Reflections on Brexit (From an Airport)

Introduction – 18.01.17

Yesterday, Theresa May gave a speech about Brexit. This post was written whilst travelling from Schipol airport to the UK just after the speech and then back again today, which seemed appropriate times and places for an EU-dwelling-British-national to reflect upon Mrs May’s speech.

It is no surprise that the government intends to leave all the institutions of the EU fully. Their recent comments have hinted at this and hard Brexit (now being subtly re-branded as ‘clean Brexit’) is the only position compatible with such comments. I am not informed enough to say whether this is likely to be a good or bad thing (I have an opinion, but it is a complicated area where some degree of expertise in several disciplines is really required in order to speak authoritatively). However, I do have some thoughts about the legal and constitutional implications of the proposed hard Brexit.

Awaiting Judgement

Parliaments and National Assemblies

The Supreme Court will rule on the Government’s appeal against the High Court decision (that Article 50 cannot be issued without (Westminster) Parliamentary approval) on 24th January. There are several issues to be decided by the Supreme Court and, if they all go against the Government, not only could the need for Parliamentary approval delay Article 50 being triggered, but it may also be deemed that the Government cannot trigger Article 50 at all without the consent of the semi-devolved nations. The Scottish government will almost certainly not agree to Mrs May’s hard Brexit (see below). Even if Scotland did agree, the Northern Irish (NI) government is currently in turmoil, new elections are to be held and it is possible that semi-devolved rule may still thereafter be suspended, all of which would leave the NI government unable to give its consent until such situations are resolved.

Further, either the House of Commons or the House of Lords could also refuse to approve a bill to trigger Article 50. I think it is unlikely that the House of Commons would do so, but the House of Lords might (see below).

The Executive, the Judiciary and the Legislature

The promise to allow (the Westminster) Parliament a vote on the final deal between the UK and EU before it comes into force is worthless because it will be too late for Parliament to have a constructive role. The option will be simply to accept or reject whatever deal has been negotiated. If Parliament rejects the deal, then the UK still leaves the EU, but it does so with no deal. The very reason the High Court case was brought against the Government was to try and ensure Parliament had an upfront role in the Brexit process. The Government is trying to exclude Parliament from having such a role.

Mrs May may have heralded the sovereignty of (the Westminster) Parliament as both a key British constitutional plank and a differentiator between the UK and other European countries in her speech, but in reality she and her Government are actively trying to undermine Parliament’s sovereignty, to the extent of fighting all the way to the Supreme Court.

Mmmmm….Mandates….

One comment I heard was that Mrs May is an unelected Prime Minister who has no mandate to take the UK out of the Common Market. There are two issues here.

Legitimate PM? Legitimate to Leave Common Market?

(i) Firstly, the fact that Mrs May was not the leader of the Conservative Party when it won the last general election is irrelevant constitutionally. In the UK, one votes to elect a local Member of Parliament (MP), not a Prime Minister (PM). Whichever party gets the required number of MP’s elected to the House of Commons gets to form a government. If that party changes only its leader, the new leader becomes PM but the mandate upon which the government was elected has not changed: the government remains legitimate. Of course, it may be that in reality, people do actually vote for the person that they think will make the best PM rather than for their local MP so one could argue that Mrs May does not have a ‘popular’ mandate. But in fact, her approval ratings are fairly decent and she would likely be returned as PM if there was a general election tomorrow.

(ii) However, it is true to say that Mrs May does not have a mandate to lead the UK out of the Common Market. Indeed, the opposite is true; the Government is mandated to keep the UK in the Common Market because their election manifesto contained a commitment to do so.

