A month after the referendum it is becoming clearer that Brexit will never happen. There was never a consensus on what form Brexit should take. Brexit means Brexit is meaningless as there is no agreement as to what Brexit means Some Leave voters voted to cut all links with the EU while others wanted to remain in the single market but without the free movement of labour. The Norwegian, Swiss models and rejoining (EFTA) were cited as possible solutions to Brexit. However all of these require accepting the free movement of labour, paying an admission fee and having no say in the decision making. The Australian immigration points system was widely promoted to resolve immigration concerns while the promise of spending the £350m a week on the NHS and the other crumbling public services clearly influenced voters.
In many cases the voter was buying a pig in a poke by voting for promises which could never be delivered (especially having both free access to the single market and control of immigration).
It is clear that the Brexit leaders did not anticipate their success and had therefore made no plans to implement it. Some like Johnston and Leadsom had previously spoken in favour of EU membership emphasizing its importance to UK financial services and wished to retain access to the single market. Other long term opponents such as Fox, Farage and Davies proposed to cut all ties with our largest market (50%of our exports).
Rather than take the responsibility for the implementation of Brexit Farage resigned as UKIP leader and Johnston withdrew from the Tory leadership campaign.
As one commentator put it “rats deserting the sinking ship” although it would appear that Johnston at least recognised the folly of Brexit.
Teresa May’s decision to put the hard-line Brexit campaigners in charge of the negotiations is good politics. She will avoid the blame when the Brexit ministers fail to negotiate exit terms which are acceptable to Parliament.
During the referendum withdrawal from the EU seemed so simple but that is not the case as in fact before exit is complete there are a vast number of complex issues to be resolved and many political, economic,legal and constitutional hurdles to be overcome.
I do not believe these can be resolved prior to the next general election in 2020 when the whole question of our relationship with the EU will be reconsidered.
Ten issues to be resolved before Brexit
The first stage of the exit process requires the government to notify the European Council of its intention to withdraw under Article 50 of the Treaty of Lisbon .The EU council of Ministers have already agreed that no negotiations on Britain’s withdrawal can take place until Article 50 is invoked. Theresa May has already said she will delay triggering Article 50 until next year.
It is also not clear whether the government can trigger Article 50 on the basis of the referendum using prerogative powers or whether Parliament must enact a statute empowering the Prime Minister to issue the notice. This issue is due to be tested in the courts in October and will probably end up in the Supreme Court.
A week is long time in politics
Harold Wilson’s famous saying is very appropriate particularly when we consider the political changes which have occurred in the month since the referendum. Following the triggering of Article 50 there will be a further two years of negotiations to agree the terms of exit. This is a political life lifetime and opinion can change particularly as the economic effects of Brexit become clearer. Surveys carried out by the manufacturing and service sectors have already shown the steepest fall in the economy since the height of the financial crisis and the value of the £ has fallen by more than 10% . According to the Institute for Fiscal Studies if Britain does leave the European single market for the country could be permanently poorer by 4 per cent of GDP. If these predictions are accurate public opinion could change.
Referendum “purely advisory”
The legislation setting up the referendum said nothing about the result being binding or having any legal force. Therefore it is merely advisory and parliament will have to act to implement the result. This could cause problems given that the majority of MP’s oppose Brexit.
The referendum result itself does not indicate as to how the UK should leave the EU. It is therefore up to the Government and to Parliament to ensure that the exit is managed consistently with the UK’s national interest.
Does Parliament have to trigger Article 50? The political reality is almost certainly “yes” but the answer in accordance with constitutional law is “no”.
Parliament is sovereign and may or may not decide not to invoke Article 50. As some of the negative implications become clearer MPs may decide that the case for Brexit has not been made – or was gained under a false prospectus. Such a decision is unlikely however and may not be politically sustainable but the decision will be not made until 2017 when the political climate may have changed.
More than two thirds of the MP’s and a sizable majority in the Lords are opposed to Brexit
While they will respect the referendum decision they will still have an opportunity to vote on a number of issues related to Brexit and in particular agree the terms of the withdrawal agreement once the negotiations are completed.
In light of the referendum it is not likely that parliament would simply reject a motion to trigger Article 50 but a number of other measures are likely to require parliamentary consent and these could be used to delay or obstruct the implementation of Brexit.
If the Scottish parliament and the Northern Ireland Assembly are unwilling to return EU powers which were devolved to them by Westminster the sovereign parliament at Westminster would have to legislate to revoke them. Some MP’s may be reluctant to support such legislation particularly as the people of Scotland and Northern Ireland voted to Remain.
In addition any agreement reached following the negations with EU Commission would need to be submitted to Parliament for approval. Given that the Leave campaign did not set out a clear guideline there will be many areas for potential disagreement –balance between remaining in single market/movement of labour, entry and residence rights of EU citizens living in the UK and UK nationals living in other member states, border controls in Northern Ireland etc.
62% of Scottish voters opted to remain and the Scottish First Minister Nicola Sturgeon said the Scottish Parliament would not vote for something “that’s against Scotland’s interests”. Scotland is determined to remain in EU although this conflict’s with the Brexit decision. Although sovereignty ultimately rests in Westminster many EU powers were devolved to the Scottish Parliament .These powers will have to be removed from Scottish law.
By parliamentary convention the Westminster Parliament will not normally legislate – i.e. interfere – on devolved matters, without the consent of the devolved parliament. However if the Scottish Parliament is unwilling to revoke these powers Westminster may be forced to do so .If not Scotland would have the power to block or at least stall the process by refusing to co-operate with necessary repealing or amending legislation. The Scottish Parliament can withhold consent, but in the end the UK Parliament can override that.
