The Guardian reports: Germany has ruled out any possibility of informal talks on Britain leaving the EU before it files formal notice of its intention to go, dealing a major blow to the Brexit campaign’s leaders.
As the US secretary of state, John Kerry, flew into Brussels for urgent talks at the start of a crunch week for Europe, chancellor Angela Merkel’s spokesman said only Britain could start the exit process and “if the government needs a reasonable amount of time to do that, we respect that”.
But Steffen Seibert added: “One thing is clear – before Great Britain has sent this notification, there will be no informal preliminary talks about the exit modalities.”
Eager to avoid a domino effect in other Eurosceptic member states, European leaders have said they want the UK to make a swift start on the marathon task of extricating itself from the bloc by triggering article 50 of the Lisbon treaty, the untested procedure governing how a member state leaves, as soon as possible.
But London has so far shown no sign of wanting to launch formal exit proceedings, with the prime minister, David Cameron, who resigned on Friday, leaving the task to his successor, and leading Brexit campaigners including Boris Johnson demanding informal withdrawal talks before locking Britain into the strict two-year timeframe laid down in the article 50 process.
Brussels has also emphatically ruled out informal talks on a possible trade deal before the UK triggers article 50. “No notification, no negotiation,” one official said on Sunday. A diplomat added: “If they treat their referendum as a non-event, we will also treat their referendum as a non-event.” [Continue reading…]
Geoffrey Robertson writes: It’s not over yet. A law that passed last year to set up the EU referendum said nothing about the result being binding or having any legal force. “Sovereignty” – a much misunderstood word in the campaign – resides in Britain with the “Queen in parliament”, that is with MPs alone who can make or break laws and peers who can block them. Before Brexit can be triggered, parliament must repeal the 1972 European Communities Act by which it voted to take us into the European Union – and MPs have every right, and indeed a duty if they think it best for Britain, to vote to stay.
It is being said that the government can trigger Brexit under article 50 of the Lisbon treaty, merely by sending a note to Brussels. This is wrong. Article 50 says: “Any member state may decide to withdraw from the Union in accordance with its own constitutional requirements.” The UK’s most fundamental constitutional requirement is that there must first be the approval of its parliament.
Britain, absurdly, is the only significant country (other than Saudi Arabia) without a written constitution. We have what are termed “constitutional conventions”, along with a lot of history and traditions. Nothing in these precedents allots any place to the results of referendums or requires our sovereign parliament to take a blind bit of notice of them.
It was parliament that voted to enter the European Economic Community in 1972, and only three years later was a referendum held to settle the split in Harold Wilson’s Labour party over the value of membership. Had a narrow majority of the public voted out in 1975, Wilson would still have had to persuade parliament to vote accordingly – and it is far from certain that he would have succeeded.
Our democracy does not allow, much less require, decision-making by referendum. That role belongs to the representatives of the people and not to the people themselves. Democracy has never meant the tyranny of the simple majority, much less the tyranny of the mob (otherwise, we might still have capital punishment). Democracy entails an elected government, subject to certain checks and balances such as the common law and the courts, and an executive ultimately responsible to parliament, whose members are entitled to vote according to conscience and common sense.
Many countries, including Commonwealth nations – vouchsafed their constitutions by the UK – have provisions for change by referendums. But these provisions are carefully circumscribed and do not usually allow change by simple majority.
In Australia, for example, a referendum proposal must pass in each of the six states (this would defeat Brexit, which failed in Scotland and Northern Ireland). In other countries, it must pass by a very clear majority – usually two-thirds. In some US states that permit voting on public legislative proposals, there are similar safeguards. In the UK (except, under a 2011 act in the case of an EU expansion of power), referendum results are merely advisory – in this case, advising MPs that the country is split almost down the middle on the wisdom of EU membership. [Continue reading…]
Labour MP David Lammy writes: The referendum was advisory and non-binding, in contrast to the referendum on electoral reform in 2011 which imposed a legal obligation on the government to legislate. Almost 500 members of parliament declared themselves in favour of remain, and it is within their powers to stop this madness through a vote in parliament.
It is also within parliament’s powers to call a second referendum, now that the dust has begun to settle and the reality of a post-Brexit nation is coming into view. We need a second referendum at the very least, on the basis of a plan that is yet to even be drawn up.
