8th October 2018
We are now only a few months away from 29th March 2019, which is when by automatic operation of law the United Kingdom leaves the European Union.
(There are ways that this date may get delayed, and it is even still possible Brexit could get cancelled altogether. But a delay or cancellation currently looks unlikely.)
This imminent departure is the legal truth around which politics is now revolving, or should be revolving. It is the starting point of any understanding of the UK’s current predicament: “Marley was dead, to begin with. There is no doubt whatever about that. The register of his burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Scrooge signed it.”
This exit of the UK from the EU has been a legal fact since 29th March 2017 when the Article 50 notification was served on the European Council. The notification was valid. There is no serious doubt about that. The Supreme Court insisted on primary legislation, Parliament passed the primary legislation enabling the Prime Minister to make a notification, a notification was drafted, and the Prime Minister signed it.
A legal timer started its countdown.
The legal fact of the UK’s departure on 29th March 2019 is perhaps the only fact about Brexit about which one can be sure (though that fact can change). Everything else is uncertain.
Looking at British politics, however, one can get a sense that this fact is not properly appreciated.
There is, for example, what can be (no doubt unfairly) called the Brexit referendum re-enactment party, a bit like the Sealed Knot battle re-enactment enthusiasts but without the period costumes.
The intention of these campaigners is to discredit the result of the 2016 referendum, so that the perceived “mandate” is extinguished.
They have some good points: the Leave campaigns breached the law, false promises were made on the sides of buses and many other places, and people were misled into voting Leave when, had they known what was at stake, they would (or should) have voted Remain.
– the 2016 referendum followed a 2015 manifesto commitment by the party which won that general election;
– the 2016 referendum had as its legal basis a dedicated statute passed by Parliament and its question was approved by the Electoral Commission;
– the European issue has dominated UK politics since at least the late 1980s and has caused (partly or fully) a sequence of political crises and problems and so it was an issue which needed to be resolved one way or the other;
– there was a lengthy campaign where the government used a considerable amount of public money in its campaign for Remain;
– the dangers of a Leave vote were pointed out in the campaign (even if dismissed as “Project Fear”): and
– the vote was still for Leave on a heavy turn-out.
The glaring question is not how Leave won the referendum but why Remain lost.
The referendum vote was, of course, not binding. It was advisory (a point which I made at the FT before the vote took place). It would need parliamentary approval. The vote was not enough.
And so there was – correctly – litigation to force the government to obtain parliamentary approval.
But when this parliamentary approval was obtained, this still was not enough for many opponents of Brexit.
The 2016 referendum result had to be discredited by other means.
Another feature of current Brexit politics is the blame game. This is popular among Leavers.
The blame mongers fear that the Brexit the UK is about to experience will not be pleasant.
This is not their Brexit.
But just as some Remainers want to pretend that the referendum result never really happened, these Leavers want to pretend that a successful Brexit was viable.
Any Brexit, especially one done at speed and without preparation or thought, was not going to go well.
And so either it would have to a Brexit existing in name only or it would be a catastrophic hard Brexit, with no continuity at all.
There was never enough time, or (frankly) inclination, for there to be any other outcome.
The ones to blame are those who supported the Prime Minister’s premature Article 50 notification: the MPs who voted it through and the pundits who clapped and cheered. They all should have known better. Those are the guilty men and women, to allude to a once famous book about a policy failure.
Once that notification was made then nothing good or worthwhile was likely to come out of Brexit.
(And that is why I once thought no government would be mad enough to send the notification. I was wrong.)
So we have a mandate which cannot be ignored and an approach to Brexit which cannot go well.
The UK has got itself into a bit of a problem.
The irresistible force of political legitimacy and the immoveable object of policy reality.
What if anything can and should be done?
There are Remainers who will fight the UK’s departure to the very last day. In a way, they are to be commended, and they may still prevail.
But there is an alternative approach.
There is no obvious way to rid the UK of the referendum mandate, other than allowing it to be discharged.
Even a further referendum (the result of which nobody can be certain) would not be enough, especially if there is a lower turnout. And there is probably not enough time now for the primary legislation required for a new referendum before March.
One could hope that Parliament could assert itself, and go against the referendum result, but Parliament had its chance to “take back control” with the Article 50 legislation, and Parliament blew it.
(This is not to say that the 2016 referendum result is absolutely binding. No electorate can bind another, and a referendum result is either democratic or irreversible, but not both. But I cannot see any way the 2016 referendum can now be reversed in practice.)
On 29th March 2019 the mandate will be discharged. The result of the 2016 referendum will be honoured. The UK will be out of the EU.
And then what?
What follows Brexit may be longer-lasting than the UK’s membership of the EEC/EU. The UK’s membership will have been 46 years, the next arrangement may be even more durable.
At the moment, however, few people are putting any practical thought in to what follows Brexit.
We have instead the referendum re-enactment players and the blame gamers.
In terms of substance, rather than form, any future arrangement can keep the UK in the EU’s customs area, and can allow the UK to (in effect) be part of the single market. And as the mandate will have been discharged the referendum result will not (or should not) have any further purchase.
On this basis, it would seem sensible to encourage the UK to enter the withdrawal agreement on offer – the so called “transition period” is in reality a continuity provision.
And after 29th March 2019, the aim would be to convert the transition period into a permanent association agreement.
I sometimes call this a “Burma Brexit” after the British Army’s dignified retreat in World War II which was skilfully converted into a impressive victory.
Many Leave politicians will not be able to counter this, as it requires a grasp of detail which few have shown, and in any case their mandate will have been discharged.
So rather than hoping for (and revelling in) disasters and setbacks, a wiser approach of those who value the UK’s ongoing relationship with the EU is to support the government’s attempts to get a withdrawal agreement in place.
A “no deal” Brexit will make a close association agreement far less likely, as the best basis for such an agreement will be the so-called “transition” terms themselves.
Of course, events may overtake this. Brexit could still be delayed or cancelled.
But on the basis of things as they are now, we should be encouraged by the title of the book by the architect of the Burma campaign: Defeat into Victory.
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