Elections, Manifestos and Plebiscites

The 2016 referendum result was not legally binding; it gives the government a popular mandate to lead the UK out of the EU, but no legal obligation to do so. Manifesto pledges are also not legally binding, but they are constitutionally important because of the Salisbury Convention. If the Government tries to create an Act of Parliament not founded upon a manifesto pledge, the House of Lords could refuse to pass it. The 2016 referendum asked only whether the UK should remain part of the EU or leave it. It did not specify what ‘leave’ meant. For example, it did not ask if the UK should leave the Common Market. A spectrum of ‘leaves’ is conceivable and it is possible for the Government to effect Brexit without breaking its manifesto pledge to remain in the Common Market. The House of Lords would have grounds under the Salisbury Convention to vote down any form of Brexit that is not consistent with the mandate upon which the Government was elected, and Mrs May’s Brexit proposal to leave the Common Market is the exact opposite of the Government’s election pledge to remain in it.

The ambiguity of what ‘leave’ actually meant on the 2016 referendum ballot paper also means that anyone claiming to derive a specific mandate to do x, y or z (such as leave the Common Market) from the referendum is on shaky ground because they are simply guessing at the voters’ specific intentions when they voted to leave. This is especially so regarding the Common Market because the leave campaigns stated many times that leaving the EU did not mean leaving the Common Market. It is probable that some people voted to leave but wanted the UK to remain in the Common Market.

Scotland’s Strong Mandate

The SNP (which forms the current Scottish Government) made a pledge in its election manifesto to hold a 2nd referendum on Scottish independence if there is a significant and material change in circumstances from those existing at the time of the 2014 independence referendum (e.g. Scotland being taken out of the EU against its will). Mr’s May’s proposed hard Brexit is exactly such a change. Scotland voted overwhelmingly to remain in the EU and (following the 2016 referendum) the Scottish government has also been very clear that it will not consent to being dragged out of the Common Market. Given the manifesto pledge, the emphatic nature of the SNP’s election victory and the overwhelming vote of the Scottish electorate to remain in the EU, a 2nd independence referendum seems inevitable. The Scottish government has a powerful mandate to hold such a referendum. A vote for Scottish independence seems, to me, to be very possible.

The Irish Questions

A Border That Cannot Be

Leaving the Common Market and the Customs Union would result in the border between the UK and the Republic of Ireland (ROI) becoming both an immigration and a customs border between the EU and the UK. However, no one sensible should contemplate erecting a new physical border on the island of Ireland and risk igniting the troubles again.

The ROI and the UK have a Common Travel Area between the island of Ireland and the mainland UK, which Mrs May pledged to retain. The ROI (as an EU member state) is obliged to accept the free movement of people. The combined result of these two things is that once an EU passport holder has entered the ROI, it can travel from any part of it or – because there is no border between the ROI or  NI – NI to the mainland UK without showing a passport. It is hard to see how this arrangement (which predates the UK joining what is now the EU) is compatible with the UK rejecting the free movement of people to and from the EU (or the Government’s wider pledge to “take back control of its borders”): the two seem completely incompatible.

Even leaving aside immigration, without a customs union, customs checks will presumably need to be carried out. How can this be done without a border of some sort between NI and ROI? (Note: if Scotland leaves the UK it’s possible that these issues may arise on the Scottish/English border also).

The Good Friday Agreement

The peace treaty between the UK and the ROI (and most political parties in  NI), which effectively ended the troubles in NI, contains a commitment by each state to remain EU members. What happens to the Good Friday Agreement and the peace process if the UK breaks that commitment? The political institutions and the political framework underpinning semi-devolved government in NI derive from the Good Friday Agreement. The EU has also been an important part of the peace process beyond the Good Friday Agreement (diluting cross-community tensions, providing funding in NI and providing a source of commonality between all parties). What will be put in place to ensure the peace process continues and how will it be negotiated?

End Thoughts

Few political problems are insurmountable and solutions are probably possible for all of the above. However, these are merely some examples of the difficult and serious issues to be overcome in the event of a hard Brexit. The challenges should not be underestimated. They demand detailed, difficult and thoughtful discussion in order to solve them, not flag-waving guff or comforting, self-reverential, nationalistic delusions.

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