Oh Brother, Where Art Thou

Since the Labour plotters are using a moment of critical importance to the country to indulge their small-minded coup against a democratically elected leader, let me do the same.

I’ll start with Labour in order to dismiss them from the key debate which is all they deserve. The MPs, most of whom have spent their years at Westminster scoffing at Corbyn as a corduroy comrade, have never resolved their prejudice and simply can’t accept him as leader of anything. They don’t care that the membership preferred him, massively, to their emollient elitist candidates and now talk about the three-pounders – those who bought their way in – rather than true Labour supporters. They have mentally separated the two groups believing that ‘genuine, working class Labour people’ still support them not the Corbyn insurgency.

The pleas of so-called socialists that the staggered resignations were in no way orchestrated displays another example of their wishful blindness. It is an insult not to BBC journalists but to the voters. This rebellion has been on the stocks for the entire period of Corbyn’s leadership and those like Eagle who accepted posts only to renege now, planned their departure from the outset.

Judged by conventional standards, Corbyn is a failure as the norms for political leadership are long established by the inner core of British opinion-formers. Anyone failing to meet pre-set protocols is derided like the new boy at school, the one with the wrong blazer and the funny accent. This is Westminster, a private school for grown-ups. Its inhabitants are used to pointing and sniggering at anything outwith their understanding – proportional voting, Scotland etc. So Labour does have a problem. However popular Corbyn is in the country, his failure to play the game, appease the newspapers and sing God Save the Queen means he doesn’t cut it with the nomenclature. And they take themselves way more seriously than any Mirror-reading spanner-wielder in the Midlands.

But the middle of the nuclear cloudburst that is now engulfing the UK is absolutely not the right time to mount a challenge of any sort. If Labour means anything, it is to offer advice and opposition to a dangerously inept and ideologically warped right wing government which is taking the country to the brink. The people of the UK deserve and demand leadership, insight, reassurance – an alternative, if that be possible. An alternative personality cloned from the usual studio fodder won’t make an ounce of difference except to the hundreds of thousands out there to will be infuriated at being disenfranchised – again – by an elite, especially if there is a contest in which the party machine contrives to lose Corbyn.

I didn’t rate Corbyn’s EU campaign because he seems unable to sound passionate about anything that doesn’t include Palestine or Syrian refugees. They have their place but Mr and Mrs Britain have been counting pennies for the last nine years and now see more pain stretching a decade ahead. It may well the vote was lost by former Labour voters who moved UKIP-style to Leave, they started that journey long before Corbyn morphed into leader. Labour lost four million votes under Blair and Brown and it is exactly the same type of fast-talking MP spivs who now want to wrest back control.

It takes some believing that when Wodehouse comedy characters like Johnson, Gove, Farage and Duncan Smith are destroying the economy and the national reputation, the people’s party is playing musical chairs in the playground. Indeed, history may well make a harsher judgment and call it dereliction of duty – the day the country called and Labour was otherwise engaged.

Meanwhile, the SNP, cheekily, tries to prise the title of Opposition from Labour at Westminster which rather neatly sums it up. And Sturgeon plays the role of international statesman in Brussels to the dismay of her critics who prefer the Scottish cringe when they are represented on the larger stage. The way this is reported like a foreign government descending on Brussels while editorials laud her statecraft and social media voices in England wish she were their leader, adds lustre to idea of an SNP-run state-in-waiting.

I can’t see how the FM can expect anything other than honeyed words though. Her approach is political and so is the response from Commission and Parliament. It’s as if she says: I have to be seen to this. And they reply: Us too.

Realistically, what have they to offer? The UK still hasn’t triggered Article 50. Until that happens, there is nothing to debate, nothing of substance to react to. There must still be chance that with Britain behaving like the parliamentary equivalent of TISWAS that no request will be made.

The EU is a club of nations. Scotland is not a nation. The UK will always take precedence. There are important protocols and practices to be observed and, as Spain have shown, diverse interests at work.

It doesn’t mean that over the next two years or so, a situation won’t arise in which separate deals can be done over direct engagement between Edinburgh and Brussels. Who knows – licensing for financial services no longer available in London?

What may prove critical is the channel of communication itself if Scotland wants to demonstrate it has friends in Brussels with the kind of leverage that could sway votes ahead of a second referendum. Even the absence of the Barroso-inspired negativity would be a help.

