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]
http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf
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.
Brian
Please, provide this wisdom to the people of Britain, perhaps via the The Guardian.
Exactly the sort of nasty problem that needs a seasoned diplomat to come riding in – like a subtler form of cavalry – to rescue us from…
So good thinking Brian! Any way will do, however rule-bending, if it lets us wriggle out of the absurd and undeserved situation we’ve been landed in by people acting in irrational anger when faced with illogical choices. What a mess! The damage and historical regression it could blight Ireland with, for example, is only a microcosm of the damage it could wreak on a much larger scale on Europe as a whole – and much further afield.
Any way which would give people a chance to think again, play for time – or whatever it takes – would surely get a much bigger majority than 52-48. And given the recent performances of our politicians, I’ll say frankly that if such negotiations are to take place, I hope the diplomatic input might be more in evidence than it seems to have been recently.
I heard Jonathan Powell’s interview. He failed to mention the significance of the Fixed Term Parliament Act that makes any General Election before May 2020, well, rather more difficult.
I fear that it is highly unlikely that the EU would, given its cumbersome decision-making process, agree to show its hand to any real extent prior to the UK activating Article 50.
Even if they did I cannot see there being a realistic prospect of another referendum since there would be widespread accusations that this was simply a device to thwart the expressed view of the people. It might, however, be possible to use the provision for a general election to be called prior to the expiry of the five year fixed term. Under the 2011 Act this can be done ‘if a motion for an early general election is agreed either by at least two-thirds of the whole House or without division”. The problem here is that the Labour Party are likely still to be in such disarray and therefore in no condition to fight an election that they would resist any such measure.
Given Article 50 requires a ‘decision’ to leave the EU to be made in accordance with the members’ constitutional requirements… Do the devolved parliaments of Scotland and Northern Ireland have a legitimate challenge to any formal constitutional body, including PM Royal Prerogative making a formal decision to leave the EU?
Can I echo Jeremy’s point about the EU showing its hand, and extend it by suggesting the EU might not have “a hand,” as such, to show?
We are rather concentrating on the dynamic and stressful situation on our side of the hill. The situation on the other side of the hill is equally problematic, perhaps more so, with a political calendar full of events which may express it.
The main thing on which most in the UK can agree is not to rush. Determining when the formal process begins of negotiating our way out may be our only card at the moment, but it is powerful card. Not playing it keeps some of our stresses contained, but permits stresses among our partners (?) to build.
l
Brian writes: I remain rather less pessimistic than either Paul or Jeremy about the scope for eliciting in the “informal discussions” that can and clearly will take place in the next three or more months between the UK and all elements of the EU a reasonably detailed indication of the kind of relationship between the UK and the EU that the EU envisages after the UK has left the Union, and of the kind of relationship that the UK will aim to establish. For example, are we going to seek to remain members of the single market and will continuing membership be on offer? If so, on what conditions — especially as regards free movement of people? If not, what kind of access to the single market shall the UK seek and what kind of access will be on offer? If by an UK-EU trade agreement, will that involve tariffs on each other’s imports? It may be that neither side will want to commit itself irrevocably to firm answers to any of these questions. But both sides surely share a common interest in making available to the British people enough information about the kind of conditions that will be imposed on our departure and on our future relations to permit a further consultation, whatever form it might take, not this time on In or Out, but on whether or not the terms on offer for Out, to the extent that these are by then made known, are acceptable to them . It must be in the EU’s interests as well as (obviously) in ours to provide an opportunity for the UK electorate to accept or reject the broad outline of what would be the consequences of going ahead with an Article 50 notification leading inexorably to a British exit. If the likely terms are rejected, either in an election or in a referendum, the new British government will have the option of deciding not to activate Article 50, in which case the UK remains an EU member on the same terms as before. That might not be the likeliest outcome, as seen at this very early stage: but a very large part of the EU would surely regard it as the best possible one. So why should they rule it out by refusing to give even a broad indication of their intentions until we have irrevocably committed ourselves to leaving, however damaging the conditions on which we do so? If they do, what are the “informal discussions” over the next three months or more going to be about and what is their purpose? You may of course be right and the EU, which will unquestionably use the time to agree on its Brexit negotiating objectives and tactics, may perversely keep them secret (if it can!) until the UK has triggered Art. 50 and burned its boats. But there’s nothing to be lost from trying to elicit the information that we need, and much, potentially, to be gained if we succeed. We should not be deterred from doing whatever we can to rescue the country from a dismal future by the possibility of failure.
Postscript to my comment of a few hours ago: I see that Mrs Merkel, I/C EU, has now said that there can’t be any negotiations about Brexit until Britain has pulled the Article 50 trigger. If that turns out to be her last word, and if it applies to the pre-Article 50 “informal discussions” envisaged in the European Parliament document quoted in my post as well as to formal negotiations, she would seem to have shot my fox. But these are very early days, and as options and objectives begin to crystallise, a flexible interpretation of her pronouncement may become possible — and perhaps something has been lost in translation. Meanwhile pressure for “a second referendum” seems to be mounting in various quarters, mostly with very little idea of how this could be justified, and it’s much too early to abandon the idea. (If I was a huntsman, which I’m emphatically not, I would take an exceedingly dim view of anyone who shot my fox, however inedible.)
