Apparently, nobody, but nobody, is willing to publicly contemplate a re-running of the Brexit referendum in the same way the Nice and Lisbon treaties referendums were re-run in Ireland. As of now, the idea is toxic. And no contender for political high office is willing even to mention a re-run as a possibility.
And so it seems that the withdrawal of the UK from the EU is an inevitable process being run on political auto-pilot. All that is in issue now are the terms.
So it seems. But is it as it seems?
Unlike Ireland, the UK is not a plebiscitary democracy in which the citizens collectively are the sovereign power. The theory of the UK state is that the Westminster parliament is the sovereign power (or, in strict theory, that the “Queen in parliament” is sovereign). That may seem a slightly mediaeval theory, but the fact remains that the Brexit referendum was an advisory poll and legally it has no more status than a state-sponsored opinion poll.
In the end, a Westminster majority will have to enact the laws providing for a UK secession from the EU.
Article 50 of the Treaty on European Union provides that the Treaties will “cease to apply” to the UK two years after the formal notification of the UK intention to withdraw or, if there is a negotiated agreement to withdraw, at the time specified in that agreement for its entry into force.
This means that once the UK finally and formally notifies the EU Council of its intention to withdraw “in accordance with its own constitutional requirements” the clock starts ticking, and unless there is a negotiated exit agreement arrived at within two years or such further period as the remaining member states unanimously agree, the UK will be out of the EU at the end of the 2 year period.
If there is a negotiated exit agreement, the UK will leave at the date specified in that agreement as the date when it comes into force. Such a date could be within or without the 2 year deadline.
This raises the question: “Precisely what has to happen in UK constitutional law to enable the UK to formally notify the EU Council of a UK decision to withdraw?”
Has parliament any role in deciding on a notification? Or is it now a matter solely for Her Majesty’s Government?
Could a majority at Westminster, whether by law or by resolution, establish a right to approve in advance any such notification?
Since Article 50 seems to give the UK alone the choice on when, if ever, it notifies the EU Council of its intention to withdraw, is it conceivable that a UK general election might precede notification? Could Theresa May trigger an election to seek a political mandate to give parliament the moral right, in addition to the legal right, to decide whether and when to make a formal notification.
Boris and Michael have got what they wished for, with the slight exception of political power. I do not believe that even the power of the Murdoch group can remedy Gove’s charisma deficit. “Another fine mess you’ve got us into” from the political equivalents of Laurel and Hardy. Laughable if it weren’t so serious.
Perhaps a Remain majority as such could yet be elected. Maybe the UKIP surge would be matched this time by a Lib-Dem surge. Maybe the ScotNats could hold the balance of power. It can’t be ruled out- particularly with a collapsed Labour party.
One of the most striking features of recent days has been the German decision to give the EU breathing space on Brexit. Prior to that the German Foreign Minister had reminded most of the EU of just what is wrong with the EU by arrogantly convening a meeting of the “Original Six” to discuss the Brexit outcome. By what calculus, except the most arrogant and over-weaning, did Luxembourg deserve to be invited in the place of Warsaw, Budapest, Prague, Madrid and, even Dublin?
Juncker, Hollande and others, in their welter of demands, threats and foot-stamping, forgot a basic rule of politics: “Before using mouth, ensure brain is engaged”.
Their shrill and idiotic clamour for an immediate UK notification, and their childish, petulant statements to the effect that there could be no negotiations until the UK notification was made, really underline their uselessness as serious politicians and statesmen. We are ill-served by a generation of political second-raters.
There is no good reason for the member states not to talk to each other ahead of notification. And although Article 50 fondly imagines a formal bilateral negotiation process in the event of a withdrawal, there is absolutely no good reason why there should not be extensive and intensive multilateral diplomacy between all the member states, including the UK, in advance of notification and even after notification.
After all, any exit agreement would have to command QMV approval at the Council. To achieve that approval, there is no reason not to have multilateral diplomacy between all the member states including the UK.
Does anyone believe that there will not be quiet talks between London and Dublin? Or between London and the Hague, Copenhagen, Warsaw, Prague, Bratislava, Vienna, Stockholm, Nicosia, Valetta, Rome and Madrid? Or between London and each of the ”Original Six”?
Let’s get real. No selected Belgian diplomat (as planned) can be given charge of the process to the exclusion of multilateral diplomacy.
In the real world, as distinct from the delusional world of card-carrying Euro-federalists, every member state has some form of skin in the game. A united EU negotiating front in dealings with the UK is impossible. Different member states have differing amounts of skin in the game, not least Ireland. And they are not going to sublimate their interests in pursuit of a single negotiating position chosen by Merkel, Holland and Juncker.
That is why Ireland must fight for its own interests now. Noel Whelan this week rightly emphasised the need for Ireland to collectively focus on the crisis we face.
When I have written here in recent weeks that the UK is our closest EU ally and one that we cannot afford to lose, I spoke from seven years’ hands-on experience as Attorney General and as Minister participating at EU Council level. Our tax autonomy, our legal system, our concepts of liberty and of ultimate sovereignty are all at issue in the wake of a UK departure. So also is peace and reconciliation on this island. We badly need the UK to remain. A close Norway-style relationship between the UK and Europe is far from being a substitute for protecting our interests at the EU Council table
All you have to do is to remember the vindictive lunge at our collective throat by Nicolas Sarkozy in the form of an attempt to destroy our corporation tax veto in 2009, to understand the need for a dependable ally at the EU Council. And Sarkozy “hasn’t gone away, you know”. Malheureusement!
The bullying we received at the hands of the ECB in the financial crisis, and the contrasting willingness of the UK to bail us out at that time should not be forgotten. Who will help us the next time?
So I hope that Brexit will not yet come to pass. It may seem a fond hope for now. But it is a fervent hope.
Micawber-like, something may yet turn up.
Perhaps, as the dust settles some UK realities may become clearly visible. There never was a post-war golden age for the UK. It was never lost. Brexit may yet be seen as a visible harbinger of perpetual decline – an anxiety nightmare in which the British people see themselves constantly stumbling up a down escalator. A seeming collapse in UK investment may not be prevented by interest rate cuts. Budgetary cutbacks in the autumn and growing economic gloom may yet embolden the majority of elected politicians to see the Brexit vote for what it was, and to see its consequences for what they are and what they will be.
In a week of surprises and shocks, why should we think the surprises are over?
While it might be naïve now to “expect the unexpected”, and while we must obviously prepare for the expected, it is never too late to hope that reason will prevail, and that anger and petulance on both sides of this week’s debates will give way once more to reason on all sides of this unfolding calamity.
We aren’t condemned to calamity like post-Sarajevo Europe seems to have been in the summer of 1914 for want of diplomacy and compromise. There is nothing undemocratic in reminding the UK that it still has options. There is nothing unrealistic in demanding a new flexibility from the EU, its member states and institutions. Keeping our collective best interests in focus is never a bad idea.
Brexit can and still might be averted in the interests of everyone.