100 Days to Brexit -From ‘Branching Histories’ to Binary Choices

Forget the 12 Days of Christmas, there are now just 100 days remaining of the United Kingdom’s forty-six-year membership of the European Union. In the upcoming weeks, days and hours, critical choices will be made that will shape not just Brexit but every aspect of UK political, economic and social life in the years ahead.

Eighteen months ago I posted the following on this blog:

In the introduction to Brexit Time: Leaving the EU – Why, How and When? I quote from a blog post written by Dominic Cummings, the campaign director for Vote Leave. In that post, he describes a world in which events happen that change the future, but where those events happen in a ‘non-linear’ way. These are the ‘branching histories’ that take us down one road rather than another.

This was brought back to mind when listening to my Cambridge colleagues David Runciman and Helen Thompson discussing Brexit on their weekly Talking Politics podcast. In particular, David spoke of the narrowing of choices down to a moment when a binary choice will be apparent and a decision will be made that will define Brexit. Whereas the Cummings thesis is that moments of destabilisation and disruption produce an expanding set of political choices and options, the Runciman perspective is one of a gradual narrowing of those choices into a new moment of decision.

What is perplexing about our current times is that both dynamics – expanding and contracting choices –  appear to be possible at the same time.

With the production of a Withdrawal Agreement and a Political Declaration on the future UK-EU relationship in November, the range of options available to politicians seemed to narrow decisively. Indeed, the consensus from both the UK and the EU sides of the negotiations is that this is thedeal and it is the only deal on the table. And with anxieties about the Irish backstop continuing to put at risk the conclusion of the deal, the response from the EU has been to reiterate that the text of the agreement is not to be re-opened for further negotiations.The binary choice seems to be Deal or No Deal.

It is precisely because the Prime Minister’s Brexit deal looks unlikely to get the consent of MPs at Westminster – a realisation that led the PM to delay a vote on the deal until mid-January – that every potential alternative outcome – from a ‘No Deal’ Brexit to a ‘Norway Plus’ future relationship – now seems to be in play. The ability of the UK to revoke its Article 50 withdrawal notification is also now an option following the recent ruling of the Court of Justice of the EU. We seem to be generating more possibilities rather than narrowing the choices down.

But choices will need to be made and the sequencing of those choices will determine the outcome.

The first choice is for MPs to make: to approve or not to approve the PM’s Brexit deal.

This is a decision MPs gave to themselves when Parliament enacted the EU Withdrawal Act 2018. The Government cannot proceed to ratification of the Withdrawal Agreement without parliamentary approval of the legally-binding Agreement and the accompanying non-binding Political Declaration (setting out the direction that UK and EU negotiators intend to take to talks on the future relationship).

If MPs do not approve the Brexit deal, Parliament has no capacity to substitute its own preferred version of Brexit. It cannot enter into negotiations with the EU. It could try directing Government as to the deal it might want – something it perhaps ought to have done when empowering the Prime Minister to trigger the Article 50 withdrawal process – but it is hard to conceive how this could be done without Government backing for the legislation that would then bind the Government in its EU negotiations, nor is it obvious that the EU would consider going back to the drawing board. if MPs reject the deal table then – absent anything else – a No Deal Brexit cannot be avoided. So why might the deal be rejected?

For those who dislike the backstop provisions of the Withdrawal Agreement, a No Deal Brexit may seem preferable despite its implications for the Irish border and for the reciprocal protection of the rights of EU citizens in the UK and UK citizens in the EU. This is the view of those for whom any deal betrays the mantra of taking back control. If the objection is instead to the future UK-EU relationship contained in the Political Declaration, there is nothing to prevent a different type of relationship being negotiated once the UK leaves the EU. The Political Declaration does not bind either side to only one vision of the future. Choices can still be made including the option of Norway-style access to the Single Market whether or not combined with a Customs Union. Provided the Withdrawal Agreement is otherwise acceptable, it is less obvious why MPs would vote down this deal simply because they think a better future UK-EU relationship is possible. Like it or not, the smoothest path towards the UK’s departure from the EU is to accept this deal.