I think the most sensible thing to do would be for all parties to try to swiftly reach a deal which is as close to the status quo as possible while still ‘respecting’ the referendum result. Anything else is going to result in more mutual damage in varying quantities. The problem is the EU leaders are part of a group that feels it ought to be taking a tough line, and are also playing to their domestic audience – this might result in them doing something destructive and irrational. I’m sorry to be pessimistic – but that’s what seemed to happen with Greece, and the resulting situation was that Greece had its economy destroyed, and the German taxpayer lent a lot more money to Greece that they aren’t going to get back. Everyone lost. Although this sort of dysfunctional group decision making is one of the more compelling arguments for the UK being better off out, it also means that the act of leaving is liable to be pointlessly destructive.
Your previous quote about Article 50 seems to envisage informal negotiations prior to notification. The most sensible thing would surely be for the UK and the other countries to have private, non-binding discussions to reach a rough agreement without being locked into public positions which result in stalemate. Once a reasonable understanding had been achieved, the UK could kick the formal process off, and the proposals could be presented to the public in a reasonably coherent and unified way. If I was Germany and I wanted to achieve a ‘Norway’ style result then that’s the course I would be promoting. Their public statement ruling out of this type of progress seems a very bad sign – that they are determined to call the UK’s bluff (again) and won’t be co-operative or pragmatic about it.
The main potential outcomes:
1. Article 50 never gets triggered. The UK remains part of the EU with diminished popularity and status. Leave voters in the UK feel fobbed off – but they are in the minority (just) and the less influential half too.
2. UK becomes a ‘Norway’ style affiliate. This is what Boris seems to envisage, but I don’t see how the free movement requirement is going to be reconciled. Also getting the trade agreements etc sewn up quickly enough will be tough. Some countries export a lot to the UK (Germany). Others don’t, and I think they are likely to want their pork barrel as a price for agreeing to the deal. EU countries will want the UK to pay for those sweeteners, which won’t be very palatable to those who thought we were going to save £350m per week.
3. The UK starts the two year process and fails to reach an agreement with the EU. We end up with WTO default and a fair quantity of acrimony. The brighter side of that is with a devalued pound we are still competitive. EU trade will shrink but non-EU trade will probably rise.
Outcome 2 seems the most sensible but also possibly the least likely. It depends on a lot of people making compromises that they probably won’t. Some wild conjecture here – Teresa May and Boris will be the two that will be put to the Tory membership (because neither Leave or Remain have enough support to select two candidates from their camp). From what I understand, the majority of Tory members support leave, so they will pick Boris (unless there’s been a lot of second thoughts). This is where it gets harder to guess. Boris seems to have lost his conviction since the result. Will he go for broke – aim for 2 but end up with 3, or will he drag his feet, put a vote to the Commons which he loses and is relieved to find himself unable to proceed with the leaving process – we end up with 1.
I don’t think there’s much chance of contagion – UK is not in the Euro and is very large, and it’s still going to be a very painful process, can’t see any other countries following us in the near future.
J-C Juncker has just announced in the EP he ‘ has banned all European Commissioners from holding any discussions with UK government… “No notification, no negotiaitons’
I rarely disagree with you, Brian, but – at the risk of heading into the Moral Maze – I cannot accept that it is ‘ethically’ unsafe for Parliament to ignore the simple majority obtained by the Leave camp (political safety is obviously another matter). I assume your argument is that this holds because a simple majority wins was the understanding on which the misconceived and ineptly constructed exercise was held, and I admit it is a good one. On the other hand, quite aside from the enormous variations in the breakdown of the vote by region and generation, the majority achieved of 51.9 per cent – with the assistance of a press campaign of breath-taking mendacity – was very slender indeed; it could have been ‘won’ on a vote of 50.1. I am, therefore, more inclined to agree with Geoffrey Robertson QC, who has written in the Guardian that all the referendum result signifies is the advice to Parliament that ‘the country is split almost down the middle.’ In sum, I reject the argument that it is not ‘ethical’ for Parliament to ignore the referendum largely because the Leave campaign only won on a technicality and because it is not immoral to dismiss advice.
PS How nice to hear from you again, Jeremy, even if only indirectly!
May I ask a question of the practitioners? When governments say there will be no negotiations, academics generally take this to mean that, should governments wish to talk to each other, there will be informal or secret negotiations. What is it likely to mean when governments say there will be no informal negotiations? I rather assume that this means that the barriers to talking will be higher, but not insuperable. Is it mere academic cynicism and inexperience that let’s me assume that low key bilateral message will be flying thick and fast at the moment.
Brian writes: I am grateful for all these further comments and questions. To respond adequately to them and to reflect on the extraordinary developments of the past 24 hours I need more space than another comment box here can provide. So I have submitted a new blog post for your consideration, containing responses to most of the points made and questions posed here. Please now see https://barder.com/4715. Comments there very welcome, as ever — but no more here, thanks.