By the editor, Jan 31 2020 04:50PM

I remember listening to this, many years ago, from “Summoned by Bells” by John Betjeman, and remain as puzzled by it now as then:

“Some know for all their lives that Christ is God,

Some start upon that arduous love affair

In clouds of doubt and argument; and some

(My closest friends) seem not to want His love -

And why this is I wish to God I knew.”

My puzzlement will be shared by other atheists: how can you reject love when there’s nothing to indicate that it’s being offered to you?

But my puzzlement at Betjeman is matched by the puzzlement Betjeman felt about people like me - as to our mental states; as to “why this is”.

It’s for this reason that there isn’t much point in an argument between those with faith and those without, as to who is “right”. They are mutually incomprehensible positions.

There are some political positions, too, that become articles of faith. So for some, the virtues of socialism are self-evident, and for others capitalism is immutable. Such opinions may be in part based on evidence, but become matters of moral certainty. The same is true of other political philosophies, and some more specific issues, whether it might be nationalisation, immigration, criminal justice, HS2 or Donald Trump. We’re all guilty to some extent of tending to adopt and defend positions on matters before we’ve considered the evidence in any particular case. We like to think we’re open to being persuaded if the right facts are put before us. But there comes a point in many disagreements where the dispute is really about values rather than empirical truth. And at this point, there’s nothing to gain by arguing further. Neither side will prevail, or even make any headway; neither side will understand the other side’s point of view. It doesn’t stop people continuing, of course, and this is often when disagreements turn nasty – they turn personal, because they’re essentially about values, and by implication about character.

Betjeman’s lines came back to me at this time because of the feelings generated by the UK’s departure from the EU tonight. Despite the bitterness and sadness from some on one side, and the glee and nastiness from some on the other, there are signs of people (from both sides) wanting to heal the divisions of the last few years. One step in this process may be recognising that differences of view can’t easily be understood, and that people can’t be reconciled simply by attempting to resolve factual disputes.

It’s odd from one perspective that the EU has caused such strong feelings. It wasn’t previously high on people’s list of concerns. Such ideologies as there are on either side (theories of fraternalism versus theories of national sovereignty) aren’t widely shared. Instead, I think (as others have suggested) that Brexit became a proxy for a more deep-seated cultural divide - highlighting, exacerbating and warping it.

This means that sometimes we engage in our Brexit battles on the assumption that our differences are to do with Brexit itself, when in fact they’re to do with something quite different. That can make it even harder than in other contexts to understand where another person is coming from. Meanwhile the tone of the debate has become at times so vitriolic, simplistic, and tribal, that it’s difficult to make the effort to understand in the first place. And at the core of some of these issues are differences of values, which run into the difficulties mentioned above.

Someone’s concerns about “sovereignty”, for example, may have one of, or several, many different causes. But it may well be that at core this person has a different view on the importance of “place” to someone else. And that is likely to be a difference about something deep-rooted and instinctive, rather than something reducible to reasoned argument. So it may be that there’s a fundamental psychological difference between that person and someone who isn’t as bothered about the issue, and it isn’t easy for either to comprehend the other’s perspective.

It still seems worth trying to understand such matters, if we’re to avoid simply trading insults. But perhaps we ought also to acknowledge that we may end up, like Betjeman, saying - and really meaning it, not out of exasperation, but out of recognition of our human limitations – “and why this is I wish to God I knew.”

By the editor, Dec 20 2019 05:11PM

Some thoughts – loosely linked – about the result of the 2019 general election.


Unsurprisingly, there has been a lot of commentary already about the reasons for the Conservative victory. More surprisingly, much of it has taken the form of the counterfactual, presented as a confident assertion of probability, rather than as interesting speculation. For example: if only Labour had tilted more towards Leave, or more towards Remain, or if only it had backed Theresa May’s deal, or refused to vote for Article 50 – the result would have been different.

It’s surprising because – as you’d have assumed many of these commentators would know – it’s impossible to predict with any degree of probability that the present would have turned out in a certain way if something about the past had been different. I’ve explained why in another context, in another post ( In short: there are too many variables.

