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By the editor, Sep 26 2019 04:00PM

Imagine that the Conservative Government had decided to campaign for Leave in the 2016 Referendum, and imagine also that the Liberal Democrats and the Labour Party had voted against calling the referendum in the first place, and campaigned for Remain. Imagine that the vote had gone exactly the same way: a 52:48 win for Leave.


It’s not fanciful in that scenario to imagine that we’d still be in the EU, following years of disagreement over what sort of exit should be pursued. David Cameron would have issued a notification under Article 50 (despite votes against by the opposition parties), and secured a withdrawal agreement very similar to Theresa May’s, which had been opposed by many in his own party. He might well have called an election at some point to strengthen his hand, only to find that he had weakened it. He might well have been toppled by a more avowedly hard-line Leaver from within his party, like Mr Johnson.


If all that had happened, and if either the Liberal Democrats or the Labour Party were now suggesting a policy of revoking Article 50, what would the reaction have been?


I doubt there would have been very many commentators claiming that such a policy was anti-democratic, unconstitutional, unprincipled, or extremist – as they are now. After all, these parties were clearly against the referendum in the first place, and campaigned against leaving. The referendum was legally advisory only, even though the Government committed to implementing the result - no one else did. The referendum and the implementation of the result would have been seen as “owned” by the Conservative Government (or both Governments, assuming the intervening general election). The fact that the Government had won the vote, but failed to implement the result after several years, would lay them open to the charge that they’d had their chance, and blown it – and it would now be entirely fair for other parties to propose cancelling the process entirely, following a new general election, which could give a new Government in a new Parliament a mandate to that effect.


What then is the difference between this scenario and the current situation that causes many people, including Remainers, to denounce the revoke position as anti-democratic, unconstitutional, unprincipled, or extremist?


I think the difference is that a referendum called and won by a Government, and opposed from the outset by opposition parties, would have been seen as having a much more limited mandate. It would have fitted more comfortably into our system of parliamentary democracy. If the Government had failed to implement the result by the time the next general election had occurred, the electorate could have chosen to give that party another chance to implement it, or chosen to give another party a chance to implement it in a different way, or voted for one of the opposition parties that would call a halt to it – and that would have seemed to be “business as usual” politically.


The 2016 Referendum, by contrast, is seen as having in some way transcended the normal constraints of parliamentary democracy. This is, I think, at least partly because the opposition parties agreed to the referendum being held, and initially agreed to abide by the result, even though it wasn’t legally binding. It isn’t considered as something wholly “owned” by the Conservatives.


The Labour Party and the Liberal Democrats were mistaken in supporting the referendum, and MPs in those parties who agreed that the result must be implemented, and voted for the Article 50 process to be initiated in March 2017, were mistaken too. But we all make mistakes, and learning to admit and correct them is a part of growing up – and ought to be an accepted feature of a mature democracy. MPs and parties can change their minds, and ought to do so if they become aware of facts that warrant it. Parliament is able to undo laws made by a previous one. That is a fundamental feature of parliamentary sovereignty, and there is nothing undemocratic about this: indeed it could be said that a prohibition on changing course is in itself intrinsically undemocratic.


I don’t wish here to minimise the enormous political difficulties of revocation, or the extent of the resentment that it would cause. What I am saying is that there is nothing constitutionally improper about it. The political difficulties have come about because of the particular nature of this referendum, and the way the political parties handled it at the time.


For those who think that the 2016 referendum has transcended parliamentary democracy, and consider that, as a matter of constitutional principle, either the referendum must be implemented, come what may, or requires another referendum to reverse it, then I think they need to answer some further questions. Firstly, what constitutional principle is being relied on to override the long-established principle of parliamentary sovereignty? Secondly, why is the 1975 referendum not respected in the same way – or, if it is, what constitutional principle allowed that referendum to be overturned, and how should that principle apply regarding this referendum? Thirdly, what is to stop Governments using other referendums in the future as a means of significantly diminishing or even destroying parliamentary democracy, as has happened in authoritarian regimes in the past?


Perhaps a lot of people simply don’t care. The mood of ugliness that has developed recently, which is being channelled by the Government - open contempt for the law, hints of violence, and appeals to the “will of the people” - signifies that parliamentary democracy is under threat, and sickening.


By the editor, Aug 15 2019 03:47PM


There’s a lot of gloom among Remainers at the moment. Many are now saying a No Deal Brexit is inevitable on 31 October, or that the general election expected soon is likely to provide Boris Johnson with a majority to pursue a hard Brexit in the years ahead. Some Remainers appear to have more or less given up.


