Last Saturday something like 100,000 people marched through Westminster demanding a second referndum on any final Brexit deal. The “People’s Vote” petition has gathered what, at present, seems a fairly modest number of 145,000 signatures at the time of writing, asking for the same thing. According to the Petition:
“The future of this country and young people is too important to be decided by politicians alone, who cannot unite around the national interest.”
It is a mirror image of the argument that “politicians alone” should not have decided on our continued membership of the EU; a populist, anti-representative-democracy, argument that led directly to the 2016 referendum.
I voted remain. I thought the vote to leave was a dreadful mistake and nothing that has happened since has changed my mind. Indeed, the mistake has been compounded by a divided and incompetent government.
It seems probable that some sort of transition agreement will be reached in October, and 5 months later we will be outside the club, though permitted some of its benefits as long as we play by its rules. As with many compromises it will be something which almost nobody wanted. The alternative will be that no deal is struck – a position which terrifies many but which a few actually do want. Short of an agreement with the EU to extend the Article 50 “notice” period, or – even more unlikely – the agreed or unilateral revocation of our notification, Brexit will now happen as a matter of law. Leaving to become, in the words of Jacob Rees-Mogg, a “vassal state,” does not sound very attractive, but walking out with no deal at all sounds like a pretty dire prospect too. Either option will, in my view, be much worse than staying in would have been.
So surely people like me, who voted to remain and would very much wish Brexit were not happening, should be signing the petition, marching and generally campaigning for another referendum in order to cancel out the terrible mistake of 2016, and restore the status quo ante?
We should not.
Quite apart from any argument of principle, there is an overwhelming practical argument against campaigning for a second referendum. There is simply no time available. The legal effect of serving notification of withdrawal from the EU under Article 50 of the Lisbon Treaty (supported by many of those, such as Chuka Umunna MP, now campaigning most vociferously for a referendum designed to prevent that very notification taking effect) is that unless the contrary is agreed by every member state, or the Article 50 notification is unilaterally withdrawn (which may not be legally possible), the UK will cease to be a member of the EU on March 29th next year.
Any referendum would have to take place in time to allow the other member states to agree, well before March 29th, that we can remain. That means it would have to take place months earlier, ideally in October, once the shape of the exit deal is clear, but certainly no later than the middle of January.
A second referendum would require an Act of Parliament. In emergencies, especially if there is broad consensus, Governments can pass legislation very quickly. But even if there is an emergency there is certainly not a consensus; rather more importantly there is not even a majority. Indeed, all the indications are that there is a substantial Parliamentary majority against having another referendum. It would be far too late to leave such legislation until next year. To have the slightest chance of having the time available to pass it (bearing in mind that it will face the most determined opposition), the legislation would need to have been introduced months ago.
Of course, the difficulty of the task does not necessarily mean that we should not try, otherwise many great political changes would never have been attempted. But where a task is near impossible and the time available is measured in a few months some attempts are simply futile. There is no point in wasting time, resources and credibility on futile campaigns.
But let us suppose that there was for some reason a dramatic shift in public mood, perhaps brought about either by the prospect of a dreadful deal, or by the growing realisation that there was not going to be a deal at all. Even then, the idea that, at the same time that it is trying to sell its Brexit deal (or absence thereof) to the nation, the Government would attempt to legislate for a referendum, the sole purpose of which would be to scupper that very deal (or no-deal) is simply delusional; as is the idea that it would then impose the various guillotines, whips and other instruments of coercion necessary to force it through Parliament, while simultaneously relying on the same instruments to drive through the vast and complex swathes of Brexit legislation which are already dangerously behind schedule.
And if, by some extraordinary concatenation of unforeseeable circumstances, the Government found itself in the contorted position of trying to convince its own MPs to vote to support its deal while simultaneously voting for emergency legislation designed to destroy that same deal, the Government’s credibility would be so shot to pieces that it could not survive, and nor would it deserve to.