Since the referendum it has also become apparent that if the UK leaves the European Union the break-up of the union will swiftly follow if Scotland gains independence and Northern Ireland is unified with the Republic of Ireland. Are we ready and willing to dismantle our nation? We weren’t asked this, and it was not a factor widely considered by voters on Thursday.
Of course we must recognise what has happened and address the decades of decline in the regions that voted leave which are the root cause of the backlash we have seen. We need to rebalance our economy and our country by devolving power away from Westminster and bolstering investment and opportunities away from London and the south-east.
Nevertheless the consequences of exiting Europe are grave. I have a simple message to all those who believe in remaining in Europe. We have to fight for our economic future, for our children’s future and for the country that we want to be. Speak out, sign the petition and tell your MP to ask for a vote. [Continue reading…]
Under Seumas Milne’s direction, Jeremy Corbyn engaged in ‘deliberate sabotage’ of the Remain campaign, sources say
Jonathan Freedland writes: The BBC’s Laura Kuenssberg and others have seen the documents which prove that Corbyn and his top team were guilty of much worse than a lack of enthusiasm. They engaged in “deliberate sabotage” of the remain campaign. They pulled out of critical media appearances at the last minute, or else passed up media opportunities to make the case against Brexit; they removed pro-EU lines from speeches; they repeatedly diluted the official Labour position of support for in.
My own reporting, speaking to those involved with the in campaign, confirms this account, as does Phil Wilson MP, parliamentary chair of Labour In For Britain. At those moments of the campaign when Labour was to be given the floor, the party had either prepared nothing or used its platform to attack the Tories fronting the remain campaign, rubbishing George Osborne’s warnings of the economic consequences of Brexit for example. There were plans for a dramatic intervention by all Labour’s leaders – past and present – to stand together and call for remain, designed to ram home to Labour supporters where their party stood. But that was scuppered by Corbyn’s refusal to be associated, even indirectly, with Tony Blair. One idea would have seen Blair in Belfast, Gordon Brown in Glasgow, Neil Kinnock in Cardiff and Jeremy Corbyn in England – but Team Corbyn said no to that and every other version of the plan.
Accompanying Labour canvassers in Yorkshire 10 days before the vote, I saw the effect for myself: Labour voters were still unclear whether their party was for remain or leave, and they were certainly not getting the unmistakable message that a vote to leave would be catastrophic for them in particular. [Continue reading…]
“Teebs,” a regular commenter at The Guardian, wrote on Saturday: If Boris Johnson looked downbeat yesterday, that is because he realises that he has lost.
Perhaps many Brexiters do not realise it yet, but they have actually lost, and it is all down to one man: David Cameron.
With one fell swoop yesterday at 9:15 am, Cameron effectively annulled the referendum result, and simultaneously destroyed the political careers of Boris Johnson, Michael Gove and leading Brexiters who cost him so much anguish, not to mention his premiership.
Throughout the campaign, Cameron had repeatedly said that a vote for leave would lead to triggering Article 50 straight away. Whether implicitly or explicitly, the image was clear: he would be giving that notice under Article 50 the morning after a vote to leave. Whether that was scaremongering or not is a bit moot now but, in the midst of the sentimental nautical references of his speech yesterday, he quietly abandoned that position and handed the responsibility over to his successor.
And as the day wore on, the enormity of that step started to sink in: the markets, Sterling, Scotland, the Irish border, the Gibraltar border, the frontier at Calais, the need to continue compliance with all EU regulations for a free market, re-issuing passports, Brits abroad, EU citizens in Britain, the mountain of legistlation to be torn up and rewritten … the list grew and grew.
The referendum result is not binding. It is advisory. Parliament is not bound to commit itself in that same direction.
The Conservative party election that Cameron triggered will now have one question looming over it: will you, if elected as party leader, trigger the notice under Article 50?
Who will want to have the responsibility of all those ramifications and consequences on his/her head and shoulders?
Boris Johnson knew this yesterday, when he emerged subdued from his home and was even more subdued at the press conference. He has been out-maneouvered and check-mated.
If he runs for leadership of the party, and then fails to follow through on triggering Article 50, then he is finished. If he does not run and effectively abandons the field, then he is finished. If he runs, wins and pulls the UK out of the EU, then it will all be over – Scotland will break away, there will be upheaval in Ireland, a recession … broken trade agreements. Then he is also finished. Boris Johnson knows all of this. When he acts like the dumb blond it is just that: an act.