There are good reasons to be pessimistic, but nothing is certain at this stage, and there’s a risk here that fatalism could undermine the prospects of remaining or avoiding the worst effects of leaving. Some reasons to be a little more upbeat are suggested below.


A. Is a no deal exit now probable?


1. It seems to me this still hangs in the balance. It’s still in the power of MPs to stop it, and it’s worth remembering that the overwhelming majority of MPs are against a no deal exit. Remember that MPs voted by an unexpectedly high margin of 41 to prevent prorogation being used to secure a no deal exit. The Tory backbenches now include many ex-ministers who have no incentive to help their Government, which is actively hostile to some of them. It’s also worth remembering that Mr Johnson is not an ideological hard Brexiteer (as his numerous contradictory statements and his voting record on Brexit demonstrate). Many in his Government aren’t particularly keen on a no deal exit either – including the minister responsible for no deal planning, Michael Gove. This could matter, because if there is a battle between the legislature and the executive over this, determination could be key.


2. One option to avoid the outcome is a vote of no confidence in the Government. There is much discussion about whether a caretaker Government could be formed in the aftermath, and dismay about MPs squabbling over who would lead it and what its remit would be. It does seem to me at the moment there are considerable difficulties here. But things could change as 31 October gets closer. For example, there’s a difference between committing to something now that could harm your party or your own interests as an MP (think of Tory rebels particularly), and agreeing to something in the final few days of October, when there’s a potential constitutional crisis, a national emergency, and no other options left.


3. Another option is for Parliament to pass legislation requiring the Government to seek and agree to an extension under Article 50. Difficulties here have been identified: the obvious means of enabling legislation appears, under Parliamentary procedures, to require the Government to agree to it (see https://spinninghugo.wordpress.com/2019/08/12/cooper-letwin-ii-may-not-work/). However, firstly, there appears to be a reasonable counter-argument to this interpretation, even if it appears to be less favoured. Secondly, bear in mind that the “correct” reading of these procedures is only part of the picture. This isn’t an ordinary legal question where judges (identities unknown) will determine the answer. The person responsible for ruling on these procedures is the Speaker - who is a politician. Given his past form, the Speaker might agree with the alternative interpretation, especially if he considers that Parliament is being deliberately, and unconstitutionally, sidelined by the Government. His view – rather than the view of legal experts – is ultimately the only view that counts. In any event, even if the Speaker agrees that the procedures are restrictive in this way, Parliament could decide to amend its own procedures. That may not be easy, but no one has yet shown it to be impossible.


B. General Election


4. In another scenario, Mr Johnson calls an election before the UK leaves the EU (perhaps claiming that he’s been forced to do so by an obstructionist Parliament). There is a feeling among Remainers that he’d be likely to get a decent majority of seats, given that a significant minority of the electorate support a no deal exit (around 40%, depending on the poll and the question), and given the lack of cohesion among Remain-inclined parties. That remains a distinct possibility, but I’ll set out below some reasons to doubt that prediction.


5. The election might be called because of Brexit, and be badged as being all about Brexit, but not all voters will vote accordingly. They don't always do what they're told. There’s likely to be a lot of voter fatigue, even resentment. And not everyone is obsessed with the Brexit question. People are likely to vote quite differently to the way people voted at the European Parliamentary Elections. The 2017 UKPGE was supposed to be about Brexit, but many people voted along traditional party lines, and didn't return the "expected" result. It may be true that people are starting to shake off old party allegiances, and identify in ways other than the traditional left-right divisions, but that isn't going to happen overnight.


6. The Conservative Party has been in office – in coalition or on its own – for 9 years. Voters get tired of long incumbencies. And this isn’t a party that has dominated Parliament in the way that the Thatcher and Blair Governments did, with three figure majorities, which can take a while to whittle down. Since 1987, the Conservative Party hasn’t won an election with a majority of more than 21.


7. The economy is slowing. Some of this is Brexit-related, and some just cyclical and reflecting trends in the world economy. But whatever the reasons, incumbent Governments struggle to win elections when they are presiding over poor and worsening economic conditions. If an election is called shortly before a no deal exit is planned (or staged), the conditions could be even worse. For those true believers in Brexit, it may not matter. For what may be crucial undecided voters, news stories about preparations for emergency supplies and chaos in the financial markets may persuade them to back alternatives.


