A false hope for Remainers

26th November 2017

Since the referendum result there has been a lack of realism about Brexit by the UK government and many Leavers.

The current difficulty about the Irish border are one of many examples.

But lack of realism is not a monopoly of those wanting the UK to depart the EU.

There is wishful thinking – indeed, magical thinking – by those who want the UK to remain in the EU, or at least by those who want to have a Brexit significantly “softer” than that which is currently likely to happen.

The (grim or glorious) truth is that the UK will be leaving the EU by automatic operation of law on 29 March 2019, unless something exceptional happens to change that legal position.

On the face of Article 50, the departure date can only be changed in two ways.

First, the date can be changed to a later (or even earlier) date if that is part of the overall Brexit agreement.

Second, the date can be postponed with the unanimous consent of the UK and EU27.

There is nothing express in Article 50 about the Article 50 notification being capable of revocation (and there is no judicial decision on the point) – though many commentators agree that a revocation sent in good faith is likely to be accepted by the European Council and, if litigated, upheld by the European Court of Justice.

But unless the date is altered in accordance with one of the two ways set out in Article 50, or unless there is a revocation which is agreed either by the European Council or the European Court of Justice, then the UK leaves the EU on 29 March 2019.

The implication of this is that there is nothing the UK can now do – directly – to stop or even pause the process.

What power the UK had went with the Article 50 notification.

The most the UK government can do now, if it wanted to pause or halt the process, is to ask the European Council (and, if refused, the European Court of Justice) and hope.

There is nothing which any organ of the UK state – the government, the courts or parliament (still less the devolved administrations) – can do to directly stop the clock.

The clock is now outside the UK’s reach.

The best that could be done is for the UK to ask the EU one way or another to stop the clock.

A false hope

This futile position has not prevented those opposed to Brexit (or the government’s policy on Brexit) from seeking alternative ways to end or slow down the process.

One example was the reaction to this tweet yesterday, which was heavily RTd by influential Remainers on Twitter.

The piece it links to is here and it is titled:

Exclusive: Brexit Referendum ‘May Need to Be Redone’

The words in quotation marks are a little odd, as they do not appear in the text.

The piece does say “that UK intelligence is minded to recommend to Theresa May’s government that the Brexit vote be redone, as it is not thought that the vote was ‘free and fair’”.

A mere recommendation is less compelling than a necessity, so the title does not even match the text.

But the overall impression the title and the piece gives is that there would be a requirement – a “need” – for there to be a repeat referendum if the “sources” are correct in this information.

At this point I should say that I happen to know and like Louise Mensch and so nothing in this post should be taken as personal hostility to her.  I do not know about, or even understand, most of what she now tweets about regarding US politics and Russia.

But I do happen to know a little about the law relating to the Brexit referendum.

And this means I can say that the contention of that piece is legal twaddle.

Even if those “sources” were correct there would be no legal necessity for there to be a repeat referendum.

The 2016 referendum was advisory.

There are no laws in place for there to be a repeat referendum, or even to invalidate the result of the original referendum.

A repeat referendum would require brand new primary legislation – and that would have to be passed by parliament.

It is not a matter for Theresa May or the government.

They cannot strike down the result of the referendum even if they wanted to, regardless of the supposed recommendations of security advisers.

There would be no “need” for a repeat referendum.

The heavily RTd piece does not provide a basis for it being a necessity, and there is no legal mechanism currently in place for a repeat referendum.

The article just gives false hope to those opposed to the UK government on Brexit.

This is not to say that the “sources” are incorrect on Russian money and influence – I have no idea, though it seems implausible.

But even if those sources are correct, the referendum result will still stand.

And the referendum result no longer matters.

Parliament voted to give the prime minister power to make the Article 50 notification with a dedicated Act of Parliament.

The prime minister sent the notification under Article 50 on 29 March 2017.