Spanish resistance could turn out to be a red herring too if an independent Scotland, rather than a devolved one, is seeking early entry. It is the subsidiary element that frightens Madrid where the hard line policy is to deny even a referendum in order to contain Catalan rebellion. It is true a fast track would worry them but acceptance into membership of any European country that can meet the criteria is a founding principle of the EU that would not be jettisoned casually out of deference to one country’s domestic self-interest.

If all fails of course we have to face the stark fact that we had our chance to shape our own destiny and declined. We preferred to give back the sovereignty we held on voting day and put our trust in Cameron, Gove, Johnson et al. Yes even in Corbyn. Life is about taking your chances when they’re presented and we as a people didn’t. In that sense the Tories are right. We voted to throw in our lot with the UK come what may and while the whole basis of the UK itself has now changed, clearing the way for another vote, we have left ourselves in the hands of others to decide if that happens. Again the whip hand is in London and it is in Brussels.

Yet there are real reasons to be optimistic this time as unforeseen events unfold before us. Surely this time, if the moment arises, the Scots will seize it whatever misgivings we have over the economy or defence or relationships? There could hardly be more uncertainty than there is today. Just ask Jeremy.

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Think About It

As you know, I’m forever reading beyond my intellectual status. This piece from the London School of Economics is interesting in that it may be discussed as a possible way forward in coming months. So you’ve time to think about it. I give my own detailed opinion at the end*

Current public discussions about how the UK is to leave the European Union have been too simplified, and have failed to come up with any solution that recognises that only England and Wales voted to leave. Brendan O’Leary outlines a way forward that might enable those nations of the UK that want to remain in the EU to do so.

There has as yet been no Brexit, and there will not be – because there is no such entity as ‘Britain,’ except as inaccurate shorthand for the multi-national state of the United Kingdom of Great Britain and Northern Ireland. There could, however, be a UKEXIT. But those who insist that a 52-48 vote is good enough to take the entire UK out of the EU would trigger a serious legitimacy crisis.

England and Wales have voted to leave the European Union, but Scotland, Northern Ireland and Gibraltar have voted to remain. These differing outcomes have to be the central focus of political attention while we wait for the debris of broken expectations to settle in the Westminster parliament, among the UK’s allies, and across beached migrants and expatriates. The resolution of leadership crises in the Conservative and Labour parties will proceed amid the shocks reverberating around the world.

There is a constitutional compromise that would avoid the genuine prospect that a referendum on Scottish independence, promoted by the SNP and the Green Party, will lead to the break-up of the union of Great Britain. The Scots have every right to hold such a referendum, because the terms specified in the SNP’s election manifesto have been met—namely a major material change in circumstances.

The same constitutional compromise could diminish the likelihood of turbulence spilling into Northern Ireland, and destabilising its union with Great Britain. The same day that Nicola Sturgeon publicly indicated preparations for a second Scottish referendum, the Deputy First Minister of Northern Ireland, Martin McGuinness of Sinn Féin, demanded that a poll be held, as is possible by law, to enable Irish reunification. Sinn Féin has a point. Many in Northern Ireland fear that a UK exit would restore a hard border across Ireland, and strip away core European components of the Good Friday Agreement of 1998. Does the narrow outcome of a UK-wide referendum automatically over-ride the terms of the Ireland-wide referendums of 1998, and a majority within Northern Ireland? Good Friday should not be superseded by Black Friday. It would be perfectly proper to call for a border poll to give people the option of remaining within the EU through Irish reunification—especially if there is no alternative that respects the clear local majority preference to remain within the EU in Northern Ireland. But there is such an alternative.

The very same compromise may also weaken the pressure from the Spanish government for the UK to cede sovereignty over Gibraltar.

This compromise would build on the idea that each mandate in each territory should be respected, but without breaking up the United Kingdom, or Gibraltar’s ties to the UK.

England and Wales move outside the EU, but Scotland and Northern Ireland stay within it

The compromise would be that the bulk of the UK would be outside—‘externally associated’ perhaps—and some of it inside the EU. This change would reflect the fact that the UK is composed of two unions, that of Great Britain, and that of Great Britain and Northern Ireland, and that in each of the two unions one partner has clearly expressed the desire to remain within the EU. All four mandates within the UK would be respected in what was an advisory referendum.