8. The Government’s strategy is to appeal to the strongly pro-leave voter. The aim seems to be to recapture those who deserted the Tories for the Brexit Party, and entice Leavers who might previously have voted Labour. But by being so uncompromising – for example, referring to MPs who supported the Theresa May deal as “collaborators” – the message will be off-putting to any former moderate Conservative and potential Conservative supporters who may be, for example, liberal, pro-business, in favour of a soft Brexit. Elections tend to be won by appealing widely, rather than focussing on core supporters.


9. The make-up of constituencies obviously matters too. Even assuming 40% support a no deal exit and would vote Conservative, this doesn’t mean the Conservative have enough to win. There doesn’t seem to be evidence of sufficient support among these groups in the right places to bring about a Conservative majority at present. John Curtice on the Today programme recently considered that the likely result at the moment was a hung Parliament, and that is reflected in current betting forecasts. And that is as things stand – during Mr Johnson’s “honeymoon” period.


10. And what of that honeymoon? It doesn’t seem too rosy. Mr Johnson’s personal ratings are higher than Mrs May’s were when she left office, and the Conservatives have increased their support. But with support for the Conservatives at around 30% or lower, a few points ahead of the Labour Party, this compares unfavourably to the support for Mrs May before the 2017 election, when the Conservatives had a 20 point lead over everyone else. The main explanation for this relatively modest increase in support for the Conservatives in fact is a decrease in support for the Brexit Party – i.e. just a fluctuation in support for the preferred party among committed leavers.


11. The Brexit Party hasn’t gone away, either. It still polls respectably well for a small party. Why is this? Presumably because many committed leavers still don’t trust the Conservatives. Given the fact that Mr Johnson is at the helm, this is hardly surprising. It also indicates a difficulty. The Government is tacking as hard as possible towards an uncompromising leave position, and alienates moderates in the process; but also wants to retain power and has to govern, which requires decisions to be made in the real world. Unfortunately, the real world is a place that the committed Brexiteer believes is a fabrication of the Remain Establishment. So there will always be a purist element of the electorate that won’t support the Government. Some have spoken of an electoral pact between the Brexit Party and the Conservatives, but that seems unlikely at present. The purists will always need somewhere to go that isn’t the party of the Government and the Establishment, and Mr Farage will continue to tap into that.


12. Also, of course, Brexit wouldn’t have happened by the time the election is held. The Government might blame Parliament and the rest of the EU, but the fact remains that under Mr Cameron, then Mrs May, and now Mr Johnson, and despite “31st October, do or die”, the Conservatives would have failed to deliver Brexit, over 3 years after the referendum result. Many may rally to support the Conservative Party as the embodiment of “the people” against “the politicians”. But some voters, even leave voters, may be more cynical, and think – these people are in charge, and they haven’t managed to deliver their core policy after all this time. Why should we give them another shot at it?


13. The Conservative Party is deeply and bitterly divided, and divided parties struggle to win elections. This isn’t just about Brexit. Mr Johnson is distrusted and indeed despised by many Tory MPs, including some of those who backed him for the leadership, out of desperation and hope – hope that for many of them has now been dashed by not having been given a ministerial post. The ERG group of genuine Brexiteers are hoping that Mr Johnson will deliver their prize, but none will be under the illusion that he shares their passion, and will be quick to turn on him if they begin to suspect he isn’t doing what they want. Mr Johnson’s right-hand man, Dominic Cummings, is also despised by many of them, and is not the sort of person to try building bridges. (It's not just Remainers who have a problem with him - he's not been very polite about the ERG, and for example has described David Davis as “thick as mince”.) He has identified 30 Conservative seats that could be sacrificed at the next election to make way for gains made elsewhere. What do these MPs think of their Government, being controlled by this person? Even Government ministers may bridle at Mr Cummings' control-freakery eventually. Meanwhile, the Conservative membership (heavily infiltrated by the Brexit Party) is at odds with many of its MPs. How effectively would the party as a whole fight an election – who would be the candidates where the sitting MPs weren’t in favour of a no deal exit?


Despite what is set out above, there are plenty of reasons to believe a Conservative majority may yet happen. One of them, clearly, is the weakness of the Labour Party, which in its own way is as divided and repellent to many voters as the Conservatives. It is also rash to attempt predictions given the volatility of public opinion, which suggests significant changes in patterns of voting that are only starting to be understood.


I certainly don’t think Remainers should assume that a Conservative majority is unlikely. But fatalism can be as damaging as complacency. If there’s one certainty, I think it’s that there’s still plenty worth fighting for.


