© 2017 Kirsty Hughes
As the political shambles of Brexit continues, almost 70 leading Scottish figures called for a halt to Brexit earlier this week. This is a significant shift in the UK debate where, in recent months, the focus has been on whether the UK should aim for a hard or soft Brexit – in or out of the EU’s single market and customs union – and on whether it risks falling out of the EU with no deal at all.
But is an exit from Brexit possible? How would the EU27 respond, and what would have to happen in the UK for such a decision to be taken? Legal, political and democratic questions abound.
EU27 attitudes if the UK gave up on Brexit
Theresa May triggered Article 50 in May – setting off the two year process after which the UK will leave the EU with or without a deal, unless that time period is extended by unanimous decision of the EU27 and the UK. But Article 50 is silent on whether – and how – notification of the intention to withdraw could be revoked.
Many legal commentators have argued that the UK could simply withdraw its notification and continue with its current membership status – including retaining all its opt-outs. Others though have disagreed, including on the key question of whether such a withdrawal of notification could be done unilaterally by the UK.
Politically, the EU27’s two most powerful leaders, Germany’s Chancellor Angela Merkel and France’s President Emmanuel Macron, have both recently said the door would still be open to the UK if it changed its mind on Brexit.
But while German voices can be heard saying there will always be an exit from Brexit on offer, some are, at the same time, starting to say it may, even so, be better for the EU27 if the UK does leave. That would allow the EU27 to move ahead on a range of projects that the UK might be lukewarm on or opposed to.
There is a balance here for EU27 interests. The UK leaving the EU weakens the block in many ways politically and economically and leaves one of Europe’s largest countries and economies on the EU’s sidelines. But it also takes out of the mix the UK’s increasingly sceptical, semi-detached approach to its (former) position in the EU – even before the referendum. The political chaos in the UK at present is appalling EU27 observers – a UK in crisis does not look like the most attractive of EU partners.
For Ireland – with its own economic and political interests very hard hit by Brexit – the UK changing its mind would surely always be welcome, but for other member states, the UK staying may be, to some extent, an increasingly mixed blessing. In Brussels, some rather seem to hope the UK will indeed leave.
What the EU27 would surely not want to see is the UK decide to stay in the EU after all if UK politicians and public were still deeply divided on Brexit. A UK that stayed in the EU after a strong remain vote in a second referendum would be a very different proposition to a UK that stayed in either after a narrow and much disputed vote in parliament or after a very narrow remain victory in a second referendum.
The politics of staying in
Politically and legally, there is also much debate about whether the UK could simply unilaterally withdraw its Article 50 notification. The European Parliament said not, in its resolution on Brexit in April: ‘a revocation of notification needs to be subject to conditions set by all EU-27, so that it cannot be used as a procedural device or abused in an attempt to improve on the current terms of the United Kingdom’s membership.’ The European Commission has also insisted that there can be no unilateral withdrawal: ‘once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.’
Whether the EU27 would have to agree unanimously (or by a qualified majority) to the UK withdrawing notification, whether the UK – having decided to stay – would contest that at the European Court of Justice, and whether the EU27 might try to impose conditions on the UK’s remaining in the EU are all open and major questions.
Timing may be of great importance here. If the UK decided later this year that Brexit was creating too much political, economic and social instability and damage and that it wanted to stay in the EU, that decision might well be welcomed by the EU27. But if the UK goes through very difficult negotiations for the next 18 months, potentially with deteriorating relations with the EU27 over that time, then a decision to stay in the EU in late 2018 or early 2019 might be less politically welcome then than it could be now – not least as the EU27 continues to adjust to its new political and strategic dynamics at 27.
And the politics of changing our minds
There are also key political and democratic questions for the UK over whether and how it could change its mind on the EU. While the Liberal Democrats have, in particular, argued for a second referendum once the terms of the deal are known, with a presumption that they would argue for staying in the EU as better than any conceivable deal, this may, by the end of 2018, be very late in the day. But the Lib Dems are not arguing to halt the Brexit process now.
Meanwhile, the Tories are currently infighting both over the type of Brexit they want (despite talks having started a month ago) and over who will succeed Theresa May. Tory voters, according to opinion polls, still back Brexit strongly. Labour are also sticking to their pro-Brexit position, despite almost 80% of their voters now supporting remain, according to one recent poll.