The Brexit leaders now have a result that they cannot use. For them, leadership of the Tory party has become a poison chalice.
When Boris Johnson said there was no need to trigger Article 50 straight away, what he really meant to say was “never”. When Michael Gove went on and on about “informal negotiations” … why? why not the formal ones straight away? … he also meant not triggering the formal departure. They both know what a formal demarche would mean: an irreversible step that neither of them is prepared to take.
All that remains is for someone to have the guts to stand up and say that Brexit is unachievable in reality without an enormous amount of pain and destruction, that cannot be borne. And David Cameron has put the onus of making that statement on the heads of the people who led the Brexit campaign.
— Zoë Brown (@ZBrownie) June 27, 2016
In an age of loud dissent where polemicists, activists, and many others like to proclaim, “enough’s enough,” the irony of much of these strident demands for change is that they are driven by the expectation that in fact, nothing will change.
After 9/11, George Bush insulated himself from protesters by having them/us penned inside “free-speech zones” — the message was: shout as much as you want, but the government will ignore you.
Even though this was perceived as an affront to People Power and an insult to the democratic spirit, at the same time it was a patronizing accommodation that dovetailed with the fact that a great deal of dissent has as its goal nothing more than speaking out. It’s a cathartic exercise in which sending a message matters more than where it’s going, whether it will be delivered, or to what effect.
There’s no doubt that last Thursday, a lot of votes were cast in Britain by people who believed that once they dropped their ballot paper in the ballot box, they’d made their point. Indeed, some made doubly sure by making their point in pen. They didn’t actually believe that every vote counts because they were convinced they were taking a symbolic stand against a rigged system and pushing hard against an unmovable establishment.
Quite forgivably, people whose daily experience tells them they have virtually no power have a hard time shedding that notion as they cast a vote.
Emily Tierney describes what happens when you discover that protest votes count too:
That evening, I headed to a friend’s house to watch the result. We’d all voted Leave as a protest. We stocked up on jam, scones and tea, and ironically decked out the room with Union Jack bunting.
As the first results came in from Sunderland, we all cheered. We were winning, we were right. People had had enough.
Then as more results came in, the reality started to bite. Northern Ireland, Gibraltar, Scotland and London had decided they wanted to remain. This wasn’t funny any more, the Union was at stake, and the economic powerhouse of our country thought it was a terrible idea.
At around 4am, the BBC declared it a win for Leave. Panic set in.
The slightly more sensible Vote Leave campaigners disappeared from the TV screens, awaiting David Cameron’s official speech. For about three hours, we were left with re-runs of Farage making that moronic victory speech about no bullets being fired, despite a Labour MP being tragically killed the week before. I started to feel sick.
The pound went in to freefall. The FTSE dropped. David Cameron resigned, and he’s set to be replaced by a far more right-wing alternative. Donald Trump arrived in the UK to declare this a “great victory”.
What have we done? If I could take my vote back now, I would. I’m ashamed of myself, and I want my country back.
Reuters reports: The $2.08 trillion wiped off global equity markets on Friday after Britain voted to leave the European Union was the biggest daily loss ever, trumping the Lehman Brothers bankruptcy during the 2008 financial crisis and the Black Monday stock market crash of 1987, according to Standard & Poor’s Dow Jones Indices.
Global markets skidded following the unexpected result from the June 23 referendum, in which Britons voted to withdraw from the EU by a 52 percent to 48 percent margin.
Markets in mainland Europe were hit the worst, with Milan .FTMIB and Madrid .IBEX each down more than 12 percent for their biggest losses ever. Britain’s benchmark FTSE 100 .FTSE was down nearly 9 percent at one point on Friday, but rallied to close down 3.15 percent.
The route started in Asia, with the Nikkei .N225 down 7.9 percent, and carried over into Wall Street as the S&P 500 fell 3.6 percent.
Mohit Bajaj, director of ETF trading solutions at WallachBeth Capital LLC in New York, said the severity of the sell-off was partly due to investors misreading the outcome and betting the wrong way. [Continue reading…]
Before Thursday’s vote, George Soros wrote: avid Cameron, along with the Treasury, the Bank of England, the International Monetary Fund and others have been attacked by the leave campaign for exaggerating the economic risks of Brexit. This criticism has been widely accepted by the British media and many financial analysts. As a result, British voters are now grossly underestimating the true costs of leaving.