Is this feasible? Recall first that many UK dependencies—including three members of the British-Irish Council, Jersey, Guernsey and the Isle of Man—are currently not part of the European Union. So it’s already true that sovereign states, including the UK, have parts of their territories subject to their sovereignty within the European Union, and parts of them outside. The terms of the foundational treaty, the Treaty of Rome, also envisioned associate status — they were designed for the UK.

Then consider past precedent. Greenland, part of Denmark, seceded from the EEC, but Denmark remained within the EEC. That, of course, had few consequences for power within the European Union given Greenland’s small population, and the components of the UK that remain within the EU would not be entitled to the same rights that currently are held by the UK as a whole.

Now consider politics going forward. Negotiating UKEXIT is not going to be easy for the next Prime Minister and Cabinet—indeed the difficulties may precipitate a re-alignment of party politics and a general election.

The Westminster parliament must give effect to the advisory referendum, and it will have to deliberate over the consequences of imposing an EU departure against the majority will of Scotland and Northern Ireland.

The consensual solution would be to negotiate for the secession of England and Wales from the EU, but to allow Scotland and Northern Ireland to remain—with MEPs, but without representation on the Council of Ministers, though with the right to have a single shared commissioner.

To work this compromise requires part of the UK to remain within the EU and that would require representation for the two components that remain inside the EU’s institutions—and the UK’s overall consent for the same. Retaining MEPs in Scotland and Northern Ireland would be easy. They would be numbered as currently, proportional to population, and this would have no major implications for the big states.

But London ministers could not retain power in the Council of Ministers if the bulk of the UK is outside the EU. I suggest that the now vacated UK Commissioner’s role could be kept, but the appointment could be rotated between Scotland and Northern Ireland, in a 3: 1 ratio over time, reflecting Scotland’s greater population. The Commissioner would be nominated by the relevant government and appointed by the UK government. (A judge to serve in the European Court of Justice could be nominated in the same way.) The retention of one Commissioner and their MEPs would give Scotland and Northern Ireland a say in agenda-setting and in law-making. And it would remove any UK ministerial veto over EU decision-making.

The future role of the Westminster parliament would be to process EU law that applies to Northern Ireland and Scotland—strictly as an input-output machine—thereby ensuring that Scotland and Northern Ireland have the same EU law, and that the Union is retained. It would be up to Westminster to decide which components of EU law they applied to England and Wales—a convenience that may be helpful in dealing with the repercussions of what has just occurred.

The currency is a reserved Crown power, and the proposed compromise would not lock Scotland and Northern Ireland into the Eurozone. Rather as part of the UK, Scotland and Northern should inherit the entire UK’s position under the Maastricht treaty (namely, they would stay with sterling unless the UK let them go into the Euro). However, Scotland and Northern Ireland would not be able to apply the new terms that Prime Minister recently Cameron negotiated on the supposition that all of the UK would remain in the European Union.

All of Ireland, Scotland, England and Wales would be an internal passport free-zone. However, one negative consequence of this compromise would be a hard customs border in the Irish Sea. But that, I think, would be better than one across the land-mass of Ireland.

Another effect would be a hard customs border between Scotland and England. If all of Ireland and Scotland remain in the EU there cannot be a single market in the UK, as defined by the EU, and therefore a customs barrier will have to exist. But note that a hard customs border will materialise in any case if a Scottish referendum led to independence.

Ireland, North and South, and Scotland could not join the Schengen agreement because that would mean that England and Wales would lose the control over immigration which was emphasised by the leave side in the referendum. But then, they are not part of Schengen at present, and there is no evidence that a majority in any of the three countries wants to be.

Would there be any other benefits to this idea, aside from keeping the UK together, which Unionists of all stripes say they want? Yes, UK enterprises could re-locate to EU zones within the UK, which would soften the negative consequences of an entire UKEXIT. These arrangements would leave England and Wales to experiment with whatever policy freedoms they preferred.

Citizenship and migration-law, would have to be reconsidered, but the ensuing difficulties could be negotiated. These matters will be on the table anyway.

(See the full article here http://blogs.lse.ac.uk/brexitvote/2016/06/27/de-toxifying-the-uks-eu-exit-process-a-multi-national-compromise-is-possible/

*Wouldn’t it be easier just to go for independence?