(Though there is another strand of wishful/magical thinking that asserts that the notification was somehow not legally valid – a sort of 2017 version of the warming-pan theory.  Even if there was anything to this claim it is hopelessly out of time, as well as contrary to what the Supreme Court said in Miller: “Parliament may decide to content itself with a very brief statute” etc (para 122). )

The Article 50 process has started.

The clock is ticking.

Impugning the referendum result makes no direct difference, legal or otherwise.

Reality and Remainers

The UK government’s Brexit policy keeps smashing into the walls of reality.

Much of what Leave said about the ease with which Brexit could be done, or the ease with which the UK could enter into new trade deals, and about many other things, were unrealistic.

But lack of realism is not just a fault of those on the other side of a debate.

Unless the Article 50 clock is formally stopped or paused, Brexit is coming and it will happen (all other things being equal) on 29 March 2019.

The only way the clock can be stopped or paused (or the deadline delayed) is if the UK government asks the EU to do so, and the EU agrees (either the European Council or, if not, the European Court of Justice)

That should be the focus of Remainers and others opposed to the government’s misconceived policy on Brexit.

Attacking the legitimacy of the referendum may perhaps have a indirect political effect – which may lead to the government making the desired request.

That, however, is still indirect.

The referendum could perhaps be discredited absolutely, and it still would not make any direct legal difference.

All this said, Brexit is not inevitable – it could be stopped or delayed, if the UK and EU wanted this.

But if you are a Remainer or someone also opposed to the government’s policy on Brexit then do not get your hopes up on the back of the basis of tweets like the one discussed above.

Stopping Brexit will take a lot more than that, if it can be stopped at all.

 

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32 thoughts on “A false hope for Remainers”

  1. While you mention laws a lot, remember that laws are made by people and aren’t immutable. Laws can be revoked, changed, rewritten.

  2. 1. A number of statements made prior to the referendum about what would happen if we voted to Leave have turned out to be incorrect. We have not lost lots of jobs. There was no recession. These were predictions that were made about the vote, not when we leave. What sanction is being proposed against those who made these incorrect assessments?

    2. What is the mechanism whereby this Russian money is meant to have altered the course of the referendum. Did they lie about us not being offered a suspension of Freedom of Movement? Were we in fact offered this? Did they make up quotes from Jean-Claude Juncker that there would be no further reform of the EU? Did they plant extensive reports on the European Commission website projecting explosive population growth in the UK if we remained? What exactly is it they are meant to have done?

    1. We have not lost lots of jobs. There was no recession. Because we are still in the EU. Loss of jobs and poor economy will follow departure as night follows day.

      1. As I made clear, the predictions were made about the aftermath of the referendum if there was a Leave vote, not leaving the EU.

  3. A faultless analysis. However, a scenario that could be entertained would arise if there was significant evidence of improper conduct during the referendum, particularly by a third party. It would be plausible that the UK government could ask the EU to suspend A50 notice since the referendum would have to be nullified and re-run because democracy had been subverted. The burden of proof would be high, but I doubt that the EU27 would reject such a request as a failure to do so would allow the democratic process in a member state to be subverted by external actors.

    Far more likely would be a shift in public opinion that the costs of Brexit outweigh the benefits. If this should happen (and there is some evidence to suggest it may be occuring), MPs would be at liberty to demand that the government listen to “the will of the people” and act to revoke A50. This scenario also holds if there is no prospect of a trade deal and a hard border with the Republic of Ireland, and ineed a hard “air” border with the rest of the EU carries with it the implications claimed for it by most observers (see the Port of Dover’s pitch to the Conservative Party conference).

    There is a limited time for people to understand exactly what “Brexit means Brexit” actually entails and act accordingly. A reasonable projection suggests that following the intended course of action will cost the exchequer £110 billionby 2025 – there are many better ways to spend this money and address the real reasons underlying the vote.