Too many believe that a vote to leave the EU will have no effect on their personal financial position. This is wishful thinking. It would have at least one very clear and immediate effect that will touch every household: the value of the pound would decline precipitously. It would also have an immediate and dramatic impact on financial markets, investment, prices and jobs.
As opinion polls on the referendum result fluctuate, I want to offer a clear set of facts, based on my six decades of experience in financial markets, to help voters understand the very real consequences of a vote to leave the EU.
The Bank of England, the Institute for Fiscal Studies and the IMF have assessed the long-term economic consequences of Brexit. They suggest an income loss of £3,000 to £5,000 annually per household – once the British economy settles down to its new steady-state five years or so after Brexit. But there are some more immediate financial consequences that have hardly been mentioned in the referendum debate. [Continue reading…]
ClimateWire reports: One of the first questions to be settled is how Brexit will affect Europe’s commitment to last year’s landmark Paris climate agreement. The European Union put forward a combined promise to cut emissions at least 40 percent compared with 1990 levels by 2030, and Brussels planned to spend the summer divvying that responsibility up among its members in preparation for joining the deal. But the impending departure of the European Union’s second-largest emitter throws a monkey wrench in that plan.
Member of Parliament Barry Gardiner, the Labor Party’s shadow energy and climate minister, told ClimateWire that Brexit could jeopardize the global warming accord.
“The implementation of the Paris Agreement on climate may now be seriously undermined,” he said, noting that the United Kingdom played a leading role in pushing for greater E.U. ambition ahead of the deal and also acted as a bridge between Western European powers and Eastern and Central European countries like coal-dependent Poland on climate and other issues.
The United Kingdom is on a pathway to cut its emissions 57 percent by 2030 under a 2008 domestic law—a trajectory that would have gone a long way toward delivering the European Union’s collective commitment.
That raises the question of how the United Kingdom will formulate its own contribution to the Paris Agreement now that it is leaving, and how that exercise will affect the rest of Europe. [Continue reading…]
The Guardian reports: Nicola Sturgeon has suggested that the Scottish parliament could block the passage of legislation necessary for the UK to leave the EU.
In an interview with the Sunday Politics Scotland, she said that “of course” she would consider asking the Scottish parliament to vote down the legislative consent motions required for the legislation.
In her fifth major political interview of the morning, Scotland’s first minister told the show’s host, Gordon Brewer: “If the Scottish parliament is judging this on the basis of what’s right for Scotland, then the option of saying we’re not going to vote for something that’s against Scotland’s interests, that’s got to be on the table. You’re not going to vote for something that is not in Scotland’s interests.” [Continue reading…]
Mark Elliott, Professor of Public Law at the University of Cambridge, writes: The devolved politics of Brexit are immensely complex and may turn out to be crucially important to what actually happens… But as a matter of law, neither Scotland nor any of the UK’s other constituent nations can stop Brexit from happening. [Continue reading…]
While economists have begun to realise the failure of market orthodoxy, politicians remain in its thrall
Tony Karon writes: The policymaking elites of the industrialised West are panicking – and with good reason. The seismic shock of Britons voting to leave the European Union has sharpened awareness of the possibility that in November Donald Trump could ride a wave of xenophobia all the way to the White House. Voters in the advanced capitalist democracies appear more willing than ever to register a potentially catastrophic protest against a post-Cold War global economic order that has deified markets just as the fallen communist ideology deified the state.
A quarter century of market-driven globalisation and neoliberal orthodoxy has systematically deregulated finance, and led to tax cuts and trade deals that favour wealthy elites and leave most of the others to fend for themselves. Its response to economic crises is to adjust interest rates, bailing out capital markets (and the fortunes of the elites) while forcing endless austerity on the most economically vulnerable. The prevailing economic consensus among western governments has steadily increased inequality and diminished hopes, but such are the rules of capitalist democracies that the economically marginalised still get to vote.
“The real story of this election is that after several decades, American democracy is finally responding to the rise of inequality and the economic stagnation experienced by most of the population,” observed Francis Fukuyama recently. Fukuyama is the political scientist best known for declaring in 1989 that the collapse of the Soviet bloc heralded “the end of history”, with free-market capitalism now the undisputed ideological wisdom for the rest of time.
