Article 50, Brexit, Referendum

How do you ‘just get on with doing it’ when no one can agree what ‘it’ is?

Ths blogpost was written on January 2nd 2019.

brexit-referendum-question

As Winston Churchill might have said, but didn’t as, in that quaint American way of describing death, he has long “passed over”, we begin 2019 with the dreary steeples of Brexit emerging once again.

What Churchill actually said in 1922 was: “The whole map of Europe has been changed… but as the deluge subsides and the waters fall short, we see the dreary steeples of Fermanagh and Tyrone emerging once again.”

He might well have been talking about the Irish backstop.

Weeks away from March 29th, when the UK is scheduled to leave the EU, and no one can yet say with any certainty what will happen. What an incredible position for a country like the UK to be in. In the face of the biggest constitutional, political, and economic change the country is going to make in over forty years it appears to be deadlocked over what it should do.

The former Prime Minister, David Cameron, last seen sitting in a shed at the end of his garden writing his memoirs, called the 2016 referendum to put an end, once and for all, to the Tory party tearing itself apart over Europe.

Instead, he has insured that “Europe” will continue to tear the UK apart for years to come. The demons of Brexit will haunt the country for a long time, no matter how events unfold. Evil genies are out of their bottles and they will not be forced back in again anytime soon.

It has been argued that the reason the UK is in the position it is today is because it triggered the two-year, Article 50 notification period too early. Sir Ivan Rogers put it well in his recent Liverpool speech:

What we needed to do very early on was to recognise the complexity and inevitable longevity of the exit process, work out our viable options, achieve real clarity about where we wanted to land, having worked honestly through the very tough choices we faced – and still do face – and reconcile ourselves to a serious period of transition.

Put bluntly, none of this happened. Instead, before much of the serious work to look at where we wanted to land post exit had happened, we locked ourselves into a date certain for the invocation of Article 50.

To take your time and have a plan makes eminent sense if you are a civil service mandarin charged with delivering Brexit. But, it seems to me, it was never a viable political option for the UK because of the immense pressure the government was under from the victorious Leavers and their media supporters to “get on with it”.

Not that anyone knew what “getting on with it” meant. It is just one of those phrases that politicians use when they want to give the impression that they know what they are doing and are not to be interrupted by lesser beings in doing whatever it is they are doing. Whatever that is. No doubt there is a country and western song called “I’m just getting on with getting on”, and if there isn’t, there should be.

Nor, I suspect, would the EU would have been happy with a “leaver” hanging around for several years while it worked out what it wanted to do and, in the meantime, using every opportunity to create havoc in Brussels to maximise its negotiating leverage.

I am fairly sure a way would have been found to force the UK to “get on with it”. What reaction do you think would be forthcoming if you announced to your partner that you were going to divorce them but planned to stick around and enjoy all the benefits of your current arrangements until you figured out what to do?

Looking back, it is clear that the main problem with the Brexit referendum is that it asked the electorate for a very big “blank cheque”.

The question put was simple: “Should the United Kingdom remain a member of the European Union or leave the European Union?” The answer the electorate gave was Yes, the UK should leave the EU, by 52% to 48%. The 52% represented just 37% of the total electorate, with 16 to 18-year olds being excluded from the vote, along with many UK citizens living overseas.

But what did “… leave the European Union” mean in practice?

How was the UK going to unwind over forty years of deep economic and social integration with the other 27-member states of the EU?

Some of the more extreme Brexiteers say it meant walking away completely, with no agreed exit terms. “Just go now, go walk out the door”, and face the consequences. Towards the other end of the spectrum are those who say it means just leaving “political” Europe while staying in “economic” Europe through continuing membership of the customs union and the single market.

The problem that has haunted the UK since the referendum is that the terms of exit were not on the ballot paper, so allowing different groups and groupuscules to contend that they, and they alone, know what exiting should mean. In a way, it has turned out to be a bit like a family taking a decision to buy a car and then endlessly disagreeing about what car they should buy and whether they can actually afford to buy it.

Now, as an Irish citizen I am more than familiar with referendums. Ireland has a written constitution and amendments to the Constitution are only possible by way of referendum. A proposal to amend the constitution must first be approved by both Houses of the Oireachtas (parliament), then submitted to a referendum, and finally signed into law by the President of Ireland. Since the constitution entered into force on 29 December 1937, there have been 35 referendums to amend the constitution. (See here for a list of all the amendments).

The first referendum I ever voted in was back in May, 1972, and the question on the ballot paper was whether or not Ireland should join the then European Community, also known as the “Common Market”.

