Waiting for Brexit – a note on contentions and biases

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:

ESTRAGON: Well, shall we Leave?
VLADIMIR: Yes, let’s Leave.

(They do not send the Article 50 Notification.)

— David Allen Green (@DavidAllenGreen) June 25, 2016

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

If the Article 50 was not sent today, the very day after the Leave result, there is a strong chance it will never be sent.

— David Allen Green (@DavidAllenGreen) June 24, 2016

Most significant political event today was something which did not happen.

No Article 50 notification.

And now less likely every day.

— David Allen Green (@DavidAllenGreen) June 24, 2016

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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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