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Clusterf**k

Sorry! Been missing for a few days. Thought I’d keep my head down (while all around lost theirs). Best I think to let the dust settle. But don’t think I haven’t been in command behind the scenes. Oh dear me, no. I’ve been monitoring events in stereo. Anyhow I reckoned it was time to emerge as the world went to pot so I addressed the family this morning to ensure stability. They seemed reassured although the wee one did ask: Daddy, are you alright…?

The technical term for what is happening in Britain today is clusterfuck. Error piles on misjudgement. Mistake on mishap. Mistiming hits unforeseen circumstance. Ignorance collides with inaction and before you know it we’re at Defcon One.

This is the country and this the government that told us to avoid uncertainty at all costs. When we sought self-government their tactic was to warn of Armageddon and say any change amounted to uncertainty, for how can you be sure of the consequences.

Look at us now.

Is the Prime Minister in power? He’s in Downing Street but then so is the cat. The currency has bombed, stocks crashed, banks prepare to move staff out, future access to trading markets faces restriction, the credit rating wobbles yet the man whose job it is to stand guard is AWOL for three days. The insurgent Brexiteers look as stunned as the rest of us. Neither they nor the government they want to replace have a plan. Not even an A4 with bullet points. Nor a Note page on an iphone. Not a fucking scooby. Rebels without a clue, the lot of them, so used to being taken seriously by an unchallenging media that they believe their own publicity. Boris is brilliant. Michael is a genius. Until they’re not. Until they are exposed as blustering blowhards disconnected from the populace, pandered to by camera crews and fawning, uncritical hacks who are themselves all actors in the Westminster Playhouse.

Some of us tried to put the point that there was little certain about a corrupt and splintered Union except its inevitable decline. But what you know always counts for more than airy expectation. The default position of the UK as a country being run by an elite and for an elite meant the relentless rise of London continued at the expense of the vast swathe of Britain. A representative system that suits the two big and sometimes interchangeable parties distorts the basic democratic framework. Labour’s endless search for meaning – and now organisational integrity – still proves fruitless. The media is overwhelmingly right wing and xenophobic, routinely misleading people with messages that incite hatred.

And in the middle of it all is Cameron, as smooth and plausible as Blair and as morally vacuous, a chancer whose demeanour and ‘communications skills’ carry him through. But not this time. The endless trimming and compromising with an intolerant English hard right first corroded the UK’s relationship with moderate conservatives in Brussels, taking his MEPs out of the EPP grouping, then pushed him into anti immigration policies he couldn’t fulfil and finally to offering a referendum he might have won had he the wit to prepare for it and time it properly. His paint-peeling idiocy has made his country a laughing stock, a hapless bystander and a by-word for racism across the continent, never mind the loss of jobs, income and security to follow. Cameron is now historically a failure, a straw man desperately recounting his successes ahead of an ignominious departure. When we think of what might have been with a Yes vote – whatever problems were thrown at us – the contrast with today’s inglorious collapse is painful.

And yet there springs the hope. Britain has truly changed. What the Americans like to think of as eccentric but essentially sensible Britain was turned to rubble last Friday morning. The Britain whose post-imperial connections and calm authority impressed the Germans and French was flushed down the diplomatic toilet. Instead of the soaring strings of Elgar the world hears Dueling Banjos. The UK that has been an integral part of Europe all, or most of our adult lives, has evaporated. While the politicians ploughed it for votes and created an intolerant atmosphere they missed the fact that voters were using Europe and immigration as a trigger a wider unrest. Where once the protest votes would go to Labour against a Tory government, now they went to UKIP to better vent their fury. Labour’s disconnect from its core, not nationalism, led to its demise in Scotland. What is to stop it happening in England? On a related point, Corbyn’s campaign was shockingly bad and may well have made the difference in losing our EU membership. If it’s true he deliberately didn’t support his own party’s efforts fully, he deserves to fall in the on-going coup.

So the country we thought we knew and to which No voters owed their allegiance is now a closed volume put back on the library shelf of history. It is for them an existential question. Do you still want to be part of the new UK rejecting EU membership and all the civilising influence that brings to be run remotely by a government of ultras and kippers, Britain’s answer to the French FN and Austria’s Freedom Party?

It isn’t just about the practicalities which themselves are worrying enough. Your country is an identity. It has to fit you and feel comfortable. Identity politics was derided, along with much else in the indyref, but that’s just denial. Your sense of self and place are as important as the air you breathe. I suspect many are discovering that post-Brexit and realise they now don’t belong where they thought they did. And, for the umpteenth time, identity is only exclusive if you make it so. Being proudly Danish or Norwegian doesn’t mean you shun Swedes and Germans.

