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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