A Second Brexit Referendum – What Makes You Think They Will Have You Back?

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The call for a second Brexit Referendum is still alive, some say more than ever. It is probably unlikely and, even if it were to take place, there is no certainty that the Remain camp would win. But it is somehow based on the assumption that if such a referendum were held, and the Remainers would win (probably a narrow victory) and that if, as a result, the UK Parliament were to change its mind and elect to remain, that on the basis of this unilateral decision of the UK the status quo ante would be restored and British membership of the Union would continue unabated.

This is very unlikely to be the case.

First there is the legal issue regarding such a unilateral withdrawal of the Article 50 notice.

As is well known, a Preliminary Reference from Scotland will be decided this month in an expedited procedure and before a plenary forum of the ECJ, trying to clarify the legal parameters of a British change of mind whether through a referendum or otherwise.

The Reference definitely has some elements of an Affaire Bidon but I predict the ECJ will not opt for inadmissibility in this case. On the merits it is likely that it will  reject the two ‘bookend’ arguments and instead go for the centre. It is most unlikely that it will hold that once Article 50 notice has been served the process is irreversible and that the only way back, even before the deadline for formal exit arrived, is an Article 49 admission procedure. It is, in my view, equally or even more unlikely that it would hold that the UK could unilaterally withdraw its notice and that, with no more, its Membership would continue unabated. The UK drives everyone crazy for close to three years and then, oops, just as the Clock Strikes One, the Mouse is to run down as if nothing happened?

There are plenty of legal arguments to oppose such and I will mention but one. Article 50 requires a unanimous decision of Council to grant an extension to the exit negotiations. If a Member State which had invoked Article 50 could unilaterally withdraw such, that most severe of procedural stipulations for extension would be emptied of its meaning. As the two year limit approached, it would simply require a withdrawal of the Article 50 notice, whereby full membership would be restored, and then serving new notice thereby resetting the clock. So the most likely outcome of this Preliminary Reference (and the wisest in my view) will be a ruling that to be effective, a withdrawal of an Article 50 notice by an exiting Member State would require approval by the Council (either by majority or unanimity – a case could be made for either option).

If I am right in this prediction, a political decision will decide this question. And the sad truth is that the UK is no longer welcome, crocodile tears notwithstanding.

That this is so should not surprise us. Divorces are rarely rational affairs. There are several reasons for this.

There is, pace various vulgar versions of IR realism, an undeniable emotional element in European attitudes and palpable mental fatigue with the ‘Brits’. The Commission and others went out of their way to accommodate every wish and whim of Cameron in the run up to the referendum, to the point of accepting a compromise on migrant workers that was doubtfully legal.

The unexpected and shocking outcome of the referendum, coupled with the farcical posturing from Whitehall in the ensuing months and years, has led to a terminal exasperation with Albion.

And then, openly admitted by some European politicians and denied by others, there is an undercurrent of making sure that nameless Member States are not tempted to follow the British path – a misguided strategy in my view, but there it is. The Brits have to be taught a lesson that nobody else will ever forget.

But beyond the emotional there is a realization that even if there were a referendum that produced a vote for Remain, Britain would still be deeply divided in its attitude and commitment to the European construct. And internal sentiment vis à vis the Union would be even harsher, given what would be perceived by the Brexiters as a perfidious subversion of promises made. It would be very difficult for any British government in the future to agree to any reform of the Union that would deepen integration. Yet the need for some reform is imperative even if the prospects are dim. Why make them non-existent with a recalcitrant UK back in the Union?

The revenue shortfall of UK withdrawal on the EU Budget is very significant and offers some leverage. But at this point of the game, one has learnt to live with the idea and it seems liveable, so this financial leverage has been whittled down with time. And, at least in some capitals, there is a rush to appropriate some of the rich pickings of the British corpse, even before it is laid to rest.

All in all, as the negotiations lengthened, one got used to the idea of Brexit and even cosy with it.

