The biggest Brexit scandal of them all

The most disturbing aspect of the referendum campaign was the failure to acknowledge – on either side of the argument – the issue that has now emerged: process.

David Elstein
29 November 2016

Theresa May 2011. Flickr/FCO. Some rights reserved.Largely concealed from the electorate during the referendum campaign is the question that has recently taken the foreground in the post-Brexit debate – the sheer difficulty of disentangling the UK from the EU, even given the will and the necessary support.

It actually suited both Remain and Leave to avoid this knotty problem: Remainers were trying to make an economic and political case for staying in the EU, so arguing that extrication is immensely difficult legally and technically is scarcely the first line of attack. Leavers had little incentive to draw attention to the sheer complexity and uncertainty of the departure process, which might have deterred even the most intrepid Brexiteers.

The irony, of course, is that until the Lisbon Treaty was signed – allowing Tony Blair to wriggle out of his own promise to hold a referendum on the proposed new EU constitution, which the Treaty essentially replaced without triggering a UK vote – there was actually no provision for any country to leave the European Union.

Even then, the famous article 50 of the Treaty gave no guidance as to how a departing member might replace the decades of legal enmeshment in EU laws and rules, let alone the trading and other relationships that had been established in that period: there was just a two-year time period for some kind of negotiation, with a nominal possibility of extension (itself requiring unanimity amongst the remaining EU members – a rarity at the best of times).

The post-referendum debate in the UK since June 23 has therefore been profoundly skewed. The many recriminations – on both sides – have essentially missed the point, which is that a very large majority of MPs approved the holding of a referendum where only one of the two possible outcomes had known consequences. It was as if Parliament had cynically concluded that the British public could not possibly vote to leave the EU, so it was perfectly acceptable to hold a vote on that issue without the slightest preparation on the part of the executive for one of the possible outcomes. A very large majority of MPs approved the holding of a referendum where only one of the two possible outcomes had known consequences.

It has become standard for supporters of Remain to blame the Leave campaigners for lacking an exit plan. This seems wholly unrealistic: how were a handful of cabinet ministers and other like-minded people, such as Labour’s Gisela Stuart, whilst being denied all access to the machinery of government (which was actually entirely focused on campaigning to Remain), to conjure up a unified and coherent route-map, when – as we have seen – even a troika of empowered ministers dedicated to such a task will need at least ten months to come up with something?

Indeed, it was virtually irrelevant what the official Leave campaign said during the referendum: none of their “pledges” was redeemable, and none featured on the ballot paper. That ballot question, loftily approved by the Electoral Commission with the overwhelming blessing of the Commons effectively offered a choice between continuing – indeed, permanent – acceptance of an unpopular membership, or a leap in the dark. And what both sides of the debate carefully avoided mentioning, as far as possible, was that the leap could easily turn into a stumble and even an ignominious pratfall

Post-referendum perplexity

Having chosen to leap, the narrow majority of those who chose to vote Leave on June 23 now must feel perplexed by the nature of the post-referendum wrangling.

Can the Prime Minister legally give notice to the EU of the UK’s intended departure, under article 50, or does she require Parliamentary approval? Would a simple resolution to that effect, passed by both chambers, provide the braces to go with the executive belt? If the government persists with its appeal to the Supreme Court to overturn a High Court decision that required Parliamentary approval for triggering article 50, might the original litigants then challenge a Supreme Court rejection of that decision at the European Court of Justice?

Apart from the delays thereby caused, the deep irony of requiring EU permission before we can even commence an exit process will surely confirm Brexiteers in their determination to escape the tentacles of the EU.

Yet against this background of previously undeclared procedural resistance, and facing a solid wall of hostility from the EU27, determined to ensure (at whatever cost to themselves) that Brexit hurts the UK, the government faces a steady drizzle of tactical nit-picking that seems oblivious to the stark underlying truth: it is pointless negotiating amongst ourselves – it is the EU27 who constitute our negotiating partners/antagonists.

Those who call for a “soft” Brexit, or an exit that protects workers’ rights (which is really a matter for domestic legislation, not EU exit negotiation), or “transitional” arrangements, or an EEA refuge, or recognition of the “needs” of Scotland, Wales or Northern Ireland (or Nissan, for that matter) simply miss the point. Nothing that we might – with immense difficulty – agree amongst ourselves as our “negotiating position” will make any difference if either the EU27 Council (by a qualified majority) or the European Parliament turns down our proposal. We can have all the red lines that we like, but as soon as we inform the EU27 that we will no longer, after March 2019, allow free movement of people, all bets will be off. We can have all the red lines that we like, but as soon as we inform the EU27 that we will no longer, after March 2019, allow free movement of people, all bets will be off.