Even if a Referendum Act was somehow passed, and a referendum was fixed for, say, November (a time of year usually regarded, for sound meteorological reasons, as an electoral “close season”), the campaign would not be an edifying spectacle. The country would be plunged, if that were possible, into still greater uncertainty, with nobody knowing whether we should be preparing to leave or preparing to stay. All the indications are that the country remains deeply split, with roughly equal numbers supporting Leave and Remain. The contest would be more bitter than last time and the margin of victory for either side would probably be similarly small. Parliament, of course, would have to be suspended for the campaign, further reducing the already inadequate amount of time available for the passage of the necessary legislation if in fact we are to leave, or its repeal if we are to stay, and reducing still further the already low chance that the country would be properly prepared for March 29th.
And the referendum would take place without knowing whether we even could remain, and if so on what terms. A successful attempt to revoke the Article 50 notification would require either a decision of the ECJ that it is legally revocable, or at least the absence of any legal challenge to its revocation; in effect the agreement of every member state. If it turned out that it was irrevocable, the referendum would have been in vain anyway. Where would that leave us? Forced either to leave, despite not wanting to do so, or to remain on terms dictated by the other members of the EU.
In the event of a last minute change of mind, would the EU, and its constituent states, be prepared to allow us to remain on the relatively favourable terms which we currently enjoy? Would our rebate be continued at the same level? Would we face a demand for a higher contribution? Would we come under renewed pressure to join the Euro, or perhaps to provide it with financial guarantees of some sort? Would we be required to join Schengen? Or to take a larger share of refugees off the hands of Greece or Italy? The EU itself, or indirectly any individual member state, could demand a high price.
“You’ve messed around and wasted our time for the last two and a half years,” they could say, or at least think if they were too polite to say it, “if you want to stay now, these are our terms, take them or leave them.”
Given the acute pressure of time, such demands could not possibly be resolved until after the referendum had been held. Leavers would then be able to make precisely the argument that Remainers are now making: that the referendum was held before all the relevant facts were known. The Government’s negotiating position in any post-referendum “Bremain” talks would be quite hopeless. With a decision to remain taken by referendum they could hardly then threaten to walk away, and they would be forced to hope for the benificence of the EU. Practically everyone would feel betrayed.
The truth, brutal for those like me who would wish it were not so, is that – barring an agreement to extend the Article 50 negotiating period, which is itself exceedingly unlikely – we are going to leave the EU on March 29th, whether we like it or not. The process cannot be stopped by a second referendum.
Perhaps it is just as well that it cannot, for the truth is that we are in our current mess because of the corrupting effect of the 2016 referendum on our constitution. The result of the dreadful decision to hold it is that MPs have, ever since, considered themselves to be mere delegates, bound to implement its result whatever their own views and whatever the changing circumstances. We have a Government carrying out a policy that the Prime Minister herself and many of her cabinet believe to be mistaken, and MPs voting for policy with which most of them disagree. However, the proper solution is not to have another referendum, which will only cause greater problems and legitimise still further the baleful role of referendums in the constitution; the proper solution involves, as far as possible avoiding the wretched things altogether.
I once learnt to fly. One of the things that you are taught is that there comes a point during the take-off run when your speed is so high – it is called V1 – that you cannot safely try to stop even if something is going wrong. Once you reach it you simply have to take off, even if your oil light is flashing red and your engine sounds as though it is about to conk out. Dangerous though it may be to fly, trying to stop is even more so (and, incidentally, one airborne it is seductively tempting and suicidal to try to return immediately to the perceived safety of the runway). We have, I am afraid, reached that point with Brexit. Even if a second referendum were desirable it is too late to demand one now. Shouting “Stop!” from the economy seats won’t help. All we can do is hope, in the teeth of all the evidence, that the pilot knows what she is doing. It’s time to tighten those pitifully inadequate lap straps and check the laminated cards for the proper way to adopt the brace position.
The post I’m a Remainer but I’m not campaigning for a second referendum appeared first on BarristerBlogger.