How will this play out? Of course, no official voice would be so crass as to say bluntly that we no longer want you. Perish the thought! (Though unofficial channels and the social networks will be full of such). Instead, the terms would be struck which would be difficult for any UK Parliament to accept. Sadly then, and no crocodile tear here, it seems as if it is Good-bye Britannia. It is over. Make the best of the withdrawal agreement and stop fantasizing a Remain.

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Aurel Sari says

November 26, 2018

This is a perceptive analysis of the political state of affairs, but the one legal objection that Professor Weiler offers against the revocability of the withdrawal notice is less persuasive. The two-year period is set out in the TEU. It is entirely appropriate that any extension of this period should require a multilateral process in the form of a unanimous decision of the European Council. By contrast, issuing a withdrawal notice is a unilateral act. Whether it can be revoked unilaterally before the two-year period is over does not depend on the procedure to be followed for the extension of that deadline - there is no necessary procedural connection here. The more compelling point against revocability is the danger of abuse: that the UK may revoke the withdrawal notice to gain a political respite before triggering Article 50 again. While Article 50 does not contain any express safeguards to deal with this risk, this is not fatal to the argument in favour of revocability. The Court could rely on general principles to identify certain safeguards, if it wished to do so.

Joseph Lacey says

November 26, 2018

Glad to see I'm not the only one arguing in this direction...


Tom Francis says

November 26, 2018

Interesting point, but it's not clear that any state would be able to gain any advantage from repeatedly triggering A50. It's very costly to do it even once, as the UK experience has shown. That said, if the EU27 have to give permission (for either rescinding or extending A50) perhaps it can be made conditional on the UK making no further A50 notifications in the next 20 years?

Unfortunate, too, that the EU sees this behaviour as the behaviour of the UK, and not as that of a rogue minority governnment at war with itself, which is what of course it is..

Gary Weatherhead says

November 26, 2018

If the ECJ decides the case along the lines outlined above it would potentially lead to forcing the UK to leave against its wishes. So long as any attempted revocation was done in good faith (and not as a negotiating tactic), it wouldn't render the provision for extension redundant. The emotional arguments made here (that the EU no longer wants us) are not matters that the ECJ will be affected by, so will not come into play.

giraud jean guy says

November 26, 2018

In my personal view, the legal arguments against Article 50 unilateral and unconditionnal withdrawal right do not stand and would most probably not be retained by the ECJ (see Piris).

As for the political arguments :

- a British exit from EU will/would have wideranging diplomatic and strategic consequences on the post war 'european order" (see Kissinger) and would considerably weaken both EU and british international role, influence and self-defense capabilities,

- the present internal EU political situation is such that the exit of a major democratic power such as the UK will/would weaken its resistance to populist and nationalist increasing pressures - alas, the EU is presently more concerned with preserving the acquis than moving towards more integration,

- there is indeed a syndrome of "British fatigue" among some member states but these are probably a small minority,

- a British withdrawal from article 50 will/would cause major complications, namely in relation to May 2019 european elections - but procedural matters cannot stand in the way of such a vital decision.

As for internal british matters :

- many argue that, on balance, Brexit will/would - in the mid/long term -create more potential domestic political/constitutional problems (ie Northern Ireland, Scotland) than it will/would solve,

- the economic benefits of Brexit are, at least, very uncertain - wheras the statu quo is, on the whole, rather satisfactory,

- admittedly, a second referendum will/would cause major political uproar, notably through the popular press - and detabilize further the political system and parties. But this "clarification exercice" must be seen in the larger perspective of the nation's future and aspirations of its young generations.

Sorry for my bad english - and salutations to Jo Weiler
Jean-Guy Giraud

William Dowell says

November 26, 2018

Aside from the legal backdrop, it's never struck me in the EU (as a collective entity)'s interest to let a Members 'dip out' to only be able to choose when it can dip back in. It seems a recipe for institutional instability. Imagine that, say, a populist party gets elected on the basis of using the the process as a leverage for getting a better deal, or indeed following some of dispute. It could be used by said member to threaten the entire procedural stability of the Union.