If the deal is rejected by MPs, the Government faces further choices.

There is a political choice about whether a new government is needed to take charge of Brexit. This could happen in one of two ways without a general election. Having survived a vote of no confidence in her leadership within her own party, the Cabinet could, nonetheless, force the PM to resign under threat of Cabinet resignations. After all this was how Margaret Thatcher was evicted from No. 10. The problem the Conservatives face is the absence of an alternative position or rallying figure around which Tory MPs could coalesce. Given that the Conservatives are running a minority Government, unless a new Conservative administration could be formed that could command the confidence of the Commons, the initiative could pass to the Opposition parties to form a minority government. Because of the riskiness of the political arithmetic entailed in running minority administrations, the better option might be to precipitate an early election under the Fixed-term Parliaments Act. Nonetheless, for the Conservatives the risk would be that Labour would capitalise on the Conservative’s mishandling of Brexit, while for Labour the risk would be that it inherits the Brexit problem weeks before the UK’s intended departure. Changing government at this time seems politically dangerous.

It is against this background that the option of a further referendum begins to make more sense. Mrs May could end up backing a referendum as a Hail Mary option to give voters the option of backing her deal, thereby forcing MPs to get in line with the electorate. For those who believe a No Deal Brexit – or ‘managed’ No Deal – is preferable to the Brexit deal, allowing voters that option also has some leverage. It may seem more acceptable to fall off the cliff-edge if the people give politicians the final push. However, it is impossible to conceive of the necessary referendum legislation getting through Parliament if all that is offered is a choice between Mrs May’s Deal or a No Deal Brexit. So perhaps contrary to David Runciman’s assumption that decisions inevitably move towards a binary choice, a third option of remaining in the EU could well be an option.

With three potential choices on a referendum ballot paper – and the risk that a split ‘Leave’ vote could allow a ‘Remain’ vote to win even if the combined Leave vote was greater than 50% – voters would have to be asked to rank their preferences. A referendum in these terms would have the advantage of allowing voters to express multiple preferences at least as regards where things stand now. It would not give voters an alternative deal to vote on but as explained above, accepting the current deal does not rule out alternative scenarios in the future.

In a previous blog post I came to the conclusion that a referendum on the options was preferable to an attempt by Parliament to manufacture a ‘least worst Brexit’. That was when we were 340 days from exiting the EU and before the UK Government and the EU agreed withdrawal terms. The political climate has deteriorated significantly to the point we are now at and we need to be honest that a referendum that selects any one of the available Brexit options also has destabilising consequences.

If the electorate backs the PM’s Brexit deal as delivering on the 2016 referendum, it will highlight the chasm between politicians and the people on Brexit. Voters will have done the dirty work that MPs appeared incapable of doing on their own. The erosion of faith in parliamentary democracy will accelerate.

Backing a No Deal Brexit would double down on a loss of faith in politicians to negotiate an orderly exit from the EU by engendering a significant shock to the UK, Irish and EU economies. The babble about a Brexit on WTO terms or a managed No Deal Brexit veers between the wholly inaccurate and the triumph of hope over reality. Crashing out of the EU will produce a political and economic crisis.

If Remainers content themselves with the belief that staying in the EU is a comfortable reversion to the status quo, they ignore that the status quo changed with the 2016 referendum. The genie will not be put back in the bottle. The political right – and its representation in the tabloid press – stands ready to claim that ‘our’ Brexit has been stolen from ‘us’. Don’t be surprised if the Yellow Vest movement makes an appearance on UK streets, filling the gap created by the UKIP implosion.

The Prime Minister has suggested that another referendum will damage democracy. The problem is more that democracy is capable of damaging itself, the political and economic institutions and the social order it sustains, and from which it is itself sustained. That process began with the 2016 referendum and could accelerate with another referendum. The flip-side is that the system of representative democracy does not seem to be working either.

Perhaps David Runciman is right after all. There are binary choices to be made that are about the choice of democratic process – parliamentary democracy or direct democracy – as well as about what form Brexit will take.

