10th April 2018
There are many Remainers who dispute that there is any “mandate” for Brexit.
The referendum was advisory, they contend, and in any case there was only a small majority. They will also point to (denied) allegations of serious irregularities about the Leave campaign. And, including the non-voters, the majority of the population did not vote for Brexit.
They perhaps do have a point, but that is not the point of this post.
This post accepts there was indeed a mandate.
The questions posed here are (1) what is the scope of that mandate and, once its scope is determined, (2) when will that mandate be discharged?
Before we can answer those questions, however, we need to be clear as to what a mandate is, and is not.
In general and political terms: a mandate is an instruction: a thing which is mandatory, a thing you are mandated to do.
In UK politics, the notion is that such a mandate usually comes from a political party having won a general election on a published manifesto.
The party then has a mandate to implement the promises in the manifesto.
This sort of mandate is not strong: manifesto promises can be disregarded, and even reversed. For example, the poll tax was in the 1987 Conservative manifesto, and was reversed in 1990.
General election mandates are thereby quite weak stuff. (The only practical use is that this sort of mandate means the House of Lords will not delay or block measures set out in a manifesto of the a party that wins a majority.)
Mandates from referendums (correct plural…) are different. Even when the result is advisory (that is, there is no direct legal or constitutional consequence of the result), the mandate has a certain political force unlike a general election result.
There was a dedicated referendum on a specific question. The answer cannot be shrugged off as easily as an unwanted promise in a broad manifesto.
But the problem is that with mandates from referendums, there is no natural expiry date. A mandate from a general election lasts only until the next general election.
A mandate from a referendum, however, may not go stale. Unless there is a further referendum, there is no obvious way the mandate can come to an end, other than being discharged. Even a general election – which would be on a range of issues and policies – would not mean a referendum mandate comes to an end.
So unless it is somehow reversed, a referendum mandate needs to be discharged: what has been instructed needs to be carried out.
The mandate for Brexit
The mandate for Brexit flows from the referendum.
The referendum question was whether the UK should remain in, or leave, the EU.
On 29 March 2019, by automatic operation of law, the UK will leave the EU – unless something currently unforeseen and exceptional happens.
The UK and EU are negotiating a withdrawal agreement which would mean a “transition” period (in truth a standstill period) until at least 31 December 2020.
The UK will in effect remain in the EU even though technically it is no longer a member.
This transition means that the legal fact of Brexit (29 March 2019) is uncoupled from the practical fact of Brexit (31 December 2020).
In the early days of Brexit, the form of Brexit – hard or soft or whatever – presupposed that the legal fact and practical fact of Brexit would be close in time.
This presupposition made it easy to say that the mandate was for a soft or a hard Brexit – to interpret the referendum result as meaning more than the legal fact.
But now Brexit is to take place at law with there being no certainty as to what happens at the end of the transition period.
This makes it easier to contend that the mandate for Brexit will be discharged on 29 March 2019. The instruction provided by the referendum result will have been carried out.
What does the discharge of a mandate mean?
When a mandate is discharged, it comes to an end. The instruction is carried out.
This means that the mandate has no further purchase. Nothing else need to be done.
Of course, some Leavers will aver that the referendum mandate really meant not only the legal fact of departure on 29 March 2019 but also something else, which should happen at the end of the transition period. “Brexit plus” in a way.
But the connection between the legal fact and practical fact of Brexit makes such a position more difficult.
And if the mandate is discharged on 29 March 2019, and thereby has no further purchase, then what happens at the end of the transition period is on a clear slate.
My preference would be for an Association Agreement, whereby the UK remains part of the Single Market and Customs Union, even though formally outside EU institutions. A conversion of the transition agreement into a permanent relation. (I am not personally fussed if the UK is a formal member of the EU or not.)
Others may want the UK to rejoin as soon as possible. Some Leavers may want to have more divergence.
Whatever: each of these options can be addressed on their merits, and the transition arrangements mean that the “ring is held”. What will be missing, because it will be discharged, is a “mandate” which prioritises one option over another.
Why Remainers should think beyond 29 March 2019
Brexit may not happen. The politics may change, which means the UK does not leave the EU as a legal fact on 29 March 2019.
But if that outcome is unlikely, then the issue becomes what happens at the end of the transition period.
And that debate will be better if the mandate is regarded as having been performed. Each proposal can be assessed properly.
That is why I think those few Remainers disputing there was ever a true mandate are mistaken, like generals fighting the battles of the last war.
A stronger position for those who want the UK to rejoin the EU, and for those like me who want a close Association Agreement without formal membership, will then not to deny the mandate but to accept it, and then move on.
This is not to say that anyone should “get behind” Brexit. Don’t do that, kids. Only people who believe in Brexit should get behind it.
Instead let the Leavers have their mandate, and then move beyond it.
Unless Brexit is somehow stopped before 29 March 2019 the fundamental question becomes what follows the transition period.
And to accept the mandate is over and done with will place contributors in that debate in a stronger position than those who deny it ever existed.
The key is to properly scope and then discharge the Brexit mandate, rather than to deny it ever existed.
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