By the editor, Jul 12 2019 01:03PM

Assume that Boris Johnson becomes Prime Minister this summer, doesn’t get the deal he wants or can’t get it through Parliament by 31 October, and decides to take the UK out of the EU without a deal.


Assume also that a majority in Parliament continues to oppose a No Deal exit. Mr Johnson has said he hasn’t ruled out the option of ignoring Parliament, and “proroguing” (i.e. suspending) Parliament if necessary to achieve this.


There has been much academic debate about whether a court could and would intervene in these

circumstances. No consensus has emerged. What does seem most likely is that court proceedings would be instigated, and may well be ongoing and potentially unresolved at the crucial time – i.e. 31 October.


It has also been pointed out numerous times that the UK will leave the EU by automatic operation of law at the end of the Article 50 period, deal or no deal, unless another extension is agreed. This has led to the assumption that unless the Prime Minister is persuaded or forced by Parliament or the courts into agreeing a further extension by 31 October, then the UK leaves the EU with no deal the following day.


That may be what would happen, but I think it is worth questioning the assumption before accepting it as necessarily correct.


First it is necessary to consider the attitude of all the other member states. There would need to be unanimous agreement between them that they wanted a further extension, and that of course is not guaranteed. France in particular has indicated it may oppose this, and there are suggestions from elsewhere that it may be better to cut the EU’s losses and stop the issue dragging on. On the other hand, there remain reasons to believe that there would be unanimity, not least because of the position of Ireland, and the implications for the operation of the single market, as well as concern about the potential economic damage, and the pressure brought to bear by some states on others. So it’s not a given, but there’s at least a reasonable chance that there would be unanimity. For present purposes, let’s assume that there would be.


If so then the following scenario emerges:

• a constitutional crisis in the UK, almost certainly involving the judiciary, possibly also the monarchy, and a possible imminent change of Government,

• a PM who refuses to enter an agreement for a further extension,

• a Parliament that wants an extension, and

• all other member states that want an extension.


In such circumstances, the EU would be likely – unless it finally lost patience with us – to want to wait to agree an extension if it possibly can. It obviously can’t agree an extension with the incumbent Prime Minister, because the Prime Minister is determined not to agree one. But if it isn’t clear whether the Prime Minister has the authority to decide whether an agreement should be made – and that issue is being determined in the courts and/or in Parliament – it would be much better, from the EU’s point of view, if the issue of whether an agreement should be reached could be resolved once that constitutional position was resolved, and once it became more likely that an agreement would be reached.


There is nothing I can see in the law governing extensions that requires it to be the Prime Minister who has to agree an extension. Article 50(3) is the relevant provision:


3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.


This just refers to “Member State”. It is a matter of constitutional convention in the UK that the Member State in question, the UK, is represented by the Prime Minister. If for example the Prime Minister was incapacitated, no doubt another member of Government could act in his place. That is a constitutional matter for the UK. But of course at this point, there would be a constitutional crisis in the UK, with considerable uncertainty as to whether the Prime Minister was acting lawfully in pursuing a policy that Parliament opposed. From the EU’s perspective, that is a matter for the UK to resolve.


Also, neither Article 50(3) nor the agreement on 10 April to extend to 31 October contain provisions on how a future extension might be agreed. The relevant parts of the Council Decision recording the agreement are as follows:


1. The European Council takes note of the letter of Prime Minister Theresa May of 5 April 2019 asking for a further extension of the period referred to in Article 50(3) TEU.


2. In response, the European Council agrees to an extension to allow for the ratification of the Withdrawal Agreement. Such an extension should last only as long as necessary and, in any event, no longer than 31 October 2019. If the Withdrawal Agreement is ratified by both parties before this date, the withdrawal will take place on the first day of the following month.


The relevant parts of Mrs May’s letter of 5 April state:


I am writing therefore to inform the European Council that the United Kingdom is seeking a further extension to the period provided under Article 50(3) of the Treaty on European Union… . The United Kingdom proposes that this period should end on 30 June 2019.


Of course, on 5 April, the UK’s position was that it wanted an extension to a point earlier than 31 October 2019. But apart from the earlier date Mrs May suggested, the request was only for a “further extension”, and by accepting the date of 31 October without anything further, left open the possibility that extension beyond 31 October might be acceptable. (After all, it seems unlikely that the UK would have refused to agree an extension to, say, 15 November, if that had been the date suggested at the time.)


