite working for UK companies and having all my savings and pensions in the UK. As a downshifter, I do not know if I will be entitled to French citizenship, though I will certainly attempt to gain it (at considerable financial expense) because I don’t wish to lose my rights as an EU citizen. But if you don’t earn enough, you also can’t remain here on a rolling visa, and there is really no way to earn extra money in my rural area, where unemployment is high and French citizens are favoured over foreigners. There are many British people here, some of them elderly and vulnerable, who are deeply worried about losing their reciprocal health coverage. Most of them came here because they could no longer afford to live in the UK, but they could, just about, buy a little place in France, do it up, grow their own and live frugally – they absolutely cannot afford to return to the UK and if they did so, they would be a charge on the state. I hope all of you debating on Brexit can pause to remember that for some of us, this is a very, very serious personal matter, not just theoretical.

    1. I wonder if we will eventually look back on the 1990s and 2000s as a period of great freedom. When I was graduating back in the early 90s everything was opening up and it seemed that the future would involve borders coming down and an increase in personal freedom. I’ve even taken advantage of the freedom of movement of labour in the EU on two occasions and am currently living in Switzerland under freedoms brought about by EU treaties. The EU has been really good to me. It must be a bit depressing to be 21 right now and just setting out on your adult life. For that reason alone, voting No was never a possibility.

      You’re quite right, this is about real lives. Having said that, I quite enjoyed the neutral tone. It made a change to the gnashing of teeth typically associated with this topic.

  16. Must admit that whilst I have no friends or family members residing in the EU; the potential effects upon such residents and the stress that a “Leave” vote would cause them was a factor that I took into consideration, when voting “Remain”, No doubt some of the “Leave Lemmings” leaping in the air like successful GCSE candidates in nearby Sunderland may well be in contact with concerned friends and family members retired, living in sunnier climes and deeply worried.

    1. I’m glad to hear that. I think it’s something many Leave voters didn’t even think about and there are also many who think it serves people right for daring to leave England (it’s definitely an English attitude, not a UK one). It’s been deeply disturbing to read the venom on many forums and BTL comments about Britons living abroad and all the ‘turned your back on your country’ nonsense – it feels like the country’s retreated 50 years. Though, even more unbelievably, plenty of Britons on the Continent voted Leave – they appear not to realise it means they could be deported if no reciprocal residency agreement is put in place, and that seems well down on TM’s list of concerns.

  17. Clear, precise and important but it displays the persistent symptoms of a uniquely English disease: Pretending to exist in a vacuum. The most likely factor to determine Brexit are on the other side of the channel e.g. the upcoming German Elections. A strong, stable German Government is the best guarantee that Britain is not going to get away with indeterminately fudging the issue. Once the German elections are out of the way, German politicians will unite in working towards a consensus to reform and strengthen the EU (The SPD has already set out some of the parameters).

    And don’t be fooled by the British Press coverage suggesting that the Mecklenburg-Vorpommern success of the AfD somehow are signaling the future. It’s a bit like pretending that UK politics are somehow determined by the electorate in Cornwall, preferably by Cornish Separatists. They are not. Mecklenburg-Vorpommen has a tiny population and no economic or political significance.

    1. My post places considerable reliance on Scottish and Irish issues, so I hope I do not have a “uniquely English disease”. England and Britain are not the same..!

      1. Yes, and rightly so.

        I choose English as opposed to British very consciously.

        As you aptly point out dismissing the Scottish and Irish questions has been among the most obvious omissions among Brexiters. Instead they continue to insist that England is unanimous with Britain.

        The dismissive treatment of Nicola Sturgeon by English politicians and press is just one sign of this attitude.

        Although on paper Britain is a country of four nations the British Elite persistently act otherwise. Compare the treatment of the Scottish or N Irish with how a Federal German Government treats (and has to treat) individual German states and their concerns in international negotiations.

        If those pretending to lead Britain, would have accepted the reality of a devolved UK we most likely wouldn’t be in this big a mess. Because they would have had to take the concerns of Scotland and N Ireland into account pre referendum–most likely they would have been legally obliged to do so in a genuinely devolved state. Consequently, the state would have been far more prepared for the eventuality in which we now find ourselves.