If Parliament takes the initiative and approves the Withdrawal Agreement and Political Declaration, it will have taken the options of No Deal and No Brexit off the table. If Parliament rejects the deal and leaves it to the electorate to decide, it seems highly unlikely a ‘People’s Vote’ would really be on the deal if it is the deal that MPs have rejected. In practice, even if there are three options on the ballot paper, the first preference selection would likely become a binary choice between a No Deal Brexit and No Brexit. A referendum would put back on the table what parliament could have taken off the table. That is the choice MPs must make when they return to the Commons in January.

Putting the Bullet Back in the Chamber -Could Parliament Exit from Brexit?

The Wightman judgment from the Court of Justice of the European Union holding that a Member State may unilaterally revoke its notified intention to withdraw from the EU prior to that withdrawal taking effect has largely fallen foul of a Brexit news cycle in which each new twist and turn supersedes the last. Indeed the UK Prime Minister’s decision to postpone a House of Commons vote to approve the Withdrawal Agreement and Political Declaration negotiated between the UK and the EU almost entirely overshadowed the Court’s ruling.With the substance of the ruling more or less following last week’s Opinion from the Court’s Advocate General, the impact of the judgment is also somewhat reduced. However, the judgment contains significant messages for political and legal audiences.

To the political audience there is one enormous political message and it is not so much a message about withdrawal as it is about membership.

The Court is clearly signalling that membership of the European Union, and the rights and responsibilities which come with it, is voluntary. States exercise their sovereignty to choose to join the European Union and the Court emphasises that when states join the EU using the Article 49 TEU process they ‘freely and voluntary’ commit themselves to the values underpinning the EU. The discipline of EU membership – including acceptance of the primacy and direct effect of EU law – is something which states can accept voluntarily by joining, or reject voluntarily by leaving the EU. If a state decides to change its mind and not to leave but to remain a Member State, it must be free to do so voluntarily and can neither be coerced into leaving or be authorized to remain by the other Member States.

In short, the Union is a voluntary association of sovereign and equal Member States. As political messages go, that is a pretty big message.

That big message also comes with a more specific message for the UK. If the UK were to decide to remain in the EU it would do so ‘under terms that are unchanged as regards its status as a Member State’. Given that the UK’s membership of the EU entails a range of opt-outs, these would not be up for renegotiation as a condition of remaining an EU Member State.

In other words, the status quo of remaining in the EU would be the status quo of the UK’s current terms of membership.

Aside from these important political message, the judgment also has something for EU lawyers and UK constitutional lawyers.

For EU lawyers, the decision is of significance not least in resolving a legal question that had been much debated in blogs and in journal articles (some of which are summarised in my earlier blog on this case). Despite well expressed reservations in some quarters that unilateral revocation might be used to game a withdrawal process or might otherwise risk moral hazards or abuse, the Court has come down on the side of a contextual and historical interpretation of Article 50 TEU that emphasises the voluntary nature of the withdrawal process. Accordingly, unless and until a withdrawal agreement enters into force or the two-year withdrawal period – or an extended period – expires, a Member State remains free to change its mind and notify the European Council (in writing) of its ‘unequivocal and unconditional’ intention to remain a Member State of the EU.

The ruling is also of interest to EU lawyers because of the willingness of the Court not only to deal with the case on an expedited basis – the ruling comes barely more than two months from the request of the Scottish Court of Session for a preliminary ruling from the Court – but also because of the rejection of the UK Government’s position that the referral was inadmissible. The Court was unwilling to accept that the presumption of the relevance of the question posed by the national court had been rebutted. Interestingly, once the Inner House of the Court of Session had determined that the case was admissible under domestic rules governing an application for judicial review and had rejected claims that a referral was inadmissible on grounds of being hypothetical or academic in nature, the Court of Justice appeared to be content with those assessments. In particular, the Court did not accept that there was no real dispute between the parties unlike other cases where the parties have essentially contrived litigation in order to obtain an interpretation of EU law from the Court. That said, the essential dispute between the parliamentarians and the UK government was on the need for a reference to the Court of Justice: it is hard to see what other substantive dispute there was between the parties.