But the neoliberal order he proclaimed as eternal looks increasingly vulnerable, thanks to the very logic of the market economics he championed. “The gap between the fortunes of elites and those of the rest of the public has been growing for two generations, but only now is it coming to dominate national politics,” Fukuyama wrote in Foreign Affairs last month. “Now that the elites have been shocked out of their smug complacency, the time has come for them to devise more workable solutions to the problems they can no longer deny or ignore.” [Continue reading…]
Mike Carter writes: On 2 May this year, I set off to walk from Liverpool to London, a journey of 340 miles that would take me a month. I was walking in the footsteps of the People’s March for Jobs, a column of 300-odd unemployed men and women who, on the same day in 1981, exactly 35 years previously, had set off from the steps of St George’s Hall to walk to Trafalgar Square.
In the two years after Margaret Thatcher had been elected, unemployment had gone from 1 to 3 million, as her policies laid waste to Britain’s manufacturing base. In 1981, we saw Rupert Murdoch buy the Times and Sunday Times. We witnessed inner-city riots, unprecedented in their scale and violence, in Liverpool and London. The formation of the SDP split the left. The Tories lost their first assault on the coal miners, capitulating over the closure of 23 pits.
My father, Pete Carter, was one of those who organised the original walk. My journey was an attempt to work out what had happened to Britain in the intervening years. What I saw and heard gave me an alarming sense of how the immense social changes wrought by Thatcherism are still having a profound effect on communities all over England. It also meant that when I awoke last Friday to the result of the EU referendum, I wasn’t remotely surprised.
Some of those charity shops had closed down. What does it say about a town when even the charity shops are struggling?
I left Liverpool the week of the Hillsborough inquest verdict, flowers and scarves still adorning lampposts. The inquest had finally vindicated the families of the 96 killed at the 1989 FA Cup semi-final, exposing the lies and cover-ups of the police, the media and the political class, who had spent over a quarter of a century traducing not only those fans, mostly working class, but also the city and its people. In fact, that demonising had found expression in 1981, too, when Geoffrey Howe suggested to Thatcher privately that, after the Toxteth riots, Liverpool should be subject to a “managed decline”.
I walked through Widnes and Warrington, past huge out-of-town shopping centres and through the wastelands of industrial decay. In Salford, down streets where all the pubs were boarded up and local shops, if you could find them, had brick walls for windows and prison-like metal doors, I found an Airbnb. My host was selling her terraced house. I sat in her living room as the estate agent brought around potential buyers. They were all buy-to-let investors from the south of England, building property portfolios in the poverty, as if this was one giant fire sale. [Continue reading…]
AFP reports: Pope Francis on Sunday warned of the “Balkanisation” of Europe in the wake of Britain’s shock vote to quit the EU and urged the bloc to chart a new way forward by giving member states greater freedoms.
“We have to come up with a new kind of Union,” the pontiff told reporters on a plane heading back to Rome after a controversial visit to Armenia, as the European Union grappled with the unprecedented task of having to negotiate a divorce from a member state.
“There is something that’s not working in this massive, heavy Union. But let’s not throw the baby out with the bath water,” Francis said.
He warned that places like Scotland and the Spanish region of Catalonia could push for “secession” following the seismic Brexit vote, which he said could lead to “the Balkanisation” of Europe. [Continue reading…]
What does one need to understand about the EU or the implication’s of the UK’s withdrawal if this can be characterized as a hammer blow to the Western establishment. The power of Western elites is crumbling — what’s not to celebrate?
In such a spirit, Glenn Greenwald (who while on billionaire Pierre Omidyar’s payroll is, I assume, comfortably insulated from the crisis rocking Brazil right now) writes:
Revolts against corrupt elite institutions can usher in reform and progress, but they can also create a space for the ugliest tribal impulses: xenophobia, authoritarianism, racism, fascism. One sees all of that, both good and bad, manifesting in the anti-establishment movements throughout the U.S., Europe, and the UK: including Brexit. All of this can be invigorating, or promising, or destabilizing, or dangerous: most likely a combination of all that.
The solution is not to subserviently cling to corrupt elite institutions out of fear of the alternatives. It is, instead, to help bury those institutions and their elite mavens and then fight for superior replacements. [My emphasis]
Corrupt elites always try to persuade people to continue to submit to their dominance in exchange for protection from forces that are even worse. That’s their game. But at some point, they themselves, and their prevailing order, become so destructive, so deceitful, so toxic, that their victims are willing to gamble that the alternatives will not be worse, or at least, they decide to embrace the satisfaction of spitting in the faces of those who have displayed nothing but contempt and condescension for them.
