The EU can't and won't give us a second membership referendumby Peter Kellner / December 11, 2015 / Leave a comment
With election year drawing to a close and (probably) referendum year about to start, let us dispose of one persistent myth about our coming decision on Britain’s membership of the European Union. It is that “out” doesn’t really mean “out.” Dominic Cummings, campaign director of Vote Leave, and Boris Johnson have both advanced this case. They argue that a vote to leave the EU would simply trigger tough negotiations; the rest of the EU would be so keen to keep the UK in the EU that they would make big concessions. We could then have a second referendum, with the option of staying in the EU after all.
The attractions of this for the Vote Leave campaign are obvious. It would remove much of the fear factor. A vote to leave the EU would not be an irreversible leap in the dark, after all.
The trouble is, it can’t happen. The EU’s rules simply don’t allow it. Maybe they should; maybe this is (another?) example of Brussels arrogance. But the rules are clear.
This month’s Prospect published the key document: article 50 of the Lisbon Treaty. Bronwen Maddox has written about the two-year process that would lead to Brexit, following a referendum vote to get out. It makes grim reading, for the terms would be dictated by a qualified majority vote of the other 27 member states, meeting together without Britain. We could, of course, reject the terms we are offered. But then we would be complete outsiders, for example facing tariffs on our trade with the EU.
However, my concern here is to apply the Lisbon Treaty rules to the Cummings/Johnson plan for Britain to have second thoughts and decide not to leave after all. Article 49 makes no provision for backing off. At most, it says the other 27 member states can stop the two-year clock, if they agree to this unanimously.
So: could they agree to stop the clock permanently, and so, in effect, let the UK remain in the EU for as long as we want? Not really. It would need only one other country, at some point in the future, to withdraw their consent to the stopped clock procedure, and the UK would be out on its ear. This is a recipe for instability and uncertainty, not a secure, lasting relationship. We would be leaning precariously against an exit door with a flimsy lock.
A more feasible route is suggested by the final paragraph of article 50: “If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in article 49”.
Article 49 sets out the route map for applicant countries. It is a cumbersome process that normally takes years, involving the agreement of all member states, ratification by their own parliaments, and majority approval by the European Parliament.
However, let’s suppose that these rules are applied in the most benign way. Before the two years are up, the UK signals its wish to rejoin the day after leaving. Maybe the other 27 states will agree to stop the clock long enough for this process to be completed. (That is not certain: it could be argued that the UK must leave the EU before it can start the process of applying to rejoin it. But let’s be as generous as possible to the Cummings/Johnson proposal and assume that we are able to apply for membership in the way I have outlined.) Maybe, in the special circumstances of the UK’s application, the process could be completed in months rather than years. Could we then secure continued membership of the kind that Cummings and Johnson say would be available?
Only in their dreams. If the EU were to let us back in, it would be on terms that no UK government could accept. The reason is this. Over the years, the UK has negotiated special deals that don’t apply to most other states. We have our annual budget rebate, we are outside the Schengen travel area, we are under no obligation ever to join the euro, and we have opted out of justice and home affairs legislation. Simply to retain the status quo—let alone secure new rules or opt-outs on things like welfare—would require every other member state and their parliaments to agree to terms that are not available to any other applicant state.
Think about the politics of this. If the UK is allowed to go through this In-Out-In process, and obtain the kind of concessions that Cummings and Johnson seek, then sceptics in many EU countries will demand similar concessions. The scene will be set for a range of nasty confrontations between broadly moderate EU governments and such parties as France’s Front National, Germany’s Alternative fur Deutschland, Finland’s True Finns, and the Swedish Democrats. Europe would face a brand of divisive politics that could lead to the unravelling of the EU as a whole. Faced with that prospect, would every single one of the other 27 member states and their parliaments really agree to make the UK such massive concessions? Is the Pope a Protestant?
So David Cameron is right when he says a vote for Brexit would be irreversible. He is not simply posturing for tactical reasons. Nor is he merely expressing a personal distaste for a two-referendum plan. “Out” really would mean “out”. Cummings and Johnson are baying for the moon.