But the Council Decision, taken together with Mrs May’s letter, don’t contain any provision about how a further extension might be agreed.


Looking back at Article 50(3), an extension does require “agreement” between the UK and all other Member States, and so in simple terms, one might conclude that no agreement could be reached before 31 October if no Prime Minister or other recognised representative of the Member State has agreed to an extension at this point.


However, we may be in a situation where Parliament has clearly expressed its view that it wants an agreement, and there is a constitutional crisis where the lawful authority of the Prime Minister is the subject of court proceedings, and subsequently either the existing Prime Minister is forced to comply with Parliament’s wishes, or a new Prime Minister emerges who wishes to make an agreement anyway, and all Member States would be in a position to reach an agreement to extend, albeit after the 31 October date.


I think there is a reasonable argument that “agreement” under Article 50(3) could be read as including a situation where the Member States agree to extend retrospectively. There is certainly nothing specific that prevents this, even if a natural reading may suggest otherwise. The provision doesn’t say, for example, “… unless the European Council, in agreement with the Member State concerned made before the notification period ends, unanimously decides to extend this period”. The Council Decision similarly doesn’t explicitly prevent this. If necessary, a new Council Decision could be issued on or before 31 October stating that the other Member States had agreed to extend in principle beyond 31 October, pending the resolution of the constitutional issues being clarified in the UK, and if necessary taking the UK’s agreement to a non-limited “further extension” in 5 April into account, as setting out the accepted position of the UK.


There are no doubt strong arguments that can be made against this, in particular based on a natural reading of Article 50(3). But it may be that the rest of the EU would prefer to proceed as indicated above anyway. Even if a court subsequently decided that it was wrong to do so, if an agreement to extend had been reached by that point, it seems unlikely that the effect of such a judgment would be to force the UK into a no deal exit.


Anyway, even if the above analysis is wrong, it would be worth those with relevant expertise setting out why.


__________________________________________________________


UPDATE 7 August 2019.


@AskThePatrick has stated that "EU law allows either the head of state or the head of govt. to be present at the table when the request is made", and cites Article 10 of the TEU in support.


@SpinningHugo has stated that the decision on agreeing an extension must be made "by the PM, whoever that legiitmately is", though cites no law in support of that claim.


The relevant part of Article 10 states as follows: "Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens."


The agreement as to an extension under Article 50(3) is not made in the European Council, or the Council (confusingly different bodies). It is made between the Council on the one hand, and the Member State withdrawing on the other.


Article 10 therefore doesn't itself prescribe who should represent the Member State for the purposes of Article 50(3). But it may give a strong indication that either a representative of the Government or the Head of State (not necessarily the Prime Minister) would be assumed to represent a Member State for these purposes.


The issue of legitimacy may be an important one, though. Where there is a constitutional crisis in the UK, and it is not clear whether the Prime Minister or his Government is lawfully in post, and where there may be an embryonic Government waiting in the wings wishing to extend, supported by Parliament, I think there remains an arguable case that the EU could take the approach suggested above.


By the editor, May 9 2019 02:22PM

Should the result of the 2016 EU referendum be honoured, regardless of the consequences? If not, what consequences might allow the UK not to honour it? What does “honouring” the result actually mean?


The reason it’s worth asking these questions is that there’s an assumption – among Remainers as well as Leavers – that the result should be honoured. But it’s not obvious what this assumption is based on. Some of the possible reasons for it, and some of the objections to it, are set out below.


Parliament voted for it, the Government promised to implement it


Parliament voted overwhelmingly in favour of calling the referendum: by 544 to 53 in favour of the principle of a referendum, and by 316 to 53 in favour of the final version of the bill, which included the wording that appeared on the ballot paper. In case anyone has forgotten (and some people appear to have done), the question was:


“Should the United Kingdom remain a member of the European Union or leave the European Union?”


Legally, of course, the referendum result was advisory not mandatory. But the combination of other circumstances led to a widespread assumption that the result was effectively mandatory. This included in particular a promise by David Cameron’s Government that the result would be implemented.


The result was fraudulent


Those Remainers who no longer honour the result often take this position on the basis that a) the Leave campaign peddled lies, and/or b) the Leave campaign broke the law, and so the result was invalid.


Legally, there’s nothing in these points. The first of these provides no legal basis for invalidating the result: electors are left to judge for themselves the accuracy of political campaigns. The second was considered in detail by the Court of Appeal, and rejected as having “no evidential basis” and being “clearly untenable” (The Queen on the Application of Susan Wilson and others v The Prime Minister [2019] EWCA Civ 304 paras 42 and 43).