Of more practical and long-lasting use are the statistics being gathered, not only about the actual votes, but also about what people have said about their reasons for voting (albeit that the latter obviously need to be treated with caution). Three points emerging from this data are reasonably uncontroversial. Firstly, the Conservative share of the vote didn’t go up by very much; the Liberal Democrat share of the vote went up significantly; and the Labour share of the vote went down dramatically. Secondly, the main reason voters gave for not voting Labour was its leader. Thirdly, voters were unusually repelled by both main parties, if not all parties, including their leaders. Usually there is some evidence of enthusiasm for opposition parties, or of (perhaps grudging) admiration for incumbent parties. This election seemed to present large numbers of voters with a particularly unpalatable choice of evils.

And that has a bearing on the part Brexit played in the election. It was this election that decided whether the UK would leave the EU, and Brexit was the trigger for calling the election in the first place; and yet both main parties simply refused to talk about it. It is interesting that the winning side’s slogan was “Get Brexit Done” – hardly a rallying cry to the Brexiteer enthusiast. This is the slogan that played well in the focus groups before the election. It is the attitude of the voter who is fed up of the Brexit saga, just wants to get it over with, isn’t expecting anything particularly positive to come of it, doesn’t care too much about the details or the consequences, but believes that the referendum result should be respected, and wants there to be a Government that will stop dithering and just get the country over the line, so that everyone can get on with their lives and concentrate on what’s of more immediate importance. It is not an appeal based on the positive (albeit similarly dishonest) messages of the original Leave campaign.

So there was no party representing enthusiastic Leavers. Remainers often faced a difficult decision. Labour vacillated about whether it effectively supported a Remain position or not. The Liberal Democrats adopted a revoke position (which many Remainers apparently recoiled from), and then backtracked. Ex-Conservative Remain-leaning MPs stood in some seats. Many Remain voters whose politics were otherwise on the centre ground found it difficult to vote for an outcome that would result in Jeremy Corbyn moving into Downing Street.

In short, there was one clear Leave position, represented by one major party (“let’s put this sorry mess behind us”); and several muddled Remain positions, which couldn’t counter this simple appeal. The final victory of the Leavers – like its first victory, at the referendum – was a triumph of message over substance. As everyone who is reasonably informed knows, Brexit will not be “done” when the withdrawal agreement is passed, as the message sought to convey. But for many voters, it was good enough.

So, emphatic though the 80 seat majority result was, it shouldn’t be taken as reflecting the degree of enthusiasm in the country for Brexit generally, or the Government’s proposed version of it in particular.

On Brexit, and on other matters, the many people who voted so reluctantly for the Government may be particularly quick to judge it harshly if things don’t go the way they hoped.


There may be one silver lining, although it has nothing to do with the UK’s relationship with Europe. The damage from the 2016 referendum was much more widespread than that. One of the referendum's most threatening legacies was the weakening of support for parliamentary democracy. Now that the Leavers have won after a parliamentary general election, there will be no more talk of a “Remainer Parliament” thwarting the “will of the people”. That isn’t to say that the poison has been removed completely. The new Government has called itself, laughably, the “People’s Government”. More menacingly, its manifesto includes proposals to look at “the relationship between the Government, Parliament and the courts”, suggesting that there may be an attempt to increase the powers of the executive. There could yet be challenges from the hardline Brexiteers to the new Government that seek to draw on their own interpretation of the referendum mandate.

However, the potential constitutional crisis that was brewing in the autumn has, I think, been averted. Both Remainers and Leavers seem to have accepted the result of the general election. It is worth briefly reflecting on what this means.

There had been an argument that the outcome of the referendum represented a superior form of democracy, which trumped that of any election, and accordingly, any Parliament. To some extent this was widely accepted, even by many Remainers, which has been why many Remainers were attracted to the idea of a second referendum, despite the obvious drawbacks to it. As argued in the previous post, this view is in part explained by the particular circumstances of the referendum, which was not seen as being “owned” by the Government that held it, as other referendums have been.