One of the many problems with this perspective that the old order must be destroyed before a “superior replacement” can be created, is that the champions of such destruction tend to be, in significant ways, privileged themselves.
To have sympathy with the legitimacy of popular grievances yet willing to overlook the disastrous consequences of the chosen solutions to those grievances is like having a complacent attitude towards alcoholism or other forms of self-destructive behavior simply because you understand what took someone down that path.
It’s a strange kind of sympathy that feels one source of pain while discounting another.
At the same time, it’s ironic that the cheerleaders of the destruction of the Western establishment — proponents of their own vision of regime change — have mostly had such short-lived sympathy for popular uprisings in the Middle East.
At this point, there’s surely good reason to jettison all the slogans about revolutionary change and start thinking more seriously about the mechanics of change. It’s always easier to talk about where you want to go, than figure out exactly how to get there. Who wants to get mired in boring details when they can instead indulge in fantasies about burying institutions?
If an overwhelming majority of British voters had opted for Brexit then it would be impossible to argue against the will of the people. But the vote was divided almost exactly in half — evidence I would suggest that support for the EU runs much deeper than might be expected if this is nothing more than an instrument serving the interests of the corrupt Western elite. Indeed, the narrative that casts this as primarily a struggle between elites and the disadvantaged, glosses over the fact that support for Brexit came from older people, while younger Britons have grown up with fewer reasons to regard Europe and the EU as other.
This is a generational betrayal and an ominous turning point in history.
If there’s one class of people who have reason to be pleased about Brexit, it is the lawyers who will henceforth be employed helping untangle a decade’s worth of legal disputes.
Those who imagine that since the UK has now made its choice, withdrawal from the EU can be expedited and happen as swiftly as the remaining EU members hope, here’s piece of history that puts this issue in perspective.
In 1982, Greenland held a referendum which resulted in its choice to leave the EEC (precursor of the EU which then had ten members). Negotiations for its withdrawal took over two years to complete. Greenland looks big on a world map but it has a population of just 55,000.
So, two years of negotiations between on one side a European Community a third of its current size and on the other a state which is basically a fishing town on the edge of an ice-sheet. And keep in mind that Greenland (as part of Denmark) had been part of the community for less than a decade and had not played a central role in shaping Europe’s institutions.
As much as the EU can be cast as some external, overbearing bureaucratic entity, it is an entity in which the UK has spent the last four decades as one of its leading members. Many of the laws from which Brexiters imagine they are soon to be unshackled are laws that Britain helped draft, wanted in place, and served British interests.
This will be like so many other divorces where so many things once shared, now have to be replaced. The absurdity of the fantasy about liberation from red tape is that the UK has now brought on its own head the worst imaginable bureaucratic nightmare.
Finally, on a personal note, even though I have lived in the United States for almost thirty years and am a U.S. citizen, I am also a British citizen, the country of my birth where I grew up. I’m surprised my how often I hear Americans refer to “British subjects” as though we remain under the control of a monarch, but I assure you “citizen” is the term in our passports.
Until I moved to America, I never referred to myself as “British” — a phrase loaded with so much ugly historical baggage; an identity which among members of my generation conjures up images of Alf Garnett and small-minded rightwing bigots who cling to memories of empire and who like to wave the Union Jack.
I liked instead the idea of being European, not as distinct from non-European but as distinct from an identity defined and limited by an island’s shoreline.
For the same reason, I like Barry Cunliffe’s topographical description of Europe as “the westerly excrescence of the continent of Asia.”
The basic point is that I think it’s good for all people to feel that they are part of something larger — that we don’t confine ourselves by boundaries but have an interest in what lies beyond them.
This is what makes Brexit so depressing, because aside from the economic repercussions, it represents a psychological process of withdrawal in which everyone will be diminished.
Among British voters who supported Brexit, there were probably quite a number who upon seeing the news on Friday morning concluded: That’s it! Britain is out of the EU.
To understand why the withdrawal process will in fact be “a complex and daunting task,” it’s necessary to dig into some of the legal details of the process.
On March 8, The Select Committee on the European Union in the House of Lords, sought evidence from two experts in the field of EU law: Sir David Edward KCMG, QC, PC, FRSE, a former Judge of the Court of Justice of the European Union and Professor Emeritus at the School of Law, University of Edinburgh; and Professor Derrick Wyatt QC, Emeritus Professor of Law, Oxford University, and also of Brick Court Chambers.