The question was put to the electorate after Ireland had negotiated the terms of membership not before.

So, in voting, the Irish electorate knew exactly what is was voting for. The terms of entry were known and debated vigorously during the campaign. No one could allege afterwards that they did not realise what they were voting for.

Like Ireland, the UK joined the European Economic Community on January 1, 1973. However, the decision to join was taken by the UK parliament. It was not put to the people in a referendum as referendums were not then part of the UK political process.

Subsequently, Harold Wilson, then leader of the Labour Party, promised that if Labour was returned to government it would renegotiate the terms of Britain’s membership of the common market and put the results of the negotiations to a referendum. The 1975 EEC referendum was the first ever referendum to be held in the UK.

In voting in 1975 whether or not to remain a member of the EEC the UK electorate had full sight of Wilson’s renegotiated terms. The electorate knew what it was voting for. The deal was on the table. Just over 67% of those voting opted for the UK to stay as an EC member. The turnout was around 65%.

In referendums in Ireland we always know exactly what we are voting for. For example, in 2015, the country voted to legalise same-sex marriage. The question was precise. It was clear beforehand what a yes or no answer would deliver. Referendums in Ireland, and indeed elsewhere, do not leave it to politicians or governments to determine afterwards what the people voted for.

“Mystic Megs” or “Mystic Moggs” divining the “will of the people” have no business in politics.

There are two other points about the use of referendums worth considering.

First, when a decision is made in a referendum in Ireland, and elsewhere, it is generally implemented more or less straightaway. There is little or no time lag between the decision being made and it being implemented.

Part of the problem with Brexit is that time has gone by since the decision was taken in 2016. In the meantime, what leaving the EU involves has become clearer and the costs/benefits better known. Given this new information what may have seemed a good idea at the time might no longer be the case.

A micro example: A man recently rang into a radio station demanding a second referendum. He voted leave in the 2016 referendum but did not realise that the ending of freedom of movement could mean he would not be able to retire to Spain. He wanted to stop EU “immigrants” coming to the UK but not UK “expats” moving to Spain. Could he have a second referendum, please? Mandates, even a mandate delivered by the “will of the people”, wear away over time.

Second, referendums don’t really work when the government subsequently has to negotiate with external partners in order to implement the result of the referendum. The Greeks learnt this when they voted to reject the terms of an EU-led bailout in 2015.

The argument that “our people have democratically voted for this” has little force when the other party can retort that “your democratic vote does not bind us in any way because we have our own democratic processes as well”. Oh, and we are bigger than you. (If you think that’s not the way the world works, read this here)

Referendums really only make sense when the issue to be decided is an issue internal to the country in question and when the result can be implemented in real time without the need for third party acquiesce. (A “done deal” with the EU would meet this criteria. A mandate to negotiate does not).

So, the Irish experience with referendums is that they work when the question put to the electorate is precise, the actions and consequences that will result are known, the timescale is clear and the ability to implement the decision of the electorate rests entirely with the Irish government.

In other words, this is everything that the Brexit vote wasn’t.

The Brexit vote was not so much a blank cheque as a blank canvas on which anyone could paint their own picture in any colours they wanted, if only they could get control of the brushes. And if someone did get control of the brushes and paint their own Brexit tableau then they still has to sell it to the EU, which may not have been minded to buy.

Looking back, would Scotland have found itself in the same position as the whole of the UK does today if it had voted for independence back in 2014? Very probably, as the question on the ballot paper was: “Should Scotland be an independent country? Yes/No”.

Had Scotland voted “yes” then on what terms would Scotland have left the UK? How long would it have taken to negotiate these terms? Would Scotland have been able to remain a member of the EU or would it have had to reapply for membership?

When the “independence agreement” was finally negotiated would there have been demands for a second referendum on the independence terms? What would have happened if those terms were rejected?

This is not just a “I wonder what might have happened” question. The way Brexit has been handled underscores how important processes and procedures are to any negotiation. This truth applies whether it be a labour negotiation, a house buying negotiation or a negotiation involving sovereign states.

You need to be absolutely clear from the get-go what it is you want, what trades you are prepared to make, and how you want the talks to be conducted. If you don’t work this stuff out, the other party will. The person who moves first and writes the texts always holds the advantage.

Think forward a few years.

Let’s assume that in a post-Brexit Britain Scotland and/or Northern Ireland seem to think that their futures lie outside the United Kingdom. Future opinion polls and election results might support such a view. How then do you structure the exit process? What Brexit has taught us is that a “blank cheque” to leave is difficult to cash. On what terms would Scotland leave the UK? On what terms might the two parts of Ireland come together?

