We're being asked to pre-commit to a pig-in-a-poke Brexit. Here's how we can retain a free handby Jolyon Maugham / February 13, 2017 / Leave a comment
Published in March 2017 issue of Prospect Magazine
The marriage metaphor is apt. We have not yet taken even the first formal step. But already the decision to begin divorce proceedings with the European Union is clogged with past resentments, fears for the future, and the steady ambivalence that characterised the marriage. It was a finely balanced decision in June—and it remains a finely balanced decision now. The polls on support for “Leave” and “Remain” have barely shifted. But there is now pretty broad agreement that the time has come to trigger the separation.
So how do we make progress? The Remainers of 2016, and I am one, must start by putting aside expedient analyses of what the result of the referendum meant. It is true that it did not bind our parliament in law. But to make this point in isolation is to sidestep the democratic imperative of the result. We voted on whether to leave, and we collectively voted to leave. The fact this did not technically bind parliament does not imply that parliament can properly ignore it. And it is for this reason that I believe our parliament was in principle right to vote to trigger Article 50. And why, to answer a rather sharp question put to me by Al Jazeera, if I’d been an MP in a strongly “Remain” constituency, I hope I would nevertheless have had the courage to vote to do the same.
But putting aside expediency is something both sides need to do. The referendum left questions unanswered—and it simply denies reality to pretend otherwise. The ballot paper asked one question. No small print. And in asserting the right to read into the result what Brexit means, the government is the pallbearer claiming Grandpa would have wanted him to have the mahogany tallboy. The answering of the questions about precisely what the “Leave” vote means—profoundly important questions—is for our parliament. It is MPs who have a roving mandate from the people to answer them. Not a government whose manifesto was silent on them, being written before these questions pressed home.
Our parliamentarians knew this. They collectively could—and should—have demanded a meaningful role in shaping what Brexit means. That’s why we put them there. Why we pay their salaries and expenses. They owe us. But many lied to deny it. Others rended their clothes, and bemoaned their awful moral dilemma. Then abdicated it. We have many fine politicians but collectively, if ours really is the mother of all parliaments, she’d be well justified in sending them all to bed without their dinners.
And what of the government? It resisted the principle that it is for parliament to trigger Article 50; it recognised it only when forced to by our Supreme Court; it then showed contempt for our constitution by producing a Bill that recognises the form but not the substance of the Supreme Court decision; it next guillotined the debate to meet an arbitrary deadline which had only been jeopardised by its own flawed decision to appeal; and it finally published its White Paper only after our sovereign parliament had voted. In all of these ways the government has failed the society it exists to serve. It has embedded divisions in our society, and transformed Theresa May’s New Year call for unity into a bitter taunt.
So where do we now stand? We stand in a wild and uncertain world. Speaking before the referendum vote Donald Tusk, then President of the European Council, told Bild of his “fear Brexit could be the beginning of the destruction of not only the EU but also western political civilisation in its entirety.” His words were widely mocked—but not by this writer. Since he uttered them, the UK voted for Brexit, helping to push Trump towards a presidency that, in a handful of days, has seen threats of war with Iran and China and an invasion of Mexico, a religiously motivated ban on immigrants, the beginnings of a breakdown of the rule of law, the handcuffing of children, a visit to Downing Street of a Trump adviser who has claimed the environmental movement was “the greatest threat to freedom and prosperity in the modern world,” rule by illegal executive diktat, the weakening and foretold obsolescence of Nato, renewed fighting in the Ukraine, the defenestration of the acting US Attorney General, and a sharp increase (including from American billionaires) in applications for passports to the remotest place in the world with good coffee: New Zealand. My family and I, too, have renewed ours.
And it is into this world that we have slipped. We have cut our links with a union that has delivered peace to Europe and a very considerable measure of prosperity to us. We drift across the Atlantic towards a president who has told us he will put America first. This is madness.
We must have control. We must have a motor where we can, should we choose, pull the cord and return to a harbour that has kept us safe since the world was last at war. Our parliament may yet leave the harbour without testing the engine. It may yet rashly permit the prime minister to trigger Article 50 without understanding the consequences. But a case which—along with Green Party co-leader Jonathan Bartley, Steven Agnew, a Green member of the Northern Irish Assembly and Keith Taylor, a Green MEP—I am bringing in the Dublin High Court seeks to give us the power to travel back if we need it.