What follows are some excerpts from their public testimony. Questions came from members of the Committee.
Professor Derrick Wyatt: … with respect to the fate of EU legislation, we tend to look at it as legislation that is imposed upon us. That is not accurate. Part of the way that British Governments have successively exercised their policies has been through the machinery of the European Union. If we look at legislation on equality in the workplace or on the environment, or we look at our company law, these are not all alien mechanisms to our detriment that have been forced upon us. Many of them are pieces of legislation that are regarded as currently important and still receive strong support. It would take years for Government and Parliament properly to review the corpus of European law, jettison what was not wanted and keep what would be wanted — in my view, the majority.
Professor Derrick Wyatt: Greenland shows that even mildly complicated issues can take quite a long time. The population of Greenland is 55,000. Its issues are mainly around fishing, and transitional rules took two years to negotiate. [A referendum in 1982 led Greenland to withdraw from the EEC, a process completed in 1985.]
Professor Derrick Wyatt: The Open Europe think tank recently published some comparative information on how long it takes to negotiate various types of agreement. Agreements negotiated by the EU were taking between four and seven years. If one looks at agreements negotiated by countries between themselves outside the EU, they seem to take between four and nine years. All that shows one is that these things can take a long time.
Baroness Scott of Needham Market: I am not clear on the position of the UK with regard to the day-to-day business of the EU going forward. While all this negotiation is going on, it will be getting on with other things. What is the status of the UK during that period, which could be up to a decade?
Sir David Edward: The UK remains a member state. Strictly speaking, we become chairman of the Council. We have the presidency of the Council in 2017. Strictly speaking, it just continues.
Professor Derrick Wyatt: Under the trio system, every presidency acts in conjunction with the next two in line. A few days after the Brexit referendum the UK would join the trio, with Slovakia and Malta. What does the trio do? Forward planning and continuity. We would be in that trio, we would be in the next trio and then we would have the presidency. Forward planning and continuity would be weaknesses for the UK. On the other hand, there would be some issues we would want to stay in on: for example, common foreign and security policy and sanctions against rogue states. The UK has an enormous influence, and our interests are served by that. We would not want to disengage politically from decisions such as that. Suppose there were a meeting on duties on imports of dumped Chinese steel. The UK would want to be involved with that.
Lord Whitty: But is it up to the UK?
Professor Derrick Wyatt: Yes, it would be up to the UK, but the UK would have to work hard to maintain political credibility. The other side of that would be some selective disengagement, because where it was not working the UK would have to say, “We can understand why this bit won’t work and we are not trying to undermine this organisation”.
Lord Borwick: What are the legal implications if, as you say, the withdrawal negotiations take more than two years, as we all expect they would, and no extension is given? It has to be given unanimously [by all 27 member states], as I understand it. I am not sure what the incentive is for all the other states to agree to that extension?
Professor Derrick Wyatt: It is £8 billion a year in net contributions, and access to the UK market for workers and for motor cars. All the member states in the EU believe they benefit from the internal market. They will continue to believe that and there will be a minor budgetary crisis the day that the UK financial net contribution ceases. I am not saying that people always act according to their best interests if their blood is up. This would be one of the huge risks. If, for example, the UK were to jump the gun and insist on imposing unilateral restrictions on immigration while negotiations were going on, the climate would disintegrate. We would not be able to carry on in the spirit of considered mutual self-interest.
Lord Borwick: I entirely agree with you, but as far as a lot of voters are concerned, after a decision on Brexit has been made, they will believe that is the point at which Brexit takes place. They will not understand the details of Article 50 or the two years, let alone the other implications that you have brought forward. Will they not demand some instant withdrawal politically?
Professor Derrick Wyatt: I do not think it is feasible for politicians now to have a plan B, but it is essential that our Civil Service has a procedural plan B. I put my cards on the table. I shall vote to remain. I am not wishing for this to happen. If it does happen, we shall all be in the same boat and there will be huge national self-interest in moving forward in a very considered way without jumping the gun in directions that could torpedo the negotiations before they start. There will be a major learning curve for some politicians, obviously — present company excepted — and the electorate as to what needs to be done to achieve British self-interest. This is not a question of concessions to others; it is how we achieve what we would want to achieve. I agree that the man or woman in the street might expect, on the day we vote out, that with one bound we are free.