For those who can no longer come to terms with what they believed was their country, alternatives beckon. In Scotland there is one ready-made, on the stocks and operating successfully which even offers on-going friendly relations with the hijacked British state.

I see some are already making the move over, some stating they were hard-line Unionist. It’s impressive stuff but, try as I might, I can’t imagine what would entice me to move the other way. If it were me who had to drop my commitment to independence, could I? What could make that happen? I suppose, and no offence here, if SNP policy was for an Islamic state with sharia law, or just any religious state run by mullahs, bishops or moderators, I’d renege. Or if Jackie Baillie had to be First Minister…

What I’m getting at is that this is a huge ask for anyone. If you’re wrestling with it, good luck. Do what you honestly think is best. If you do turn Yes, there’s no requirement other than your goodwill and your vote. You don’t have to join the SNP (I don’t) although I see 2000 did over the weekend. It will take some getting used to but it’s a well-trod path nowadays. There are many thousands before you and more to come after. And you’ll find other returning Scots tramping beside you.

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Thank You, England

I began to feel European in the early nineties when the arguments about the single currency were raging through Westminster and I was flying to Brussels and Strasbourg with other youngish types from Ireland, Denmark or Greece. We got it, were part of it and sat in Kitty O’Shea’s within sight of the Berlaymont with a glass scoffing at live broadcasts from the Commons of plummy MPs demanding freedom from Europe.

Sad, backward, exclusive and borderline racist would be a widely-held view of their antics, like 19th century warmongers voting for full military powers to be given to the East India Company. I liked being Scottish over there because I felt connected to the continent-wide movement that was embracing the old warring nations of Europe and was quite distinct from the faintly detached English journalists with their put downs and comes-as-standard sense of entitlement. We, the Scots that I knew, seemed to be moving with the grain, modernising and opening up to influence and enlightenment. A key difference of course was that we didn’t see the EC as a threat but as an ally and a bridge to prosperity. To anyone schooled in the ways of London, on the other hand, the whole Euro contraption was a vehicle for ludicrous no-hopers trying to catch up with the real global power.

The messages beamed back to Blighty – by, among others, Boris Johnson of the Telegraph – reflected the readers’ own prejudices about foreigners and half-developed civilisations playing at being real countries ‘ like ours’. The officials I knew despaired. The politicians admitted we weren’t really Europeans at all. But I saw how Scotland could fit right into this network of influence and make friends. Spending time with colleagues from every country in the club opened me up to a positive influence which was underlined when reporters from about-to-be entrants Poland and the Baltics showed their amazement at our wealth.

So my starting point for the referendum was Yes. In. Remain. Restez. An exit was the view of the ill-informed and the right wing cranks.

And, frankly, it still is. The right wing cranks are a parade sorts who make me recoil on sight – Redwood, Duncan Smith, Fox, Farage. None of these people has the faintest interest in European solidarity built on workers rights and a work-life balance. They are money spivs, manipulators and exploiters who used the dispossessed to win. Those same dispossessed will now pay the price for the Brexiters’ success.

You aren’t supposed to blame the voters. Always respect them. Don’t patronise. But if you ask just what plumbers in the Midlands or potato pickers in East Anglia are going to get out of this, it’s hard to escape the worry they are the unwitting dupes in a power game.

This referendum had no alternative manifesto. There was no White Paper. The same Unionist politicans and tame journalists who harried the SNP and analysed to death their prospectus in 2014 said nothing about a total absence of a plan. Who supported it? Who in the Commission had hinted at a deal? What’s the timetable for a trade arrangement? How many migrants will be allowed in? We don’t know and neither do the Brexit voters who have supported an emotional idea minus any practical prospectus. Nothing wrong with emotion – I’m a nationalist – but without a plan it’s meaningless and potentially destructive.

A chimera was created in which all the grievances of the dispossessed and disenfranchised were conveniently bundled into a big bag called immigration. Even areas where there is virtually none bought it. This is how you hit back, they were told. Forget the facts and the nuance. Smash the system by kicking the establishment – and replacing it with another establishment which, almost unbelievably, cares even less about you.