For UK constitutional lawyers, the Wightman ruling is also of some significance. While the UK Supreme Court in Miller had proceeded on the assumption that an Article 50 TEU notice could not be revoked we now know that this is not the position under EU law and no doubt some will speculate whether the clarification of the legal position would have led to a different result (for the reasons given by Jack Williams it is unlikely that the Supreme Court would have decided differently). However, the point remains that there are domestic constitutional requirements which must be met in order for the UK to leave the EU and as the Court of Justice tells us, these are also applicable to revocation of a notice of intention to withdraw from the EU. Indeed, the Court’s safeguard against an abusive withdrawal of a notified intention to leave the EU is that a change of mind is subject to domestic decision-making procedures. Thus, any decision not to withdraw from the EU must – by analogy with the decision to withdraw in terms of Article 50(1) TEU – be in accordance with domestic constitutional requirements.

The Court of Justice has muddied the waters somewhat, however, by referring not just to the notification of an intention to revoke in accordance with domestic constitutional requirements but also to the Member State’s decision ‘to revoke the notification of that intention through a democratic process’. Two issues arise. Is the need for a ‘democratic process’ an additional EU law requirement, and what would an acceptable democratic process look like?

One way in which the Court departs from its Advocate General is that the Court does not demand that the notification of revocation meet EU requirements of good faith and sincere cooperation. In that light the reference to the democratic process could be viewed as a more concrete procedural demand of EU law intended to prevent an abusive exercise of the right to revoke at the whim of the executive. However, the better view is that decisions to withdraw from the EU or stay a Member State remain sovereign matters for the Member States themselves and the domestic constitutional and democratic procedures mandated by the laws of the Member States. The EU law requirement is instead for the revocation to be ‘unequivocal and unconditional’ – that the revocation is the result of a constitutional and democratic process is the domestic means of achieving that outcome. It is not for the EU to mandate what those constitutional and democratic requirements ought to be, but it is for the EU to verify that the outcome achieves its need for a decision that is unequivocal and unconditional.

All of which leaves open the question of what democratic requirements might be required by UK law. As we saw with the original Article 50 withdrawal notification, it may not be entirely apparent what rules UK law imposes. Phillipson and Young contend that an Act of Parliament would be required given that the will of Parliament – expressed in the European Union (Notification of Withdrawal) Act 2017 and the European Union (Withdrawal) Act 2018 providing for the UK’s departure from the EU – would be frustrated by a revocation of the UK’s Article 50 notice. A referendum prior to that decision would not be required although it could be undertaken if the UK so chose. But whether a referendum occurs or not is being driven by the somewhat chaotic domestic politics of Brexit rather than being a product of the Court’s Wightman ruling. Indeed one way of reading the judgment is that the best way of securing an unconditional and unequivocal decision to revoke the notified intention to withdraw from the EU is for the UK Parliament to legislate accordingly.

If the political message of the Wightman ruling is that the EU is a union of sovereign states, then the legal message is that it is up to the sovereign UK Parliament to decide whether the UK leaves the EU or remains a Member State. But as the Prime Minister’s decision to postpone a vote on her deal reveals, it is not obvious that there is any consensus within Parliament to move one way or another. The Court of Justice has left open the possibility for the Brexit bullet to be returned to the chamber. It is not obvious that the Chamber of the House of Commons knows whether it wants the bullet back.

An earlier version of this post appeared as Sovereign Choices: The CJEU’s Ruling on Exit from Brexit, VerfBlog, 2018/12/10, https://verfassungsblog.de/sovereign-choices-the-cjeus-ruling-on-exit-from-brexit/.

Now is not the time for a ‘least worst’ Brexit – it’s time for a referendum on Brexit itself

There are 340 days to go until the UK leaves the EU.

The time remaining for the UK and EU to negotiate a withdrawal agreement is even less than that.

