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

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.