    1. I fail to see why the EU would want to stop the UK leaving. With us gone, ever closer union is far easier to achieve.

      The only way the process can realistically be reversed is by a second referendum. No-one has any idea how that will play out but I suspect that the prospect of remaining in the EU with no deal, the rebate removed, and it now absolutely explicitly clear that FOM will remain and the UK will be subject to ECJ rulings all over the place mean it may still be a vote to Leave.

      Would the “reasonable projection” be from the same people who projected a significant increase unemployment on leaving, and who for years have been predicting growth and productivity increases which haven’t materialised? Do they include a full cost-benefit analysis of continued mass immigration from the EU compared to a more selective process of immigration from the EU post-leave? Do they factor in extra growth from international trade post leaving? We all know the answer to those points. The projections from economists in a period of few changes have been hopeless, so there is no way their projections in a sea of changes have any relevance.

      And can I take this opportunity to state I have not been paid by any associates of Vladimir Putin to write this comment.

      1. An interesting perspective. Now let me see, in a second vote, Leave could not claim the following:
        £350 million per week for the NHS;
        A points based system for immigration;
        The rest of the world will be knocking our doors down begging for free trade deals;
        The EU will capitulate to any UK demands because they want to sell us BMW cars and Prosecco;
        An EU trade deal will be the easiest deal in human history;
        We will have frictionless trade with the EU and all the benefits of the Single Market and customs unions, but without paying for it;
        We can take back control of our borders (something we never lost);
        We can make our own laws (something we have always done)’ and we can restore the sovereignty of parliament – something it points out that it has never lost in the preamble to the A50 bill..,

        Yes, I can quite see that one going down to the wire a second time – perhaps Boris can find a double decker bus!

        1. Your analysis has the EU as being entirely about free trade with the UK retaining control over its borders and laws. In which case what are we arguing with the EU about? We could just accept their demands and give Brexiters like me what we have been searching for. And it isn’t clear why Cameron went to the EU to renegotiate the relationship if the EU did not curtail his powers in any way.

          I’m not a lawyer so I don’t know the answer but all parties are behaving as if remaining in the EU means laws ultimately being decided by Europe and control of our borders is not possible in the EU.

      2. Dipper: I live in N Ireland. Like Scotland and Gibraltar we voted to remain. The sentiments you express aren’t those found among local people, though the DUP likes to think it speaks for all, and is full-on Leave. (The DUP are that lot who prop up Mrs May; it’s widely believed that they are Leavers in the same way that the Foreign Secretary is — for political advantage, not because they really believe it.)

        Further, if there is to be a second referendum, remember that in the first one three of five polities were Remain. If it’s a simple majority, then England will always win; the rest of us have to learn to know our places.

        1. Do you vote on the basis of what would be good for England?

          Scotland has had a vote on becoming independent; Wales could have the same, and Northern Ireland could have a vote on a constitutional shift if it wished. At those times it is up to the rest of the UK i.e. England to put a decent deal on the table. We managed to do that with Scotland last time, and many in England would say Scotland gets a better deal than England. By such means does the union hold together. It is not a matter of people knowing their place, just that politics is about deals and votes.

          1. A curious situation could have happened. Suppose the vote was very close, a majority of perhaps 20,000 for Remain. We know that this would have been unacceptable to some.

            But, it could be argued that all of that ‘win’ was due to the votes of Gibraltar. What then? Is the UK, or England, to remain apparently against their wishes, because of a few people elsewhere?

          2. Dipper; thanks for the link. I did sit up for much of the vote, but didn’t remember this bit. It’s interesting that DD would have accepted such a vote; it’s very clear that Farage would not have.

            As for N Ireland going its own way, that is more complicated. The Good Friday Agreement sets out conditions. For instance, the Secretary of State can authorise a referendum if he/she thinks there is some chance of it succeeding. The SoS is always English, so not an entirely disinterested party. The local politicians can’t call a referendum.

          3. If the local politicians across the parties demanded a vote I’m pretty sure there would be one. As I’ve said on other posts the UK has no strategic interest in NI.