Domestic legislation still needs to be passed to retain EU law in national law. Time will also be needed to give domestic legal effect to any withdrawal agreement.

Time is short even to do what the UK Government wants to do, namely to leave the EU, its Single Market and Customs Union, and instead negotiate with the EU a new relationship based on a free trade agreement.

And yet we still seem to be talking about alternative options. Indeed, the term “least worst Brexit” seems to be gaining some currency as politicians and others wake up to the reality of what the UK intends to give up from its EU membership as well as all the difficulties and limitations associated with what the UK Government aspires to achieve.

A prime example of these attempts to temper the effects of Brexit is the idea of remaining in a customs union. The focal point for this debate is Parliament, with both the Lords and the Commons seeking to steer the Government towards a customs union.

For the Commons, a debate will be held on Thursday on a motionthat calls on the Government ‘to include as an objective in negotiations on the future relationship between the UK and the EU the establishment of an effective customs union’ between the UK and the EU. It will be a debate with no immediate legal consequences and the reference to a ‘future relationship’ may look beyond the immediacy of current negotiations. The Lords, however, have gone further in amending the European Union (Withdrawal) Billto make the repeal of the European Communities Act 1972 conditional on Ministers laying before both Houses of Parliament a statement concerning the steps taken in negotiations under Article 50(2) to negotiate an arrangement to continue participating in a customs union with the EU.

In response to these moves, the UK Government has today repeated its position that the UK will be leaving the customs union. So what should we make of attempts by Parliament to push for a least worst Brexit?

The first thing to be clear about is that the UK Government is not negotiating in Brussels according to a mandate that Parliament has set for the UK Government in advance of negotiations. Our constitutional set up is instead one in which Parliament’s role is to legislate to implement international agreements and, in more recent times, to signal its approval of such agreements prior to ratification so as not to lead to the circumstance in which a Government is confronted with a Parliament unwilling to legislate for a deal that it does not like. We are now 15 months on from the Lancaster House speech in which the UK Government set out what sort of Brexit it wanted. We are also more than a year into the negotiations that will lead to the UK’s withdrawal from the EU with likely less than half a year left to finalise the deal. This hardly seems the moment for Parliament to decide it wants to instruct the UK Government on what it should be negotiating.

Secondly, Parliament cannot simply legislate for a customs union. The UK is leaving the EU and any future relationship can only be negotiated between the UK Government and the EU. The Lords amendment to the Withdrawal Bill does recognise that in the sense that it only demands that Parliament is informed about those negotiations. As such it is also an amendment whose condition is easily satisfied. After all, ministers may simply state to Parliament that ministers have taken no steps to negotiate a customs union as it is not government policy to have one with the EU.

Given that the Government is clear about what it wants, the only real option for Parliament is to bring the Government down one way or another. And if this Government is gone, are we really talking about forging a least worst Brexit or something else all together?

Because if there is a strong enough political momentum to reject the Government’s Brexit strategy and to argue instead for a customs union and likely also the Single Market, then perhaps there is political momentum to push for retention of EU membership itself.

As I argued in Brexit Timeand as I have been suggesting here, Brexit is a choice in time and of time. In the time that remains before the UK leaves the EU, I think the choice is not between the UK Government’s form of Brexit and a least worse version. It is between what the Government is seeking or the UK remaining in the EU.

So I have come to a conclusion. There should be a referendum on the question whether the UK leaves the EU on the terms that the UK Government negotiates, or the UK remains a Member State of the European Union. There is no time for a third way option and all the chatter that suggests that such an option might be viable is, to my mind, a distraction.

I fully understand those that believe another referendum could be divisive. But to be clear this would be a referendum on a different proposition. And it seems to me that people on both sides of this argument need to have the courage of their convictions. Either the Government is right to push for an end to EU membership on the terms it negotiates, or it is wrong and the status quo should prevail. As I have also argued on this blog, if there is to be another referendum, time is limited.

This is not the time for Parliament to try and find a middle ground. It is time for Parliament to allow the electorate to make a decisive choice. If Parliament wants to legislate for anything it should be to for a referendum.