        But the reality is that N Ireland and Scotland are not in a position of power in relation to England and so they and their very real concerns for peace (esp. in N Ireland) and stability can be dismissed as a bit of a joke.

        My point was and is that this colonial attitude to other nations might be sustainable in relation to Ireland and Scotland, but it is unlikely to have success when it comes to dealing with far more powerful European nations especially Germany.

        As a European with Hungarian origin and a German passport living in the UK what strikes me most is how divorced UK politicians are from the reality of their European counterparts (The distracting shenanigans on Grammar Schools is a great demonstration, seriously there is nothing more pressing to address post Brexit?)

        It is not a good start for any negotiations when you are so stuck in your own idea of what is real that you are utterly unaware and clueless in regard to the positions of your negotiating partners.

        As a consequence we might be witnessing the final (potentially very painful) unraveling of Britain as a colonial anything and how this unraveling will manifest itself will be determined not by Britain but by others (who are hopefully better prepared, wiser, more measured and have a reasonable vision for a post-colonial democratic world).

        Scotland and Ireland (North and South) will play an important role but how important will depend on the reality of the power distribution within the Kingdom. Nicola Sturgeon fills me with hope in this context. She seems to recognise and think about issues, acknowledges that Scotland is part of a network of nations and that negotiations, collaboration and ultimately finding consensus is the ultimate responsibility of politicians. Of course she is the leader of a small, insignificant nation. A welcome relief from the perpetual English rhetoric of world dominance. This in my experience is a disease unique to the English who heroically suffer it under the guise of Britain.

        What we are most likely to find out in the coming years is how big or small English Britain is. And that, ultimately, is in the eye of the beholder and they, by definition are mostly b****y foreigners.

  18. This is all from the British perspective. What nobody has properly analysed is the different European perspectives.

    The EU has a vested interest in seeing Britain out and humiliated, so it can continue with the Europroject without interference from the most sceptical nation; but that is not in the best interests of member states, who have a trade surplus with Britain.

    Meanwhile, the Greeks default (again) without having put in place reforms, France and Germany are becoming more sceptical as time goes on, and the Italian and Spanish crises have been kicked down the road.

    A permanent stasis is actually not against British interests. We are still in the EU, we still get the free trade and so on; but the EU cannot move towards federalism while this happens.

    So, this might be a case where it is in Britain’s interest to chillax for a while, and wait for the EU to become more conflicted with its members.

  19. My opinion is that UK should have set up a government funded unit to objectively and analytically consider all the implications of “Brexit” or “Brexin”, then Parliament should have debated whether or not to hold a referendum post 2020. Whilst I am not a supporter of the Conservative Party, if they had won the 2015 GE without a manifesto commitment to an EU Referendum, a Conservative Government should have focused all its efforts upon its manifesto commitments to growing the UK economy and balancing the budget; the UK should have been given the opportunity to decide whether or not “The Osborne Plan” was viable and delivering by the time of GE2020. Ironically, the House Of Commons Library have produced some lengthy, objective and informative briefings regarding “Brexit”, but I doubt if any of the “Leaping Leavers” of Sunderland, situated near to where I live, would have read and digested their content. I suspect that they thought leaving the EU was as legally and economically uncomplicated as terminating membership of their local gym.

  20. A lot of attention has been placed on the if and when of the notification. I think you have gone over this argument already but…

    A senior advisor to my MP advised that legal challenges to the referendum result were unlikely to succeed since it had ‘no legal consequence’ so there is nothing for the courts to overrule.

    If there is ‘no legal consequence’ then it surely cannot be a democratic mandate or a decision under Article 50. If there has been no decision there can be no notification. Do you agree?

    As Nick Clegg was quoted yesterday on LBC, the outsiders won. Now they are in charge and we are waiting to see their plan. The pressure is on and they do not seem to be having much success.

    1. ” If there has been no decision there can be no notification.”

      Not at all. The only question is whether the PM can constitutionally decide to take the UK out of the EU, i.e. decide to end a set of international treaties. Whether or not she does it as the consequence of a referendum is irrelevant to either article 50 or the UK constitution. Clearly the PM has the power to make and break treaties on behalf of the country. That is, after all how these treaties were made in the first place as well.