Lord Borwick: Yes, together with the newspapers, the television and others. The first time that a directive comes through with which we disagree and on which we have had no comment but which we will be bound with, there will be a really big row, one presumes.
Professor Derrick Wyatt: That is where the trick will be such a hard one — forging political consensus across the parties to move forward in a way that serves our best interests.
Lord Borwick: As you said, there has to be political consensus across the parties, including presumably the SNP [Scottish National Party], which has a different interest in this matter.
Professor Derrick Wyatt: Yes, but there will be the same interest in what the SNP might say is the short to medium term, because it has aspirations to leave the UK in the longer term.
Sir David Edward: I go back to about a month ago when I was giving a lecture in Germany organised jointly by a university and the German-British Friendship Society of that particular province or Land. The chairman of the German-British Friendship Society said, “Make no mistake about it: if there is a vote to leave, it will be a very, very nasty divorce”.
The Chairman [Lord Boswell]: There is a follow-up point — forgive us — which is the question of acquired rights under EU law. In a sense, trade might be simple because there is a machinery. I am not aware of any machinery for safeguarding acquired rights. Do either of you have a comment on that?
Sir David Edward: Could I give you some examples of what would need to be negotiated? A businessman in two different member states has a contract for the supply of components at a fixed price over a period of years that extends beyond the two-year period. What happens if there is an immediate exit? Is customs duty then payable and does that disrupt the contract? What are the consequences? A university has an EU research funding package with provision for cross-frontier movement of research scientists, and that has a life beyond two years. What happens to that? What happens to Erasmus students? When does participation in Erasmus end? A divorced couple live in the UK and another member state with special arrangements for access to children, and particularly cross-border payment of family maintenance. What happens to that? There are cross-border investments and tax treatment of capital and revenue. There are agricultural support payments and fishing quotas. Those are just examples.
Lord Mawson: Has anyone considered practically, given the process you are describing, how many zeros there will be on the legal bill for all of this?
Sir David Edward: I echo the feeling of one of my contemporaries, an EU lawyer, who said, “I thank God for my mortality”. The long-term ghastliness of the legal complications is almost unimaginable. Certainly, there will be people who will make a great deal of money out of it.
Lord Davies of Stamford: Do you think that the Government’s assessment of the risks, uncertainties and potential costs of withdrawal are overstated, understated or reasonably stated?
Sir David Edward: I think potentially they are understated. You should be apprehensive.
Professor Derrick Wyatt: I prefer not to comment on the Government’s proposals. In the Government’s White Paper, they say a number of things, but I would rather confine myself to specific issues. On the specific issues, it seems to me that there is a considerable level of uncertainty and the immediate effect of Brexit would be that the pound would go down, the Stock Exchange would go down and the cost of public sector borrowing would go up, which is why the Bank of England at the moment is making contingency plans to bail out the banks. I find those things worrying.
Lord Davies of Stamford: You do not think that the Government have overstated the hazards of withdrawal.
Professor Derrick Wyatt: I do not want to take a position on what the Government say. I would rather indicate precisely what my concerns are and give a reason as to why I am concerned. Those are my concerns, but if there is Brexit we are all in the same boat and we would have to make the very best of it that we could. That would mean coming together in a strong cross-party consensus to show the EU that we could negotiate a long-term agreement that would stick, and that we would not be running backwards and forwards trying to renegotiate things. We would have to do that or business would lose confidence in the future. If that is scaremongering, I am guilty of scaremongering. I think that is a sober assessment, but it is mine and not the Government’s.
Baroness Suttie: What legislative measures would be necessary to extinguish the application of EU law in the devolved nations [Scotland, Northern Ireland, and Wales]? I have a specific question to Sir David, if I may. Do you think that the Scottish Parliament would be likely to grant legislative consent? If they did not, what would be the consequences?
Sir David Edward: The formal consequence is this. Under Section 29 of the Scotland Act 1998 the Scottish Parliament is bound by EU law, and, ditto, under Section 57(2) the Scottish Government are bound by EU law. Under the Scotland Bill that is going through Parliament at the moment, the Sewel convention will be recognised in Section 2 if it becomes an Act. Therefore, as I see it, you would have to amend the Scotland Act and, therefore, you would have to have legislative consent from the Scottish Parliament. I can envisage certain political advantages being drawn from not acceding to the legislative consent — creating difficulties about it.