The resources (Time/effort/money) dedicated by the EU (and indeed remaining member states_ for the UK has not been negligible, imagine if you had more one at the same time!

One of the most valuable tools in Art 50 for the EU, is that it's not a decision to take lightly, and a departing member has a clock ticking to exit (as the UK is finding out)

(I would incentally urge the EU27 to be cautious if the UK ends up asking for an extension. If it's just to give the UK more time for it to prepare itself for a 'no deal' Brexit, then that only weakens the leverage for the EU.)

D. P. Plunkett says

November 26, 2018

First of all the question the ECJ is being asked is purely on unilateral revocability. One thing I know about courts is that they avoid answering questions they haven't been asked.

On the broader issue of unwinding Article 50 with the agreement of the EU, I've yet to read a convincing explanation as to where the authority to grant or deny such a favour to an exiting member state would arise.

Mention of Article 49 is not there for decoration and the Withdrawal Agreement is an ideal platform for seamlessly renewed membership. With the legal and political risks in mind, the EU will steer any back-pedalling away from a potential confrontation in the courts or within their ranks and onto a safe 'brexit and re-apply'.

It is their way.

David Heilbron Price says

November 26, 2018

If Prime Minister May fails to obtain approval for the Withdrawal Treaty in Parliament, the EU and UK will be in profound crisis. What to do? How should both the EU and UK avoid interminable divisions and bitterness?
One choice is to withdraw the Article 50 letter. Why?
The first need is to check the founding constitutionalizing and juridical principles of the European system. The first Community was the European Coal and Steel Community 1951 but the founding, signatory declaration of interdependence was what Robert Schuman called its Charter (http://www.schuman.info/EuropeDeclaration.htm).
That designation reflects the importance he reserved for the Magna Carta and British democratic history.
It is a pledge based on the 1950 Convention of Human Rights and Fundamental Freedoms. Any democratic system to integrate Europe required the free choice of the peoples. That contrasted with the Politburo-controlled “People’s democracies”.
As for the voice of the British people, there have already been two referendums, one of 1975 having mandatory effect on government and that of 2016 being only advisory (as confirmed by the UK Supreme Court).
They are not equivalent. The subject is different. The first asks the people if they agree to remaining a member of the European Community. The second does not relate to the Communities (the EEC and Euratom, the ECSC having lapsed without a referendum in 2002). It is about remaining or leaving the “European Union”.
The latter has quite different governance. It was was invented as a separate system added to the EEC by the Maastricht “Treaty on European Union”.
Maastricht, (celebrated by an expo of its 25 years inside the Council building in Brussels) created two, closed-door, pseudo-federal internal and external “pillars” outside the democratic Community structure.
The British were promised referendums for the treaties of Maastricht, Amsterdam, Nice, the Constitutional treaty and Lisbon. All UK governments failed these promises.

The tsunami of a crisis, now approaching, involves fundamental principles of law and democracy.

A referendum to accept the Lisbon Treaty was denied. That violated primary Fundamental Rights. It makes it legally unsafe. Can then a government use an article of a treaty (Lisbon) to withdraw from the “European Union” to which the British people have never assented? The people assented in 1975 to EEC treaty article 240 and Euratom article 208. They are identical and called the permanence or no-exit clause.
The Lisbon Treaty under its earlier name as the Constitutional Treaty was roundly rejected in referendums in France and the Netherlands. A half dozen other Member States including UK were set to do so.
Withdrawing the Article 50 letter would be a necessary act to resolve this long-standing “Democratic Deficit” – which existed long, long before Brexit and was the probable cause of it.

Steve Macey says

November 27, 2018

To me, a revocation of Art.50 could enable a renegotiation of UK terms which would be on terms acceptable to the UK population (as well as being acceptable to the EU in terms of keeping the UK in the EU but outside many political aspects of it).

Broadly speaking, there is a large majority in the UK for a membership of a European-wide trade zone and also a forum for cooperation between European governments.

