A few more (random-ish) thoughts on the machinations behind all the mess of Brexit.
- First of all let’s be clear where I’m coming from. At this point I do not care about whether the referendum result is right or not. While I would prefer to remain in the EU, the dice have been thrown and we are where we are. My interest now is a (forensic) understanding of what can, should and will happen especially from a legal and constitutional perspective. I am not an expert in this; I rely on those who are, which is why I have been (and will continue to) try to represent the position as objectively as possible based on the reports available to me. I am trying to avoid speculation and wishful thinking.
- Contrary to my previous understanding, legal opinion seems divided as to whether the executive (ie. ministers) can serve notice under TEU Article 50, or whether to do so would require the active advance agreement of parliament via an Act. It all seems to boil down to how you view the use and the reach of prerogative powers by the executive.
Head of Legal argues that the executive have the prerogative powers. Constitutional lawyer Geoffrey Robertson QC and perhaps our top expert public lawyer David Pannick QC [paywall] disagree.
- Pace many politicians and commentators, we appear to be in a very weak bargaining position on the exit deal. It seems to me that the EU hold all the chips, bar one.
The only chip we hold is the timing of the starting gun.
The EU hold all the other chips.
- They can (as they have said they will) decline to enter into informal pre-negotiations.
- They can continue to arm-twist the UK into issuing a notification under Article 50, although as Jack of Kent and others have pointed out they cannot do anything at law to force this to happen.
- The EU are in a position to dictate the terms of the deal. What we want is irrelevant; it is all about what they’re prepared to offer; they can say “this is the deal, like it or lump it” because if we don’t agree then exit happens automatically anyway even without a deal. Moreover they have no reason to be overly benevolent towards the UK – apart from securing their own trade position (which they can do by offering membership of the EEA at great cost to us) they have no need to be benevolent.
- Notice too that the formal exit negotiating period (two years or whatever it turns out to be) allows only for negotiating the exit deal (ie. transition arrangements). It says nothing about what deals might be done on the post-exit arrangements, for example by offering the UK membership of EEA. And the EU have said that the exit deal negotiations are unlikely to include anything on post-exit trade deals which would have to be agreed separately post-exit.
- Once Article 50 has been invoked there appears to be no way to cancel the process; everyone seems to agree that once triggered we must and will cease to be an EU member. Of course we could then apply to rejoin, but what draconian terms might we be offered?
- And once we’re out, all bets are off. We have to negotiate completely new deals on just about everything and again from a relatively weak bargaining position.
- Do we need to trigger Article 50 or can we leave some other way? Essentially, no, Article 50 is the only accessible exit procedure. Again see Head of Legal.
- There seems to be growing opinion that neither Scotland nor Northern Ireland (both of whom voted to remain in the EU) can block the UK from leaving if Westminster is determined to do so. This is nicely summarised over at Legal Business.
- Legal Business also has an interesting discussion about the duty of an MP being to vote with his/her conscience rather than trying to reflect the whimsy of their constituents’ desires. The conclusion is that the constitutional principle upon which our parliamentary democracy is based is that MPs betray their constituents if they vote against their consciences (they are representatives not mandated delegates) — which is in turn based on this wonderful passage from Edmund Burke’s speech to the electors of Bristol in 1774:
It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion …
To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience, these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our constitution.
However, again, not everyone agrees with this stance with many of the opinion that an MP is required to reflect the majority wishes of his/her constituents.
More snippets when there is anything useful. This one could run and run!