The effects of an Article 50 notification are not fully understood—and not only because May is still peddling a blind bargain, a Brexit pig-in-a-poke. We do know that, should we ask and the other 27 member states agree, we could remain. But it is brave to assume that two years of exposure to the negotiating skills of Boris Johnson, Liam Fox and David Davis will not generate even one hold-out. Besides, why should we choose for our fate to rest in the hands of the Parlament ta’ Malta in Valetta or the Народно събрание (National Assembly) in Sofia? Better for us to have autonomy over our futures—better that we take back control, as I dimly recall someone may once have said. The preponderance of legal opinion is that we could, after all, decide to remain. That we could, having notified, withdraw that notification. But, given the magnitude of the issue, our parliament must know more than what the answer probably is. It must know what it actually is.
Whatever the answer is for the UK will also be the answer for any other member state that may opt to leave before rethinking. And this means that only the court to which we all subscribe can give an answer: the European Court in Luxembourg. It may be a foreign court, and some will hate it for that, but it is only the Luxembourg court that can give us control over our own destiny.
“A world in which we have a chance to reverse a Brexit proposition that turned out to be damaging is better than the one we presently have”
We access it via a national court. And it can’t be one of ours. One of the complaints in the Dublin case is that the other 27 have breached the Treaty by excluding us from Council meetings before we’ve notified under Article 50. And that complaint can only be made by a court in one of those 27. The Irish court is the natural choice: we share an operating language, a legal culture and, because we’ve lived in the EU side-by-side ever since joining together, Ireland will be profoundly affected by our departure.
But whichever court we ask for the reference, it still ends up in the same place, the Court of Justice of the European Union (CJEU). The CJEU has signalled, gently, that it thinks this question requires an answer. While there is no certainty that the Irish Court will refer the question, if it does—with a modest tail wind—we could have a decision from Luxembourg before the summer. Or it may take a little longer. A ruling that we could unilaterally withdraw our decision would mean that the UK could—if it chooses—remain in the EU. That choice would come home to us.
If we win for the country the right to keep options open pending more evidence, we can begin to feel more optimistic. A world in which Brexit does not damage our nation’s future is a good one. And a world in which we have a chance to reverse a Brexit proposition that turned out to be damaging is better than the one we presently have. So if we assume that the Court of Justice grants us this freedom, what happens next?
May promised that the government would “put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament before it comes into force.” Within minutes Davis—recognising what this commitment could mean—had sought to weasel out of it. Yes, he was trying to handcuff the electorate of 2019 to a decision made three years earlier. No, this is not how democracy works. But relax your arched eyebrow: it is parliament and not he, Davis, that is supreme. And if Luxembourg empowers our parliament by giving to it the option of remaining, then parliament—and not Davis—will choose whether to exercise that option. And when MPs come to vote on that final deal they will take the temperature of the electorate. And if the temperature is unhealthy—perhaps because the deal falls short of the government’s White Paper promises or the “special relationship” feels like an abusive one, or living standards have declined or for many other reasons—they are very likely to draw legislation for a further referendum. One in which both choices are clear. The people will then know what Brexit means—instead of the promise of sunlit uplands, they will have an actual deal with the EU, or the lack of one.
They will also know what the alternative is—the arrangement with which the country has lived since 1973. And if the mood on the continent is that it would be better for us to remain, it is perfectly possible that the EU will dangle concessions directly before the electorate. Indeed, Johnson foretold this possibility when he wrote almost exactly a year ago that “all EU history shows that they only really listen to a population when it says no.”
Should we have that referendum, on the final deal or remaining, it will be unlosable. The conflicting interests—smaller state and bigger NHS; fewer immigrants and different immigrants; protecting domestic industries and opening up UK PLC to the world—that all combined to deliver the narrow “Leave” victory will never be able to coalesce around any actual, single position. The “Remain” vote will be what it always was—a unified vote for an imperfect Union that has delivered peace and prosperity. The “Leave” vote, too, will be what it always was—a hundred contradictory and half-formed and unplanned visions of alternatives. And it will splinter in a hundred different directions.
So I remain optimistic about our nation’s future. But we must not forget this. Among us are many whose lives are meaningfully affected by the nature of our constitutional arrangements with our friends across the Channel. For those people the practical effects are profound, and we must not overlook that. For the rest of us, it is not a change to those constitutional arrangements that we fear. It is the jeopardy to the quality of our democracy. To the country we bequeath to our children. To our values of tolerance, progress and open enquiry. And to the dignity of those a fast-changing world leaves behind. But this jeopardy does not inevitably follow from any single change in our constitutional arrangements. These battles will not be lost. They will still be there to be fought—and they will still be there to be won.