What I hate is the idea that all across Europe we are now viewed as xenophobes and quitters regaled by Marine le Pen and Geert Wilders. Instead of quaint, eccentric, one-foot-in, one-foot-out Brits we are now the revolting guests shunned by all.

How refreshing to hear the First Minister pay her respects to our European friends living in Scotland yet denied a vote. Those who don’t want to play the disgusting guest any longer now have the starkest of choices and a way of extricating ourselves from what looks like a brutish rather than a British nationalism.

Without rushing into the teeth of a indyref2, Sturgeon was passionate and, for me, scarily committed to securing our place in Europe to the extent of preparing legislation. Exciting stuff. I know the case in some ways is harder to make for independence now, but as I wrote recently, that overlooks the grim state of Britain after Brexit. We were told Yes meant no EU membership…it meant the national credit rating falling…the currency losing value…shares tumbling…companies relocating…damaging uncertainty. And what have we got?

I think we should remove the claymores from the thatches, make friendly noises to foes, get a plan, breathe some heady air – and prepare for independence. Right now it looks like England may have delivered the opportunity for self-government that Scotland itself couldn’t grasp. Thank you, friends. Thank you.

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‘Academics Not Entirely Useless’ Shock

There are times when even I have to admit, through gritted teeth, that some people are so smart they know more than I do. Not only that but they write clearly and concisely and do it better than I do. (It’s only because they’ve been to university and done a thesis thingy and can sing gaudeamus igitur and stuff). So here, courtesy of the Constitutional Law Association, is Dr Alan Renwick of the Constitution Unit – who looks young enough still to be a student – with all you need to know if the wheels come off the sanity of the British people tomorrow and there’s an Out vote.

As the referendum on the UK’s membership of the EU draws closer, the result is impossible to predict. Many are asking what, in practical terms, would happen if we vote for Brexit. Alan Renwick explored some key elements of the withdrawal process before the referendum campaign began. Here, he gives a point-by-point overview of what the road to Brexit might look like.

The effect of the referendum

1. We will not immediately leave the EU if the result on 24 June shows a majority for Brexit. Indeed, in purely legal terms, the referendum result has no effect at all: the vote is advisory, so, in principle, the government could choose to ignore it. In political terms, however, ministers could not do that. We should presume that a vote to leave means that we will leave (see point 16) – though there is scope for various complications along the way.

2. The Prime Minister would very likely announce his resignation quickly, but would stay in post until his successor was chosen. There is much speculation that David Cameron would be out of Downing Street within days, and it is true that his position would probably become untenable. But the Cabinet Manual is clear (at paragraph 2.10) that he cannot go until he can advise the Queen on who should form the new government. Conservative party rules set out a two-stage leadership election process: first, the parliamentary party, through successive ballots, whittles the field down to two candidates; then the party membership, by postal ballot, chooses between these. Recent experience suggests this would take two to three months.

The mechanisms of withdrawal

3. Following a vote for Brexit, a period of negotiations about the UK’s future relationship with the EU would begin, as set out in Article 50 of the Lisbon Treaty. The Prime Minister triggers this by notifying the European Council (the collective body of the 28 member states’ prime ministers or presidents) that the UK intends to withdraw. That opens a two-year window for negotiating withdrawal terms – a period that can be extended, but only with the unanimous support of all the member states. We leave once a deal – which requires the support of the UK and a ‘qualified majority’ of the remaining 27 member states (specifically, 20 of them, comprising at least 65 per cent of their population) – is struck. If the two-year period comes to an end with neither a deal nor an extension, we leave automatically on terms we may not like (see point 4).

4. Article 50 skews the balance of power in the negotiations in favour of the continuing member states. That is because of the two-year rule and the unanimity requirement for extensions to that period. If we find ourselves outside the EU with no deal, we automatically revert to World Trade Organization (WTO) rules on trade. That means that tariffs have to be imposed on trade between the UK and the EU. This would be bad for everyone, but especially for the UK. Strenuous – and probably successful – efforts would be made to avoid it. But, as we explore in our briefing paper on the impact of Brexit on other member states, some countries would strike a very hard bargain. We can presume that the UK would not get its way on everything.

5. There is no requirement for the Prime Minister to trigger Article 50 immediately after a vote for Brexit. It would be sensible for the UK to work out its negotiating position and construct its negotiating team before setting the clock running. The government might also hope to hold preliminary discussions with other member states – though how far they would be willing to engage at this stage is unclear. At the same time, given the damaging effects of uncertainty, there would be strong reasons for avoiding too long a delay.