In Scotland, the SNP argue for a soft Brexit of staying in the single market and the customs union, and at the same time for eventual independence in the EU (despite having pushed back any second independence referendum). What they have not done, despite their pro-EU views and the damage to Scotland (independent or not) of Brexit, is support the Lib Dems in arguing for a second EU referendum – not wanting to tell English voters what to do (is the line).
Ironically, the political party positions of Tory and Labour parties are now at odds with UK public opinion which has swung back towards ‘remain’ (with varying margins according to different polls – one giving ‘remain’ an 8% lead). If public opinion shifts more strongly, if Tory divisions undermine ever more the ability of the government to manage Brexit, and if the economic fall-out worsens, the politics of this sticking with Brexit approach might shift.
But it would take a major shift by Labour, committed to Brexit under Corbyn, for it to move back to its traditional pro-EU stance. And it would then need either a new general election or enough Tory rebels to force through a vote to suspend the process and hold a second referendum. For now, the UK does not appear to have the political leaders it would need to bring an end to the Brexit process.
But the debate, even so, is shifting. Many have argued that the referendum result – with its 3.8% lead for ‘leave’ – must be respected. UK politicians have concurred with this. But the UK has no written constitution, and certainly no clear understanding of how to move beyond, or reverse, the results of a referendum (legally advisory, politically binding). In a democracy, arguments to change course, to change our minds, on something as major and far-reaching as Brexit, can be had. But how to reverse a decision is an open political and democratic question.
Until recently, the UK debate has focused on ‘hard’ versus ‘soft’ Brexit – formerly pro-EU politicians too nervous of being called undemocratic, or worse, to argue for the UK to think again. Others have suggested that reversing Brexit would undermine political trust, where the ‘leave’ vote was already a populist rejection of the elite (albeit lead by elite leaders). Others still suggest that the English, in particular, need to go through Brexit and face all its costs if they are eventually to come out the other end with a clearer sense of identity: it’s a strange, costly and very unpredictable route through an identity crisis.
Even a ‘soft’ Brexit where the UK stayed in the EU single market – perhaps too in its customs union – would still have economic costs and major democratic costs, with the UK then implementing all EU rules (and trade policies in a customs union) with no real say and no vote. But some argue this is the best the UK can hope for, since the result of the referendum must be respected. A ‘hard’ Brexit would have much more damaging economic impacts, some of which are starting to be seen even ahead of any exit deal or clear path to a new UK-EU27 trade deal. So there is plenty of scope to argue the case for staying in the EU – on democratic and economic grounds. But politicians for now are not willing to lead such a debate.
The key to a possible rejection of Brexit, to the UK staying in the EU, is then a shift in both political and public opinion. The shift in public opinion has already begun – even without a political lead. How much further it may shift – and whether any politicians will start to offer a real lead (rather than a referendum on the deal further down the line) is an open question. But if both public and political opinion started to shift towards ending Brexit, the route would be opened up to a second referendum.
In Ireland, there have been two recent repeat referenda after rejection of the Nice and Lisbon Treaties. While some in the UK have looked askance on this, in Ireland, given its written constitution, the government has to ask the public for permission to transfer powers to the EU. And so there is no democratic or constitutional block to asking again. The UK, in contrast, is making this up as it goes along.
But in the face of growing evidence of the chaotic damage that Brexit is causing and will cause, the UK has no constitutional block to calling a second referendum on the EU. The questions are political and democratic. The 2016 referendum was a second EU referendum anyway – but should the UK have to wait 40 years for another, or just one or two? It’s a political question – and one where a strong shift in public views could underpin the case for an early second referendum.
One risk of a second referendum is that it might be won very narrowly, leading to a continuing political divide over Brexit, and arguments over whether such a second referendum has any more legitimacy than the first. A strong vote for the EU in a second referendum would both mute such divisions and arguments, and reassure the EU27 that the UK was staying in the EU as a constructive, committed partner.
Such an outcome is a long way from where UK politics is today. But UK politics is proving unstable, chaotic and unpredictable. If public opinion continues to shift, and more voices speak out, then UK politicians may find themselves pushed towards facing up to the huge damage of Brexit – and finally arguing for the UK to think again and to remain.