There is no equivalent to the EU Treaty’s Article 50 process when it comes to the possible disengagement of Scotland or Northern Ireland from the UK. It seems to me that, on the prudent principle of planning for all eventualities, and learning from the Brexit process mistakes, interested parties should now be trying to work out how to structure any such negotiations and the political processes involved.

Call it an insurance policy. Just because you buy an insurance policy does not mean that you want to fall ill or your house to burn down. Best, however, to be prepared if either happens.

As readers of this Briefing well know I sincerely believe that it is in the best interests of the UK to remain a member of the EU. But, as of today, in the short-term, I cannot see a path to that happening.

The leaderships of both main UK political parties are committed to Brexit. Given this, a second referendum on Brexit at this time seems difficult to deliver. Perhaps, and hopefully, I will be proven wrong.

Despite all the hysterical comments the terms of the UK’s future relationship with the EU are not yet set. These terms will be negotiated during the transition period and that could run until the end of 2022.

So, here is my suggestion for a positive way forward: If a second referendum now is not achievable then take the deal on offer from the EU with one proviso: that the future deal, when known in three or four years’ time, will be put to a referendum and that the referendum will also offer the option of returning to the EU as a fully-fledged member

Don’t tell me this is not doable. Unless you are dead, everything else is negotiable.

6 thoughts on “How do you ‘just get on with doing it’ when no one can agree what ‘it’ is?

  1. I like your idea. The only drawback is that the EU wouldn’t let us back in under our existing opt-outs (Schengen, currency etc).

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  2. Aside from a good Referendum spelling out in details the consequences, it usually is formulated as a law already and can therefore be implemented quickly.
    Don’t the Irish Referendums also require a minimum % of the electorate (Quorum?) to agree, in order to be valid for a serious change for the whole population? Which the Tory govt. deviously skirted around by first calling it advisory and then promising to implement it anyway.
    I’m a bit surprised that you don’t point out that the lack of planning before invoking Art. 50 was deliberate because during the Referendum campaign, promiment Leavers made statements (evidence) that they meant to be vague, to offer all options from close (Norway) to far (Canada) to get all Leavers together – therefore, a plan that satisfied all was never possible.

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  3. Dear Mr Hayes, my best wishes to you and yours for 2019. Thank you so much for your work over the past year on this blog. It has been an island of sanity in a world that seems to have lost its mind.
    As you point out, the current chaos is the very predictable result of the irresponsible way the 2016 referendum was approached not just by Cameron, but also by all those MP’s who voted through the enabling legislation for it without demanding robust safeguards around the implementation of any results.
    The same dereliction of duty was repeated by May invoking article 50 with the help of nearly a House-full of willing (or whipped) MP’s. This happened before even the most cursory of feasibility studies had been conducted, particularly with regard to the clearly contradictory demands of a meaningful Brexit (as later expressed in May’s red lines) and those dictated by the constraints of the GFA.
    Likewise, it should have been obvious to anyone with even a passing interest in the subject, that the way a great deal of UK manufacturing is set up, relies on the smooth passage of goods across its borders, thus necessitating either a complete overhaul of this setup or a continued membership of the Single Market.

    While I can certainly see the sense in your suggestion for a positive way forward from this horrible position the politicians have put the country in over the last two decades (and still only David Lammy honourable and brave enough to attempt any kind of mea culpa from that side), I’m afraid that for the reasons cited above, your solution would only be a bandage over a festering wound.

    What half of the UK population voted for was inherently contradictory. Those inherent contradictions could be solved over time. For instance by the unification of Ireland – although I know far too little about the ins and outs there to be able to say whether that is a likely development. Similarly, manufacturing and services may in time find a way to make themselves less reliant on single market conditions.

    But with politicians still so dishonest and contradictory positions still so entrenched, as the CEO of a company, would you be comfortable living with that kind of uncertainty? Or would you use the relative calm of the transition period to relocate? This is what we are seeing playing out now, as businesses start implementing their contingency plans.

    An honourable response now would be for politicians to say, “We tried to implement what you asked us to do. The resulting deal on offer is the best we could achieve while still having a Brexit that does not just mean losing our say in the EU while leaving everything else largely as it is. We feel that this deal comes at too high a cost in terms of jobs and revenue lost, whilst not really addressing the reasons so many of you voted Leave. In fact, it will make many of those reasons worse. We have therefore decided to revoke the article 50 notification and will work hard to address the underlying problems in housing, healthcare, infrastructure, wages (and unfair undercutting) and education that gave rise to a large part of the Leave vote.”

    Why not try some honesty for a change? David Lammy may have started a trend..

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