It remains a point of view. I don’t agree with it myself. We all know that political campaigns are dishonest, and the dishonesty here was pointed out at the time. The Remain campaign was not itself beyond reproach, for example stating that an emergency budget would be needed immediately after the vote to prevent the economy from imploding. The Court of Appeal's reasons for rejecting the view that the breaches of the law by leave campaigners affected the result are compelling, whatever your view of the legal issues.


Clear but not overwhelming – the Soft Brexit compromise position


I was in this camp. It honours the result, but acknowledges the lack of clarity in the question that was answered. It considers that the closeness of the result, splitting the voting public 52:48, gives a clue as to how the question should be more precisely answered: implement a Brexit that would be most acceptable to Remainers. Something akin to a Norway model looked sensible.


A problem with this is that the Northern Ireland issue makes a straightforward Norway model unlikely if not impossible. Finding another Soft Brexit model that will work and could get through Parliament also looks unlikely. A further, perhaps more terminal, problem is many Leavers now regard any kind of Soft Brexit as no Brexit at all. It then becomes hard to persuade Remainers to support something that even Leavers don't want. There seems no realistic chance at the moment that a Soft Brexit would be democratically acceptable.


Another referendum


There’s the argument that we should respect the result in 2016, but acknowledge that it only provided part of the answer: we need a further vote now that the position is clearer on the options for leaving.


Proponents of another referendum are invariably Remainers, who expect one of the options on the ballot paper to be to remain. It seems to me a confused position. On the one hand it can be seen as dishonouring the result, given that only a short period of time has elapsed since the country voted to leave. Honouring the result may at least require the UK to leave before offering the electorate the chance the rejoin. On the other hand, it confers some democratic legitimacy on the 2016 referendum, by requiring another referendum to overturn it (and of course Leavers say, if there can be another referendum after Remain lost the first, why shouldn’t there be a “best of three” – it seems to me a fair argument). Furthermore, which Leave model or models should appear on the ballot paper? Excluding certain models (such as a no deal exit) may mean some Leave voters are effectively disenfranchised for the second vote, even though they won the first round.


Let Brexit wither and die


This looks the likeliest option at the moment, though few people openly advocate it. It may be that Parliament continues to disagree on any means of leaving, though it supports some form of leaving in theory, and the EU continues to agree to extensions to Article 50. It would mean dishonouring the referendum result but not doing so openly. The uncertainty would continue to damage the UK economy and its standing in the world otherwise. But after a few years, perhaps the issue becomes less potent, and it’s officially or unofficially dropped.


Political imperative, moral imperative?


I think it’s worth considering what “honouring” means. It suggests a moral imperative, rather than simply a political imperative. It’s undeniable that there is or has been a political imperative to press on with implementing some form of Brexit. As mentioned above, the advisory nature of the referendum is widely regarded as a legal technicality. People were promised that the result would be implemented. Brexit continues to dominate political discourse. Both main political parties claim to want to implement it. Many people would get very angry – even angrier – if Brexit was cancelled.


I don’t doubt any of this. But what of the moral dimension to this: is there a moral obligation on us as citizens, or MPs, to agree to Brexit being implemented?


I think I used to think this, though I’d not articulated it in such a way. This was partly guilt: having voted Remain, and lost, I felt a grudging sense of obligation to toe the line that Brexit should happen, even though privately, slightly shamefully, hoping that it wouldn’t.


But I can’t now see that there’s any reason for this. The referendum, based on the question posed on the ballot paper, should never have been held. That wasn’t so obvious at the time. It has become clear in retrospect. A referendum result can only provide a deliverable instruction to Parliament if the instruction is clear. We now know quite how unclear the instruction was. There are many varieties of leave, and none were specifically endorsed by the electorate. To take just one example, there was no promotion of a “no deal exit” by Leave campaigners, and no suggestion by any politician that such an exit was being considered. Yet now many Leavers claim that this is what a vote to leave actually meant.


The fact that the Government at the time promised that the result would be implemented may, again, have political force. But it has no legal force, and has no moral significance as far as citizens or MPs generally are concerned. In any event, that Government is no longer in power – we have since had a general election.


And it is worth once again considering the advisory nature of the referendum. The fact that politicians and others have distorted this so that it’s become generally accepted as being a technicality or forgotten doesn’t alter the legal fact. Parliament made legislation that resulted in a legally non-binding referendum.


