The revolving Brexit door
By Paul O’Grady
It is understandable that the rest of Europe is angry with the UK.
Yet again the UK has vandalised the European project – this time in a spectacularly destructive manner, triggering unnecessary political and financial instability affecting everyone.
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As a UK national, I am sorry that our inept political establishment has caused this mess.
As an EU citizen I accept that ‘in is in’ and ‘out is out’ and the fundamentals of the membership rules cannot be changed.
But I would like our European friends to understand that many Britons do not think that the referendum outcome is sufficient for us to give up our European identity without a fight.
The UK remain camp will seek to delay and reverse the referendum outcome using all democratically legitimate means.
What concerns me now is that the EU27 and the European Parliament are behaving – at least publicly – as though the referendum means that Brexit is a fait accompli and appear to be hastily pushing the UK towards the exit door.
They want the UK to pull the formal leave trigger, Article 50 TEU, “as soon as possible”.
In the words of Macbeth, “If it were done - when 'tis done, then 'twere well it were done quickly”.
While it may be in the EU27’s interest, it is neither in the interest of the UK remain camp nor the UK national interest to quickly trigger Article 50.
This may still be true in one, two or five years. As always, we need to find ways of uniting diverse interests.
The referendum is not clear
In asking for a quick pull of the Article 50 trigger, the EU27 ignore the UK’s constitutional arrangements. This is a mistake.
Article 50 stipulates “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”.
The first key point is that the status of the referendum is not clear.
Unlike the UK referendum of 2011, the legislation for the in-out EU referendum does not contain any information on the implementation of the result.
OK, it is obvious that, politically, it would be very hard to claim that it was merely consultative, but it does not automatically follow that it is legally binding.
The second key point is that the UK Parliament has a crucial role in deciding questions on withdrawal. This role is doubly important given the uncertain status of the referendum and the need to clarify if and how it is implemented.
On the wider constitutional question, it should not be taken that just because the UK does not have a written constitution there are no constitutional requirements. There are, but they are opaque, complex and hard to navigate.
The most important fact to grasp is that the UK government cannot simply send a letter to the Council triggering the withdrawal process.
Because parliament is sovereign, the UK government requires parliamentary approval before triggering Article 50. This will involve both houses of Parliament and may involve devolved assemblies in Wales, Scotland and Northern Ireland.
It is also important to remember that only 158 out of 650 UK members of parliament publicly backed leaving the EU, while 475 others were for remain.
Even though the main political parties are in disarray, it should not be assumed that 170 MPs will compound the folly of the referendum outcome, ignore their convictions and meekly submit to the parliamentary minority.
If a law is required to implement the referendum result, it could be a substantial piece of legislation including clauses detailing the government’s negotiating mandate and allowing for a referendum on approving or rejecting the UK’s exit terms.
Failure to comply with the legal aspects of the Article 50 process now and in the future could lead to challenges in the UK and European Courts.
Status not changed...yet
Even if Article 50 is activated, until it formally leaves, the UK remains a full EU member, legally bound by EU law. Put simply its status has not changed.
Therefore, unless the UK does anything to materially breach its treaty obligations – frustrating as it would be for the other 27 – the UK can at any point in the 2-year exit negotiation process decide not to leave and retain its EU membership status.
Politics is about what is possible and as we go forward, anything is possible.
Between now and the UK’s exit, many other events could halt Brexit – one or more general elections, a groundswell of UK public opinion against exiting triggering a second referendum, no agreement on the withdrawal arrangements or a rejection by the UK Parliament or a referendum on the exit terms.
The Macbeth soliloquy mentioned above occurs in Act 1 scene 7 – but the play has 8 scenes in the fifth act.
Put simply, it is not over yet.
Paul O'Grady is Executive Director of Article21, co-founder of Democracy Reporting International and consults on elections and democracy for the OSCE and European Union.