It is clear that the new Conservative Government wholly owns Brexit, at least for now. Those of us who object to Brexit don’t like the fact that it’s happening, of course. Many of us also consider the current voting system for general elections is flawed, and wonder whether a different one might have yielded a different result. But there was a referendum on that too, of course, in 2011, and the status quo was preserved. So this is our system of democracy – we’re stuck with it for now. And it’s returned a Government with an emphatic majority, and a clear mandate, to take the UK out of the EU on the basis of a withdrawal agreement that’s already drawn up.

Of course, the precise details of the final withdrawal settlement aren’t clear yet. The Conservative Party, no doubt deliberately (following the Vote Leave campaign strategy), hasn’t spelled this out. But the electorate was free to reject it for that reason. After three and half years, there was a huge volume of information about what Brexit might mean, depending on the different ways in which the UK might leave, and extensive exposure of the dishonest statements and mistakes made by the previous Government and other supporters of Brexit. Maybe many voters weren’t interested enough to read much about this. But again, that’s their choice. They can cast their vote with or without that considering that information: that’s democracy.

It's purely anecdotal, but I’ve heard several people, both Remainers and Leavers, express some relief that at least this general election has settled the issue of whether the UK leaves, and that at least the country gets a chance to move on, despite differing views about the ultimate destination. It’s possible that the election, having answered the question of whether (if not how) the UK leaves, might help to heal some of the bitterness. And it is clear that the new Government will be held to account for whatever shape Brexit takes over the next few years. That seems to me a healthier state of affairs than existed previously.


Opinion seems divided on whether the Government will choose a soft or hard Brexit, though inclining now towards the latter. I think worth considering the following points on this.

Boris Johnson will, I think we can assume, want something that a) is quick and easy, so freeing up time for other projects, b) is not immediately economically (i.e. electorally) damaging, c) fits in with other policy objectives, and d) he can actually get past his own MPs. He’s unlikely to get a deal that ticks all four of these boxes, so which assume higher or lower importance will depend at the time what his priorities are. He won’t be the hostage of the 30 or so hardline Brexiteer MPs as he and Mrs May were previously. It’s possible that some of the new MPs may be of the same breed (recently it looked as though the ERG might have increased its membership slightly), though some of them represent areas that might particularly suffer from a hard exit (for example, constituencies in the North-East and the Midlands dependent on the car industry and other manufacturing sectors).

In any event, Mr Johnson himself is clearly not an ideological Brexiteer. So if he chooses a hard Brexit, it will be for other reasons than any convictions about Europe.

In fact, it’s hard to discern any convictions in him at all, other than those concerning himself. It seems to me mistaken to assume that, for example, because he was apparently in favour of liberal policies while London Mayor, he will suddenly adopt liberal policies now that he has a comfortable majority as prime minister. His record is one of bending and flipping towards whichever policy position best secures him support in any given situation.

I think it is worth, however, considering that he may not end up driving this particular policy. He shows little interest in the detail of Brexit (or indeed, in any detail – he prefers to delegate generally). A lot may depend on the Cabinet reshuffle. Will the ERG continue to dominate? The choice of other personnel could give a clue as well, now that the focus has shifted from the limited priorities of the previous administration. Dominic Cummings had been hired to get a Brexit deal through, and win an election – but both have now been secured. So why is he staying on – how long for, and in what capacity? He has radical ideas, and a particular vision of Brexit (not the same as the ERG, but not a soft Brexit either). If he continues to dominate No.10, this may indicate a direction of travel.

So in summary, it seems to me too early to say what flavour of Brexit we’ll be getting, except that it would be surprising if Mr Johnson allowed any development that he thought would damage his prospects of getting re-elected, and also that it may well depend on who else holds the key positions within the Government


It is interesting that the Government is disbanding the Department for Exiting the EU, and is to stop referring to “Brexit” in its communications. This is the natural consequence of a Government elected to “Get Brexit Done”: get it all out of the way on 31 January 2020, hope the focus moves elsewhere. And maybe the voters (or those they’ll need for the next election) will stop caring after that. But the early signs are that the debate in the country isn’t going to go away, that there are already divisions in the Government and the Conservative Party about the next stage of the Brexit process, that there are potential difficulties brewing already, for example in Northern Ireland and Scotland, which could yet make it difficult for the Government to control this narrative as it wishes. The saga seems destined to continue.

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 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.

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