Ah, but Parliament voted overwhelmingly to trigger Article 50, didn’t it? And didn’t most MPs stand on manifestos that supported Brexit?


Yes, but Parliament can change its mind. It can choose to revoke Article 50, or call another referendum. A Government may be under a political obligation to deliver its manifesto, but MPs aren’t under any duty to vote accordingly. MPs are also entitled to change their own minds, and indeed we ought to hope they will do so if they become aware of facts that undermine their original views. This is representative democracy.


The mess in summary


Unlike an election, the referendum didn’t give a victorious party a mandate to push through the result of the vote. Accordingly, no one has direct responsibility for it. Although the current Government has taken on that responsibility, it doesn’t “own” the vote. Accordingly, others have laid claim to representing the “will of the people”. Unlike a policy proposal in a manifesto, the referendum result won’t simply live or die with the Government. There is also no defined or agreed shelf life for it. It is partly this feature of referendums that makes them dangerous to democracy, and why they should be used sparingly, and carefully.


The vagueness of the referendum question was exploited in the referendum campaign. As the designated campaigner, with the largest resources, Vote Leave became the face of the Leave campaign. Its strategy was considered brilliant by many, partly because it managed to avoid pinning its colours to any particular leave option. It made the vague promise that the UK would “take back control” of its money, borders and laws, while also indicating that the UK would stay in some form of single market, and managed to keep socialists, nationalists and free marketeers inside the same broad tent. It might have been brilliant at winning the campaign (or maybe it was just being pragmatic), but the strategy has made implementing the result even more difficult.


The politics of Brexit is at an impasse because of the vagueness of the referendum question, and what resulted directly from it. Even if a form of Brexit was achieved, it would hardly satisfy anyone, and would infuriate many. The deal agreed by the UK Government was not only rejected repeatedly by Parliament, but is unpopular with many Leavers, many of whom consider it to be “Brexit In Name Only”, and worse than staying in the EU (30% of Leavers thought that MPs should have rejected the deal in March, while 49% thought they should vote for it, according to YouGov – and I expect the deal is becoming even more unpopular now). The EU aren’t going to offer any other deal that’s substantially different. The no deal exit favoured by many Brexiteer politicians involves negotiating a new deal, which simply takes us back to square one. A no deal exit that is based on no deal ever being struck, and relying on WTO rules only, is too extreme for mainstream politicians, and even for the Brexit Party. Among established parties, only UKIP supports this. But even if politicians were elected who pushed forward with this, it would require negotiations and compromises with various countries, not just the EU bloc, in order to keep the UK functioning, and that would lead to similar howls of betrayal from the hardcore Leavers, of accusations of selling our sovereignty, and the cycle would be repeated – or such politicians would be forced out, because everyone else would be appalled at the chaos this had unleashed.


So while it’s tempting to take the position that Brexit must happen for the sake of democracy, the political reality is that there is no form of Brexit that will satisfy a majority, or even a significant minority, of people. In which case, how would democracy be served by pushing on with some form of Brexit, if people don’t want it, and there’s no principled reason to do it either? Democracy was damaged by the referendum question, not by a failure to implement the result.


So what’s the solution?


As most people agree, there are no easy options now. The referendum has been extremely damaging, and recovering from it won’t be easy.


The political realities may require the UK to pursue Brexit somewhat longer. Provided the other EU countries agree, we could continue to extend Article 50 for some time yet. Parliament and the Government could continue to pretend to put some effort into finding a solution. In the meantime, it is possible Brexit could happen by accident (perhaps if France wants us out). Otherwise, we could stay in the Brexit antechamber until something forces the issue. That may be the least worst option in the short term.


But aside from the political realities, my conscience is clear: I think we should revoke Article 50 as soon as possible, and simply treat the referendum result as a constitutional aberration. Political parties would be free to campaign for Brexit in the future. There is bound to be a big shake-up of political parties over the next few years, and quite likely a new party or coalition will emerge with significant support that is overtly nationalist. At some point there could be a Government with a proper democratic mandate from a general election to implement Brexit – having decided on a particular form of it that could in fact be implemented, if that can ever be found.


I voted Remain – I wish I hadn’t now – I shouldn’t have voted at all. But however the country goes about trying to repair the damage being caused, I hope that one lesson learnt will be that we should never hold a referendum like that again.


By the editor, Apr 17 2019 10:59AM

Two key dates emerged in the Brexit saga: 29 March and 12 April 2019. Having passed both without leaving, the chances of any Brexit happening at all decreased significantly.