            Farage is a chancer, not a serious politician. He is an MEP but apart from that holds no positions of responsibility. Lots of people who supported leaving the EU find him a toxic individual. Sometimes people collectively use politicians to further their own ends, not the other way round.

          4. The comment about he UK having no selfish interest in NI comes from a speech by Peter Brooke, the SoS for NI.

            It was in reality a coded message to the IRA, that the British government would talk to them; it was intended as a sign of the government’s good faith. The IRA knew that something along these lines would come out, and this was confirmation. It was, in a way, the beginning of the start of the peace process.

      1. The OBR suggests that the exchequer will see £15 billion less per annum after Brexit (29/3/19); the “divorce” bill is at least £40 billion at the moment and suggestions are that it is inadequate. I guessed at £50 billion plus six years loss at £15 billion a year = £110 billion, by 2025. The exact figure is a matter of conjecture, but it will be enormous and the monies would be better spent in improving matters in the UK.

        @Dipper: Firstly, we are a UNITED KINGDOM and the UK government may be based in London, but is responsible for the whole nation, not just England (I am an Englishman). The EU does not form national (domestic) laws for the UK and never has – what do you imagine our MPs have been doing for forty odd years? The legislation that we enact in the UK which is of EU origin mainly relates to trading standards and environmental protection, and so on. The UK (until Brexit) has had a veto on any EU legislation of significance and helps to shape it.

        The EU as a state has no existence. It is a collection of 28 (currently) sovereign nations that take some decisions on common points of interest. The rehetoric about “ever closer union” is just that. Do you think that Germany, France, Spain, Denmark and the rest will ever cede sovereignty to a “Brussels” government? Their politicians are just as keen to hold on to power as ours are – do you see a “Free Catalonia” (for instance) agreeing to be ruled by the EU where it will not accept the rule of Madrid? I suggest that you haven’t really thought this through properly.

        1. “The rehetoric about “ever closer union” is just that”

          No. It is in the treaty of Rome. You haven’t been paying attention, have you?

          1. The clue is probably in the fact that the Treaty of Rome dates from 1957. In the intervening 60 years, the EEC has morphed into the EU and expanded to 28 nation states, yet there is no sign of the Federal States of Europe which you so plainly fear.

            The point I made is based on the reality of national politics and exposure to the UN. I have also been fortunate to attend several meetings where senior figures within the EU who gave open lectures to politicians, diplomats and interested members of civil society. Ever closer union is purely an aspirational statement – fine for your children’s children’s, children, perhaps, but not quite right for our current circumstances (60 years and counting). Synergistic advantages have and will continue to be exploited, but if you seriously believe that Denmark, say, will subborn its national interests to “Brussels”, might I suggest that you spend more time in the reality of international politics and relations?

          2. A key issue for me and many others was the question of whether the EU would remain a union of nation states (which would have been acceptable) or become a Federal super-state in itself. My view was that it was becoming a federal super-state and events since the referendum have strengthened that view. Full federation may be thirty years off but this was in effect the last chance to say no. A key indicator for me is that ardent pro-federalists have been taking a key part in negotiations, and EU anti-federalists have been notable by their silence.

  4. The issue of whether leaving the EU as a result of Article 50 automatically equates to leaving the EEA hasn’t been litigated yet, has it?

    1. Since we are speaking of Legal rather than political factors, this would be my question also and I would be grateful to know Mr Green’s opinion.

  5. You didn’t mention another option being proposed – and raising funds – which is to challenge the legality of the government invoking Article 50 without parliament having made a decision on the referendum result.

    Thus the government has not, in the words of Article 50, complied with the UK’s own constitutional requirements following an advisory referendum. Any thoughts?

  6. A major pillar of the British Constitution is that one Parliament cannot bind its successors. For example, the sitting Parliament is free to end fixed terms Houses of Commons, free to eliminate ‘reforms’ that were part of the 2010 coalition agreement.

    This Parliament or, more likely, the next is free before the March, 2019 date certain to revoke the triggering of Article 50.