6. It is vanishingly unlikely that the UK could withdraw without triggering Article 50 at all. Vote Leave suggests that it might be possible to leave via Article 48, which sets out the procedure for revising EU treaties. But a simple majority of member states could block even a request to consider such a route, and the amendments themselves would require ratification by every member state. Given that the Article 50 process skews the balance of power towards the continuing member states, we can presume they would insist on its use.

7. Both sides in the referendum campaign agree that this whole process would take several years, during which the UK would remain in the EU. The Remain side has always argued that the negotiations would be lengthy; the Leave side has now indicated that it would like to complete the process by 2020. Until the negotiation process is complete, the UK remains fully subject to its obligations under EU law. Thus, while Vote Leave says it would introduce measures early in the withdrawal process to limit the writ of the European Court of Justice, doing so could violate the law. Professor Kenneth Armstrong has analysed the flaws in this plan in depth.

The content of the negotiations

8. The process of withdrawal would involve three sets of negotiations:

First would be the negotiation of the withdrawal terms themselves. These would likely include, for example, an agreement on the rights of UK citizens already resident in other member states and of EU citizens resident in the UK. As Professor Sionaidh Douglas-Scott has explained, those rights – contrary to what some have said – are for the most part not protected under existing international law.
Second, it would be necessary to negotiate a trade deal with the EU. The official Vote Leave campaign has confirmed that it wants such a deal and correctly points out that everyone’s interests would be served by having one. The content of the deal would, however, be hotly contested. Vote Leave focuses on securing free trade in goods and argues that, because the UK imports more goods from the EU than it exports to the EU, we could expect to be offered a good deal. But there would be greater difficulties in services. Open Europe (which campaigns for EU reform and is neutral in the referendum) highlights particular difficulties in financial services, where it rates the chances of maintaining current levels of access to the EU as ‘low’.
Third, the UK would have to negotiate the terms of its membership of the WTO and would want also to negotiate trade deals with the over 50 countries that currently have such deals with the EU, as the existing arrangements will no longer apply to the UK from the moment of Brexit. The WTO itself has warned that this would not be straightforward: the UK would not be allowed just to ‘cut and paste’ the terms of WTO membership that it currently has through its EU membership. Similarly, while we might hope that other countries would agree quickly to extend the EU rules to the UK, we cannot presume that all would – and the UK itself might want different terms in some cases.
These negotiations could run in parallel, or the UK could negotiate withdrawal first and future arrangements later. As Professor Adam Lazowski has pointed out, there are difficulties in both approaches.

Could parliament influence the process?

9. Parliament has no formal say over whether or when Article 50 is invoked, as this lies within the royal prerogative powers that are exercised by government. Government’s powers in matters of foreign policy are very extensive, and parliament has veto rights only in respect of treaties. If parliament were to pass a motion calling on the Prime Minister not to invoke Article 50, we might nevertheless expect him (or perhaps, by then, her) to respect that. But the Prime Minister could claim the authority of the popular vote to justify ignoring such pressure.

10. Parliament would, however, be able to vote on the withdrawal deal, as that would be a treaty. Indeed, as we examined in our briefing paper on Brexit’s effects on Westminster and Whitehall, parliament would expect to be updated regularly on the negotiations and to have its views heard, perhaps through votes on specific issues. The large majority of MPs currently favour staying in the EU. If they wanted a post-Brexit deal involving substantial ongoing integration with the EU – perhaps akin to Norway’s arrangements ­– they could potentially have the power to reject any deal that did not provide that. Whether they would do so would depend in part on the political situation and the state of public opinion at the time, both of which are highly unpredictable. It would depend also on the withdrawal timetable: if the two-year window were near to closing, rejecting the deal on the table could be very risky.