As those dates drew nearer, speculation grew about the possibility of revoking the UK’s notification that it was leaving the EU under Article 50.


In March and April, several distinguished twitter lawyers - @davidallengreen, @SpinningHugo, @ProfMarkElliott - stated that any legislation to revoke Art 50 must be passed quickly. There was a danger, they suggested, that any legislation introduced in Parliament to revoke couldn’t get passed in time before the Art 50 period expired (originally 29 March, then 12 April). But why was this?


The assumption was that no further extension to Art 50 could or would be made to allow for the passage of this legislation. But is there any legal basis for that assumption? If so, it would have been helpful if this had been spelled out.


Given that another “cliff edge” approaches at the new expiry date of 31 October, and there is the possibility (however remote it may seem at present) that the UK may wish to revoke at that point, would it be the case that the legislation would have to be rushed through then?


I can’t see what the legal basis for that view is. Article 50 doesn't state what extension is for. Under Art 50(3), the state concerned simply ceases to become a member after the 2 year period "unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." This wording doesn't exclude extending for revocation. So on a plain reading of this provision, there is no reason why there shouldn’t be an extension for the purposes of revocation.


Could it be argued that, nevertheless, the underlying purpose of extension is to secure a deal, thereby excluding extension for revocation?


That seems a weak argument, unless there was extraneous evidence to back it up. That is partly because revocation is accepted to be an option once the Art 50 notification has been made. The case of Wightman and Others v Secretary of State for Exiting the European Union demonstrates that. So why should Art 50 be read as preventing a member state from staying in the EU where the EU wanted an extension to achieve that? Any such extraneous evidence (for example, indications of what the intention of Art 50(3) was at the time it was drafted) would have to be clear and powerful to persuade a court that it would be unlawful for the EU to extend Art 50 in these circumstances. No such evidence has ever been produced as far as I am aware.


Of course, there may be political reasons why an extension wouldn't be granted. The two reasons that appear possible are: 1) the EU doesn't consider the UK is serious about revocation; or 2) one or more EU members would prefer the UK to leave.


Regarding 1), similar considerations apply to revocation as to any other statement of intent by the UK (such as passing a deal, or arranging a referendum). Why would revocation be any different? If a bill providing for revocation had, for example, passed the first stages of the legislative process in the Houses of Commons and Lords, why wouldn’t the EU grant an extension to allow Parliament to complete the process? Especially given that the alternative would be the disruption caused by a no deal exit, which none of the other EU states want.


Regarding 2), is there sufficient evidence of this? There are certainly reports of such sentiment, e.g. from the French. And it is true that extension requires unanimity, so one state could veto such an extension. However, collective pressure can be, and clearly already has been, exerted. In any event, the evidence that France or any other state would seek to prevent the UK the from staying (especially if the alternative was a no deal departure, with particularly damaging implications for Ireland) seems fairly scanty so far.


Finally, it's possible that Parliament could wish to revoke and the Government sought to prevent it, and attempted a no deal exit. But the current Prime Minister has said that she wouldn't override the will of Parliament regarding leaving without a deal, and appears to be acting accordingly. A future, more hardline Brexiteer PM, may well emerge of course, given the current state of the Conservative Party, and it is quite possible that such a PM may wish, or may feel pressured, to leave without a deal. But a Government that acted to prevent an extension in these circumstances would inevitably be challenged in court. It would also face, and almost certainly, lose a no confidence vote in the House of Commons. Under the Fixed-term Parliaments Act 2011, the Government wouldn’t necessarily fall immediately in these circumstances, but it would be on borrowed time. Would it make political sense for a PM to press on regardless in those circumstances, precipating a likely general election at a time of constitutional and economic crisis? Would the civil service support a Government that was acting in such a way? It may be also that the EU wouldn't accept that the "UK" (as represented by a PM acting contrary to the wishes of Parliament) had refused to agree an extension in these circumstances. The issue may end up being resolved in the courts.


But the latter issues are matters of speculation, as to whether an extension would be granted. Going back the first point, is the any basis for the assumption that an extension could not be granted, as a matter of law? No argument has been put forward to justify this.


If the argument is in fact a political one, it would be still be worth fleshing out the reasons for it, particularly if this concerns the possibility that the Government might wish to prevent revocation and extension that had the explicit support of Parliament. It would be interesting to hear the views of such commentators on whether there are circumstances in which the Government could achieve that.


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