Following her recent meeting with Nicola Sturgeon Theresa May stated that keeping Scotland in the UK was a priority in the wake of the Brexit vote, and said she would not trigger Article 50, the formal mechanism to start EU divorce talks, until she had concluded an agreement that suited all regions of the country.
This gives Scotland considerable power to delay and frustrate Brexit negations and at least it is likely to lead to lengthy negotiations between Westminster and Holyrood with no guarantee of agreement.
Northern Ireland also voted to remain but the two largest political parties are divided on the issue, with the DUP supporting the decision to leave and Sinn Fein opposing it. The First Minister and leader of the largest party Arlene Forster voted to leave but the deputy First Minister campaigned to remain. Like Scotland many EU powers have been devolved to the Northern Ireland Assembly and legislation will have to be enacted to return these powers to Westminster.
These negotiations will be even more difficult than those in Scotland as under the Good Friday Agreement any revoking legislation will require agreement of both the First Minister and the deputy First Minster (who campaigned to remain).
The decision to leave the European Union is already facing a legal challenge from prominent figures in Northern Ireland, A cross-community coalition of politicians has written to Prime Minister Theresa May insisting that she must address legal obligations relating to the Good Friday Agreement and the peace process and satisfying the requirements of EU law incorporated into the law of Northern Ireland by the European Communities Act 1972.
There is also concern that Brexit would undermine Northern Ireland’s unique constitutional arrangements set out in Good Friday peace agreement and would require agreement of the Irish government.( All Ireland bodies/human rights)
Stormont would appear to be gridlocked on amending legislation as Mrs. Foster and Mr McGuiness, have a mutual veto over any political action.
On a more practical note it is difficult to see how the introduction of some customs barriers can be avoided .As a continuing member of the EU the Republic will be subject to free movement of labour from all EU states while Northern Ireland would require to introduce controls on immigration similar to those in the rest of the UK.
Repeal the 1972 European Communities Act
This Act took Britain into the EU must be repealed before Brexit is complete. Sovereignty rests in the Queen in parliament. UK is a parliamentary democracy, and it is Parliament, not the Government that has the final say on the implementation of the referendum, the timing of Article 50, our membership of the Union, and the rights of British citizens that arise from that membership. The terms of European Communities Act 1972 also support the legal position set out above.
MPs therefore have the right, and indeed a duty if they think the negotiated terms unacceptable and are not in Britain’s best interest to vote to reject them.
This may change when it becomes clear that some of the main promises made by the leave campaign on crucial issues such as immigration ,the EU budget / NHS, grants to farmers, universities/funding , impact on jobs and economic growth cannot be delivered.
Some Leave voters are already expressing misgivings particularly when campaign leaders such as Iain Duncan Smith backtracks on the promise of £350m for the NHS and leading Brexiters including MEP Daniel Hannan admitted that to obtain entry to the single market we may have to accept the free movement of labour.
Polls show that immigration control was central to the Brexit campaign and that it influenced many voters. Free movement of labour is fundamental to being a member of the EU’s single market. The single market is has four basic freedoms – freedom of movement of goods, services, capital and people and these must be accepted by all members. It’s deliberately misleading to promote the notion that Britain can deny any one of these freedoms and still have full access to the single market.
Can UK retain Banking Passports?
Banking Passports allow banks based in London to sell services throughout the EU. Banks and other financial companies are allowed to operate in one member state of the EU, and then provide services throughout Europe without having to be separately authorised in each country.
The governor of the Bank of France has said that unless Britain signs up to all the rules of the single market it will not be able to retain banking passports. If the banking passport is no longer available to British-based firms, then some operations would clearly have to shift to a location elsewhere within the single market. There is some evidence of this already happening.
Other EU countries have long envied London’s thriving financial centre and other centres such as Frankfurt, Paris, Amsterdam and Dublin would welcome business transferred from London.
This would be a great loss to the most important sector of the UK economy which at present accounts for 10.2 percent of GDP.
In October the courts will consider whether the government can trigger Article 50 without requiring the consent of parliament Some legal experts argue that that under our constitutional settlement, the prime minister cannot issue a notification under Article 50 without being given authority to do so by an act of Parliament.
The government argues that an Act of parliament is not necessary and that Article 50 can be triggered by the PM exercising prerogative powers. On the other hand it is argued that the use of prerogative powers would override the 1972 European Communities Act and that executive powers cannot overrule an Act of parliament which can only be altered by new legislation.
The case is likely to take some time and may go the Supreme Court.
If the court decided that a prime minister acting alone under prerogative powers lacked the constitutional authority to trigger Article 50, an act of Parliament would then be required to give her that authority.
I have tried to highlight some of the political, economic, legal and constitutional problems which need to be resolved before UK can exit the EU.
No doubt they can be resolved but it will take years of negotiations. It will be difficult to agree terms which will be acceptable to both the UK Parliament and the EU Commission and then have them approved by the European Parliament and the 27 Members of the European Council,
Obtaining agreement is likely to be difficult and prolonged particularly as both France and Germany have general elections in 2017 and will not want to be seen as being weak in the negotiations
I do not see how all these problems will be resolved before 2020 and I believe they will become a major factor in that year’s general election when the full implications of Brexit will become apparent.
Brian Wilson lectured in European Business at B.I.F.H.E for 20 years and was the first Green Party MLA at Stormont