    1. That is correct, as a matter of principle, but the default position will be to leave.

      Stopping the juggernaut would require:
      (a) another general election to be held before March 2019, and then
      (b) a majority in the new Parliament to vote to withdrawn the Article 50 notification, and then
      (c) the EU 27 to accept the withdrawal, and the ECJ not to prevent it.

      Now, (a) certainly seems possible, perhaps increasingly possible as time passes. I think (c) is very probable (does anyone dispute that?). But (b)? Which parties will campaign on a platform of stopping Brexit and win enough seats to be able to do that?

  7. If the UK has a unilateral right to revoke Article 50, then it would not be an “exceptional” thing to do so. If such a right exists then it is integral to the legal process – an option to be exercised, (in the direct control of the UK), and a matter for the operation of politics to decide to do so. And Kerr, Piris, Wyatt, and Edward think it is a right the UK has.

    However, no EU source has communicated any opposition to the revocation of Article 50 other than to insist it must not be used to gain time or advantage as part of a continuing effort to leave the EU.

    Therefore, it follows that a reverse course on Brexit is probably a relatively straightforward matter, procedurally, that likely would not require a referral to the CJEU. It would however, require political will.

    Whether or not there is anything to these claims of Russian interference and whether, if there is, they can be employed usefully to influence a change of course, nobody yet knows. But, it is not the only thing that may be employed. The electoral commission is re-investigating Voteleave campaign expenditure. It is more than merely possible that Voteleave – an organisation, which was supported by the membership of most if not all of the heavyweight Brexiteers in and out of the current government – has committed a criminal offence. If that is proved, it would not be a specious claim to assert credibly that our democracy was, literally, bought. Parliament may be exercised by that.

  8. Thanks for your blog postings on Brexit.

    I would like here to make one small contribution. Some context on Russian, including SVR or FSB, operations in Western democracies can be had from https://20committee.com/. I regard that site as noteworthy for the same reason as I regard “Jack of Kent” itself as noteworthy: 20committee.com is written by a person possessing relevant professional background. Here at “Jack of Kent”, we have a formally qualified legal scholar and legal journalist. Over at “20committee.com”, we have a sometime National Security Agency (USA) staffer, holding a relevant doctorate, from a reasonable Canadian university.

    I do put a caveat on record. From a strict “Jack of Kent” standpoint, 20committee.com supplies only general context (general background) for Russian operations. The 20committee.com author does not address details of Russian work in the UK. For such details, one would have to turn elsewhere.

    Respectfully, Toomas Karmo (in Estonian diaspora, currently in northern suburbs of Toronto; http://toomaskarmo.blogspot.com/)

    1. but again, what is it the Russians are doing? How does the money they spend turn it into votes?

      I’ve read that the whole Brexit thing is a Putin plan to weaken and divide Europe. On the basis that the EU has completely cocked up the renegotiation prior to the referendum and is now cocking up the negotiations making a walk out by the UK and a real frostiness of relations quite likely, surely we should be looking at how Putin is controlling the actions of the EU rather than influencing votes in the UK?

  9. Agree with all this except where you argue that the UK cannot stop the Article 50 process.

    Article 50 is written such that the withdrawal process is entirely in the hands of the departing member state. According to A50(1), it’s up to the member state how it decides to leave – we can do this however and whenever we like. According to A50(2), the member state simply has to notify the European Council in order to leave – we can do this however and whenever we like. The effect of the two-year period of A50(3) is that no other EU state or institution can prevent or set conditions on our withdrawal – we can leave however and whenever we like (taking into account the two-year delay for negotiating withdrawal terms).

    If the UK decides to notify that we are not leaving after all, then, in the spirit of Article 50, this is our decision alone, which we can make however and whenever we like, as long as we are still a member state. It is not in the European Council’s gift to accept or refuse the second notification. The process is in our gift alone. That’s the point of Article 50. Good, innit?

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