As it happens, Mrs May could well have in mind some kind of offer to the EU27, to the effect that its citizens – up to a given limit – could enjoy privileged access to the categories of desired migrants a future UK government might establish. Yet the strong indications are that any breach of the free movement principle will automatically disbar the UK from membership of the single market. Finding some kind of equilibrium between full access and a WTO-style tariff wall for trade in goods may prove to be so difficult to achieve that we might as well reconcile ourselves to WTO tariffs from the start.

The notion of “transition” is doubly unrealistic. Even one negotiated agreement is likely to prove beyond reach: the prospect of two is surely a non-starter. Likewise, the calls for a second referendum – to approve, or not, the terms that the UK might actually achieve in talks with the EU27 – makes little sense. What would a “no” majority mean in such a vote? That we exit the EU without an agreement? That we revert to the status quo ante June 23 (which no longer exists, as the concessions made by Cameron as part of his February deal would have allowed the EU27 to make further moves towards integration by 2019)? Indeed, the promise of a second vote would surely encourage the hardliners amongst the EU27 to make any deal they offer the UK so unpalatable that it might force Britain back into Europe on its knees.

It follows that there is little to be gained from an attempted negotiation with Brussels, other than considerable ill-feeling on both sides. Indeed, even if the UK were simply to announce that – as of March 2019 – it would revert to WTO tariffs with respect to imported EU goods (and accept, by implication, the imposition of the same tariffs on our EU-bound exports), so by-passing any notion of a trade “deal”, we would still have a major argument with the EU27 over residual obligations, such as contributions to pensions (of course, if the EU’s finances had been honestly managed, all pension obligations for the future should have been built into each year’s budget – but that’s another story).

“Sorry, we didn’t mean it”?

What this tells us is that there is really no difference between a “hard” Brexit and a “soft” one: because a “soft” option (other than saying “sorry, we didn’t mean it”) will not be on offer. Nature – and prevailing law – will take its course on services (the EU might try to damage London as a financial centre, but almost certainly the only beneficiary, were it to succeed, would be New York, not Frankfurt, Paris or Milan). We need to face the reality that simply slogging our way to the finish line will take a great deal of doggedness and bloody-mindedness.

Meanwhile, lip service will be paid to all sorts of lobbying and tactical harrying: but the government has committed itself to getting the UK out of the EU, willy nilly, and will need to grit its teeth whilst shrugging off all the nit-pickers. The most honest opponents of Brexit will – as is their right – continue to argue that June 23 can be reversed in due course: but only after it has been delivered. Trying to frustrate it, openly or covertly, will – equally rightly – be resisted by the government, committed as it is to trying to deliver what the electorate appeared to have voted for: exit, however tricky, however painful and however hard precisely to define.

And, of course, the Remoaners amongst the Remainers will never be reconciled. Even someone as cogent and level-headed as Neal Ascherson recently criticised Theresa May (in the London Review of Books) for embracing Brexit despite having argued against it: yet what else was she – and indeed, all the other Tory MPs who voted Remain – meant to have done? Refuse to serve in any Brexit government? Even Cameron – before he baled out – had promised to deliver Brexit if Leave won. Or bring down a narrowly-Brexit government at the first opportunity, and force an election, in which scores of Tory Remainers would have been de-selected, and Labour ones replaced with UKIP MPs? Neal even complained that Mrs May is following “the most damaging” form of Brexit (in his view), as if she could pick and choose, uncharacteristically failing to understand that we don’t have a choice of Brexits – only in, or out. We don’t have a choice of Brexits – only in, or out.

The disdain with which the all-wise Remoaners regard those who voted for Brexit, or are trying to deliver it (another LRB writer, David Runciman, regards himself and his ilk as the “grown-ups in the room”), speaks of a permanent divide in the UK, which will harden over time.

Only when history overtakes it, decades from now, will Brexit – like Catholic Emancipation, the Great Reform Bill, Corn Law repeal, Empire preference, Irish Home Rule, votes for women, capital punishment, legalising homosexuality, abortion law reform and privatisation – cease to exercise its power to turn friends, family members and party colleagues against each other.

So be it. What is harder to forgive is the cynicism with which the EU inserted a “leave mechanism” in the Lisbon Treaty, fully intending to make it as close to undeliverable as possible, and the UK government, with the bland assent of Parliament, offered voters a referendum with only one choice fully mapped out, and terra incognita as the other. That is the real Brexit scandal.

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