The Neverending Brexit Endgame
Now that Christmas is out of the way, Parliament’s vote on the EU withdrawal agreement, delayed by Theresa May in December, is imminent. The ever-reliable Ian Dunt has explained Wednesday’s extraordinary events in the Commons, which came two days after a small group of Brexit supporters staged a yellow vest protest and three days after the government staged a fake traffic jam intended to show that we could survive without a deal, so there.
Meanwhile, as real life that feels like fiction unfolds around us, a fictionalised version of the EU referendum campaign has appeared on our TV screens: here’s Carol Cadwalladr in conversation with the screenwriter about what it got right and what it omitted. (It was a bit oversimplified, but Cumberbatch was pretty good, and as a fellow Rory I always enjoy watching Kinnear.)
At this point I’m wary of making predictions, but the latest Grieve amendment, requiring the government to deliver Plan B within three days of a parliamentary rejection of Plan A (instead of three weeks), opens up new possibilities. We need to get past 15 January and the withdrawal agreement being voted down and see where we are. When the options are starkly no deal or a new referendum that promises to be every bit as awful as 2016’s and might not resolve anything, we may see the Overton window shift again and bring outright revocation of Article 50 into clearer view. If May wants to save her own neck, and all her actions so far have suggested that this is high in her priorities, she’ll want to avoid a fresh election at all costs. If she can deflect the blame by claiming that Parliament directed her to revoke Article 50, there’s a chance she’ll do it. A lot is going to depend on Corbyn’s stance, and whether he splits his own party over this.
We’re all captives of Theresa “Childcatcher in the Rye” May and her personal whims, and to a lesser extent Jeremy “1983” Corbyn and his.
Unless Article 50 is revoked or extended, a no-deal Brexit will happen by default in only eleven weeks. Whether Parliament gets a chance to force a revocation or request an extension in the face of the government’s determination to ignore and sideline it depends very much on the procedural back-and-forth taking place on the floor of the House of Commons. Which is why all the right-wing press are doing their damnedest to demonize John Bercow.
Looking again at the ECJ press release about its ruling of 10 December:
When a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification. That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired. The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council. Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end.
The key line here is “this unequivocal and unconditional decision must be communicated in writing to the European Council”. If Parliament directed the government the UK to send the Council a letter saying simply, and only, “the UK withdraws its Article 50 notification”, that would be both unequivocal and unconditional; and given that Parliament is sovereign in the UK, and that this Parliament was elected after the Article 50 notification was sent, would (I would argue) result from “a democratic process in accordance with national constitutional requirements”. Any domestic rhetoric around having another go when we’re ready would be irrelevant: what matters is what’s in the letter.
“Having another go” might go against the spirit of the ruling that a revocation should be unequivocal, but the ECJ would only be given an opportunity to offer its view on whether a revocation was or was not genuine if the EU brought a legal challenge against it. The chances of that seem small, as the EU aren’t the ones who’ve displayed irrationality and desperation in all of this. Many EU figures, in the Commission and the Council, have said they would welcome Britain canceling Brexit. Why would they want to revoke a revocation?
If the UK then turned around and actually retriggered Article 50 with indecent haste—within a few years, say, or even a decade—then you would expect the EU to say “we just went through all this, so here’s the withdrawal agreement as previously negotiated, take it or leave it”, and to be a lot less accommodating of UK attempts at a do-over. Businesses, and other countries we were hoping to do fabulous deals with, would know not to trust us. We would buy up to another two years in limbo while waiting for our new exit day, but that would be it.
That’s why Corbyn’s “let Labour have a go” plan, at this stage of the game, is bollocks. He had his chance to ask the UK people to let Labour have a go at his preferred Brexit in the 2017 election, when instead he maintained an air of ambiguity in the hope of wooing Remainers. Which worked, arguably, although not quite enough. I doubt it will again.
Meanwhile, in “Contempt of Parliament is a Way of Life” news, Downing Street has said that if Theresa May’s deal were voted down, any debate over a Brexit plan B would be ninety minutes long and only one amendment would be allowed.
Big shifts have been happening over the past couple of months, including in public opinion. The more polls that show that a solid majority of the country would now Remain, the less sustainable is the idea that we should be bound by what we said two and a half years ago. British Parliaments aren’t bound by what they previously thought, so why should the people be? If it isn’t enough to get Parliament to revoke Article 50 outright (and if evidence of illegality and Russian interference hasn’t been enough, it probably isn’t), it’s at least enough to warrant another referendum.
A referendum would be purely for domestic political reasons; nothing in the ECJ ruling requires that we hold another for an Article 50 revocation to be valid. The ECJ has said that “the revocation must be decided following a democratic process in accordance with national constitutional requirements”, which doesn’t have to mean the same process as led to the invocation of Article 50. The fundamental principle of Britain’s unwritten constitution is that Parliament gets to decide what our national constitutional requirements are. If Parliament decides that referendums are for the birds and it wants to stop Brexit once and for all, that’s our democratic process.
If we took our electoral laws seriously, there would be no domestic political reasons for another referendum either. Vote Leave strategically overspent in the final days of a closely fought campaign, when many wavering voters normally make up their minds. There are spending limits for a reason, and the Leave campaigns did everything they could to undermine them. If those laws mean anything, they should mean that you don’t get to claim victory off the back of flouting them. Illegal campaigning gives illegitimate results. A Twitter thread by a researcher looking at Leave overspending shows how it made all the difference.
Most of Vote Leave’s spending was online, using targeted messages tailored to the specific interests and fears of traditional non-voters to turn them into Leave voters (Leave.eu did the same). It had nothing to do with whether those fears were justified or reflected reality: it was purely data-driven, to send the message that would land with each specific voter. This one gets an ad that suggests we should leave because the Spanish still allow bullfighting; that one gets a message that we should leave because Turkey is about to join the EU (any day now, just you see) and enable further migration to Britain. And they knew who would be receptive to which message because of furtive data-gathering on a scale previously unknown in British politics, using Facebook data in ways that few people could have imagined or would have been comfortable with.
Vote Leave sent out one billion targeted ads in the EU referendum campaign, all directed at three million previously hidden potential Leave voters. Leave.eu did much the same, with the help of a foreign billionaire who was using Britain as a test-bed for the Trump campaign. They were able to send whatever messages they liked, free from fact-checking or open debate; most of these ads only became more widely known long after the referendum. They broke the political system as it had been understood for decades in order to get across the line and win their precious Brexit.
That’s the new political reality, and we’ll all have to adjust somehow—the same way England’s political reality had to adjust after William the Conqueror turned up in 1066, and broke the political system as it had been understood for decades. That doesn’t mean that the Anglo-Saxons had to like it, or “accept the result” as the pro-Brexit Twitter drones want us to now.
When post-Brexit Britain is dotted with new castles and anyone who doesn’t speak the language of the victors is ground into the dirt, are we supposed to rest easy knowing that in a few hundred years it’ll all be history and there’ll still be British people on these islands, hurrah?
Obdurate Brexiters, your Raabs and your Redwoods, aren’t the only ones whose resolve has been hardened by the past few years. If we do leave, a lot of Remainers will immediately become Rejoiners. Stand by for forty years of complaint.
Distilled from yet another Mefi Brexit thread.