However, there has never been support (even of a significant minority) for political integration. This is why the Euro has never been under consideration by even pro-EU UK governments. It also explains the rejection of the European Parliament, with many pro-EU Brits preferring that the Parliament was either scrapped or could be appointed by national governments.

Given that the UK is geographically separate from continental Europe, there is no logical need for many of the shared institutions which continental European countries (and populations) are in favour of. This particularly includes the Schengen zone which makes no sense for the UK.

The EU has already previous accepted the UK being absent from the Eurozone, Schengen and many other instances of ever closer union, as well as willingly accepted the UK to be legally exempted from 'ever closer union'. Clearly, there is room for the UK to be exempted from other aspects of EU membership.

Is there really any need for UK membership of the Common Agricultural and Fisheries policies? Is there also need for UK to be a part of the European External Action Service and for the UK's international development efforts to be partially allocated through the EU?

Additionally, it makes far more sense for regional development to be repatriated to the UK (and possibly other countries too if they want). There are also strong arguments for employment law being repatriated.

A renegotiation which repatriated agriculture, fisheries, regional development, foreign and development policy to the UK could be a productive win-win negotiation which both delights remainers and turns Brexiteers away from the leave campaign.

There are two sticking points which need to be addressed. Firstly, the rebate and secondly migration.

Rebate - the UK may have to give up some of its rebate as part of negotiating such repatriation of policies. However, this could I think be effectively sold to the UK public as a price worth paying to repatriate many aspects of the EU which the UK public (even remainers) has never seen as being legitimately an EU-concern.

Migration - It's widely understood to be impossible for any renegotiation over FoM. For a minority of Brexiteers, this is a clear line in the sand. However, there are much more than you think for which this is not a huge issue.

The UK could domestically promise to apply measures already used in other EU countries (i.e. 3 month rule, registers of EU citizens etc), as well as making labour market reforms which makes controversial low-skilled migration less attractive for EU migrants and for UK employers.

Ignacio de la Rasilla del Moral says

November 27, 2018

From Cicero ('Cuiusvis hominis est errare: nullius nisi insipientis, in errore perseverare' (Filipica XII, 5) to Alexander Pope ("To err is human, to forgive divine") to Alexander Pope (An Essay on Criticism of 1711, 325). Enough said.

Stuart Ritchie says

December 19, 2018

I come to Joseph Weiler's article by way of Aris Georgopoulos'. Reading this equally brilliant post, and the insightful replies/comments made pre-Wightman, it is impossible not to feel even more "Brexit-schadenfreude".

As to Tom Francis' comment beginning "Interesting point, but it’s not clear that any state would be able to gain any advantage from repeatedly triggering A50. It’s very costly to do it even once, as the UK experience has shown....", I have to say I would entirely agree from a rational or (dare I say) technocratic perspective.

However I must advocate caution. I myself have adopted Tom's "rational self-interest" analytical approach for most of my career (as former mathematician and software developer, now lawyer). Unfortunately, I now have to concede that such a approach begs the question. Worse, it also amounts to something of a blind spot: in that it routinely is defeated by politics in general, and now populist politics in particular.

I am particularly grateful to David Price for a viewpoint I had not previously considered. This regards the repeated UK failures, to secure "democratic" mandates, now coming back to haunt us all. As a non-European immigrant into the UK, my own hypothesis (setting aside the "democratic deficits" in other Member States) starts with the proposition that, however it is dressed up, the English (later UK) constitutional settlement remains that of a parliamentary sovereignty rather than a democracy.

The UK's increasing internal dissent arguably might arise from the English (as distinct from the UK's) "political classes" actively choosing to dress this up for a century or so, by remorselessly telling the people that they live in a democracy. If that is right, then we might be entering a period of continuing paralysis as exemplified by the Brexit dissent - which might be only the beginning. See for example https://ukconstitutionallaw.org/2018/09/25/colin-murray-brexit-and-the-constitutional-integrity-of-the-united-kingdom/.

After Hubris, Nemesis?