      The legal challenges must fail since they would have to argue that the PM does not have the right to end treaties without some kind of supporting official … something. That’s just not the case.

  21. I find it interesting that what we’re trying to negotiate with the EU, i.e. single-market access but with immigration controls, is essentially the same as it was before Brexit. On every one of the many occasions we have brought this up, both before and after Brexit, the EU’s answer has been the same – ‘no’.

    I’ve a funny feeling that this ‘historic’ vote will be plunged into insignificance…

  22. A question, if I may: The referendum is not legally binding, but you imply it to be a mandate. I believe I understand what “legally binding” means but what does “mandate” mean in this context?

    If not legally binding, what does it mean to say the PM has a mandate? And how does the referendum mandate differ from that of a general election’s? Must the government enact or attempt to enact everything in their manifesto?

    Sorry if I’m unclear.

  23. It seems to me that the notion of ever closer (political, European) union was missed by public and politicians alike, as early as the 1974 ? referendum. Even today, trade and business seem to be more important than a voluntary federal system, which could cover the whole Continent. A Federation does NOT mean that we lose our cultural identity, languages, legal systems, educational priorities, armies, etc.etc. If anything, the example of Switzerland and the Federal Republic of Germany, ( which was, after all set up by the Allies after WWII) shows that such a Federation can function.
    The recent referendum was a huge chance to move in that direction and we are all the poorer for having missed this opportunity.

  24. wonderful to find a blog with some intelligent and thoughtful debate rather than the inane ranting and name calling that seems to fill what is rather ironically termed social media. the invoking A50 point is really interesting and not to my mind merely a procedural formality. Speaking as a lawyer (though not a constitutional expert) I was flabbergasted to see that the Governments opening step in “taking back control” was to argue that its skeleton arguments in the litigation as to whether triggering A50 needs an Act of Parliament should be kept secret. So much for democracy and transparency which as I understand it are two of the Brexiters main gripes with the EU! Hooray for the separation of state and judiciary and well done the judge who tossed that one in the bin. My own sense is the government is simply wrong on the A50 point but we will see.

    1. Agree; I deactivated my twitter account, sick of being called puerile names and having wildly inaccurate assumptions tweeted about me just because I am a moderate “lefty”, who is supportive of the public sector. I even had to seek legal and police advice, because a twitterer alleged that he had reported me to the police, essentially for some banter and “micky taking”, nothing remotely abusive or threatening. I note that he recently tried to engaged with DAG… Regarding “Brexit”, why is TM the PM waiting until the “end of March” to pull the trigger? Dangerously close to the 1st April… I note that Marr refrained from asking a leading Q about the pending litigation regarding Article 50 and the trigger pulling procedures. Is the proposal to “repeal” ECA etc a “smoke and mirrors” exercise to make it appear that something is being done re “Brexit”?

  25. Parliament voted on, and approved, a referendum allowing the British public to determine whether we should leave the EU, as previously pledged in the Conservative manifesto.

    They did not make the result binding on the government, nevertheless they did not require parliament to go back to them to ratify the result either.

    In fact, if one assumes that the government must go back to parliament to implement the result, then one would be assuming that the whole referendum was a massive insult to the UK electorate. If parliament wanted to take the decision, they should just have taken it, or required the government to go back to them, in which case we wouldn’t have wasted our time voting.

    In reality the referendum on leaving the EU was a manifesto pledge by the government, and that referendum, approved by parliament, clearly gives the government a clear mandate, and even obligation, to act on the result.

    Furthermore, the ratified treaty that implements Article 50 makes it clear that once we inform the EU that we have decided to leave, then after 2 years we will no longer be members.

    So we only need to tell the EU that we have decided, and the formality of the process of leaving was itself approved by parliament at the time of ratifying the treaty.

    So, all that now leaves to parliament is the approval of any new relationship with the EU proposed as a result of negotiations.

    If the government reaches an agreement with the EU, about a new relationship, then that new relationship will need to be ratified by parliament. Parliament can reject that new relationship.

    But if it does so, we we still be outside of the EU. Parliament would be electing, by rejecting a proposed relationship, to take the hardest form of Brexit available. But it’s good that they should have that option.

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