UK withdrawal from the EU may be avoidable after all. Here’s how
The result of the referendum on 23 June at first seemed conclusive. A clear majority of the UK electorate had voted for withdrawal from the EU. Neither parliament nor any foreseeable UK government can safely or ethically ignore or defy the wishes of a majority of the people as expressed in a formal consultation by referendum. But there is nothing undemocratic about a decision by parliament, perhaps supported by MPs and peers of almost all political parties, to seek clarification of the terms and conditions of withdrawal that would be offered by the rest of the EU (rEU), including the framework of the UK’s trade relations with the EU after its withdrawal, before formally and irrevocably burning its boats by starting the formal withdrawal process. Parliament would then be within its rights in asking the UK electorate to decide whether it wished to confirm or revise its verdict of 23 June in the light of the new information then available about the conditions that would be imposed by the rEU if the new UK government were to go ahead with withdrawal. The key point is that all this could happen before the UK triggers that Article 50 process. Here is an extract from a briefing document produced by the EU parliament itself: it is not just wishful thinking on the part of grieving Europhiles:
The formal withdrawal process is initiated by a notification from the Member State wishing to withdraw to the European Council, declaring its intention to do so. The timing of this notification is entirely in the hand of the Member State concerned, and informal discussions could take place between it and other Member States and/or EU institutions prior to the notification. The European Council (without the participation of the Member State concerned) then provides guidelines for the negotiations between the EU and the state concerned, with the aim of concluding an agreement setting out concrete withdrawal arrangements. These arrangements should also cover the departing Member State’s future relationship with the Union. [My emphasis]
The crucial question about this scenario is whether the rest of the EU, including the Commission, would be willing to show its negotiating hand in the course of the “informal discussions” envisaged by the EU Parliament document in enough detail ahead of any formal Article 50 negotiations to justify the UK government and parliament in seeking a further expression of the British people’s wishes in the light of the new factual information about what withdrawal would involve. Those in the rEU who want the UK out, and soon, would try to insist that there should be no disclosure of the EU’s terms for UK withdrawal until the UK had triggered the Art. 50 notification process. But those who on balance want the UK to remain in the EU might well see advantage in giving us enough information about the conditions that the EU would impose to enable us to hold a further referendum (or possibly a general election) before triggering an Art. 50 notification, in the hope that a further consultation might reverse the result of the 23 June referendum.
A major consideration for most rEU governments is clearly that the UK should not be offered such generous terms of withdrawal and future relations with the EU that other members might be tempted to follow Britain out of the EU on similarly attractive terms. The beauty of the scenario suggested here is that the rEU would have the opportunity in the pre-notification “informal discussions” to outline plainly unfavourable terms calculated to persuade the UK electorate to reverse its decision of 23 June. These unfavourable terms might not only persuade the UK to stay in the EU after all (a decision over which the rEU would have no control and which it could not prevent, even if it wanted to): it would also act as a salutary deterrent to any other EU member state that might be considering whether to leave the Union.
An additional advantage of deferring an Article 50 notification until the rEU had outlined the conditions it would impose on our withdrawal, permitting a fresh consultation with the UK people, is that it would also allow time for the UK government to consult the Scottish and Northern Ireland governments about the implications for them of UK withdrawal from the EU, contrary to the wishes of clear majorities in both Scotland and Northern Ireland. Since the devolution legislation affecting both Scotland and Northern Ireland is explicitly posited on the UK’s continued membership of the EU, such consultation would be obligatory. If neither devolved government consented to the amendments to the devolution legislation which UK withdrawal from the EU would require, it would be questionable whether the UK government could properly go ahead with withdrawal without the two devolved governments’ consent. The very fact of consultation with the two devolved governments would draw public attention to the enormous problem that a UK EU withdrawal would cause to relations between Ireland as an EU member and Northern Ireland which would not be: the border between the two, currently entirely open as between two EU member states, would become a border between the EU and a non-EU country, requiring border controls along its whole length. The effects on Ireland’s trade with the UK would also be potentially extremely damaging to both countries. If Scotland contrived, however improbably, to remain in the EU after the UK had withdrawn, the same things would apply to the border between Scotland and England – an equally unappetising prospect. Awareness of all these complications might help to persuade significant numbers of those who had voted for Leave on 23 June to reconsider their positions if offered a second opportunity to cast a vote.
Immediately after the referendum on 23 June, Jonathan Powell was on Newsnight proposing a general election on the issue of UK membership of the EU before anyone cut off the options by triggering the Article 50 notification process. It sounded far-fetched at the time. Now it begins to look much more plausible and attractive.