11. Beyond the negotiations, parliament would also have a great deal of legislating to do. Withdrawal would require repeal of the European Communities Act (ECA) of 1972 – the legislation that underpins the UK’s EU membership. But there would also be two much larger tasks. First, a great deal of legislation has been passed over the last forty years that enacts provisions required under EU membership. Parliament would presumably wish to review – and in places amend or repeal – this body of law during or following withdrawal. Second, EU ‘regulations’ apply directly in the UK without domestic implementing legislation and would automatically cease to apply upon repeal of the ECA. But it would be essential to retain some of these, at least in the short term: otherwise, we would lack rules on many important matters. Agata Gostyńska-Jakubowska points out, for example, that much of the trading done in the City of London would overnight become illegal unless new provision were made. The process of reviewing this legislation – working out what to keep, what to amend, and what to remove – would be lengthy, complex, and contested. It has been discussed further on this site by former Clerk of the House of Commons Lord Lisvane.

Could Whitehall cope?

12. Whitehall, meanwhile, would be severely stretched by the mammoth exercise of withdrawal. The civil service has zero spare capacity after the cuts of the last five years: many departments have seen budget cuts of over a quarter since 2010, and total civil service employment has fallen by almost a fifth in the same period. Further spending reductions for the coming years were set out in last year’s spending review. The UK has no current capacity at all in trade negotiations, as this is a job that has been outsourced to Brussels. The task of reviewing 40 years of EU and domestic legislation could take five or ten years. It would make it very difficult for the government to embark on any new policy while it reviews all these old policies. Whitehall also risks becoming very clumsy in handling important relationships (such as with Scotland: see below) because it would be so severely distracted.

What about Scotland and Northern Ireland?

13. Scotland’s position within the UK would probably become even more contested. The polls suggest that, if the UK votes for Brexit, that will reflect the result in England and (probably) Wales: the Remain side is well ahead in Scotland and Northern Ireland. This would inflame nationalist sentiment in Scotland. There is widespread speculation that it would lead to a second independence referendum. That is indeed possible. As we explore in our briefing paper on Brexit’s effects on devolution and the Union, however, Nicola Sturgeon would not move quickly: she has said that she will call a second referendum only if polls consistently show substantial majority support for independence. Brexit would in some ways make independence harder: not least, the combination of the two would create an EU border between Scotland and England. The outcome could therefore be that Scotland becomes less satisfied with the UK but more locked into it.

14. This sense of grievance could be further aroused by the process of withdrawal itself. The Scottish Parliament, Welsh Assembly, and Northern Ireland Assembly are all legally required to operate within EU law. In order to withdraw from the EU cleanly, these requirements would have to be repealed (see here for the difficulties that would ensue if they were not). By convention, this would require the consent of the devolved legislatures, which they might well refuse to grant. Sionaidh Douglas-Scott argues that Westminster could precipitate a constitutional crisis if it chose to override such refusal. Some others doubt that. Nevertheless, it would add to the sense in Scotland that London is breaking the promises it has made to the Scottish people.

15. There are concerns in Northern Ireland that Brexit would undermine the peace process. As our briefing paper on Brexit and devolution also explores, the EU has long been involved in the peace process and gives substantial funding to peace initiatives. Furthermore, experts in both the North and the Republic question whether the existing Common Travel Area between the UK and Ireland could be maintained following Brexit, which would require imposition of a ‘hard border’. The great achievement of the last 20 years has been to remove the border as an issue in Northern Irish politics; its reintroduction would fuel insecurities and threaten the stability and cohesion of the power sharing arrangements.

Could there by a second referendum?

16. There is no easy route to a second referendum. There has been much speculation around the question of whether a second referendum to finalise our future relationship with the EU could be held. As I explored in detail in my earlier post, various kinds of second referendum can be imagined, but all face considerable difficulties. One idea, floated last year by Boris Johnson and revived yesterday by the Sunday Times, is that we might take a referendum vote to leave as an opportunity to negotiate not Brexit, but rather radically revised terms of ongoing membership. In the wake of a public vote specifically for Brexit (unless perhaps the margin is very tight), however, it would be politically very difficult for any Prime Minister to pursue such a path. Another idea is a vote on the terms of the Brexit deal once they have been negotiated. The alternative to accepting the deal might either be that we stay in the EU after all or that we go back and try to negotiate something better. The trouble with both options is that they are legally perilous: Article 50 provides no mechanism for withdrawing a notification of intent to leave the EU, and the two-year limit means that, if we rejected a deal, we could find ourselves on the outside by default. In practice, some way round these difficulties might well be found – but the UK might have to make significant concessions to get there. So, while scenarios leading to a second referendum are conceivable – such as if government and parliament are at loggerheads over the terms of the deal – we should presume that leave means leave.

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