Theresa May says today in her statement announcing a leadership bid that there should be no triggering of the article 50 process until a negotiating strategy has been resolved. That must me right, but she also asserts there will be no general election before 2020. Is it really constitutional, democratic or right that the mechanism for determining the future relationship of our country with the EU and the world at large will be a Conservative party leadership election that does not even feature Boris Johnson, the man who was widely assumed to take over the leadership and the negotiation? Or should we demand a wider democratic input into the terms on which we re-align with Europe?
Of course Theresa May is right that the Article 50 process must not be hastily commenced. We need to decide what we want from the Brexit negotiation before we start negotiations. The Article 50 process is stacked against the UK. The whip hand of the EU member states is that once it is activated, the UK ceases automatically, after two years, to have any of the obligations, but also any of the benefits of EU membership. The only means of avoiding that outcome are either to agree a withdrawal deal with a heavily qualified majority of the European Council (for the purposes of a vote, this means the Heads of State of the member nations) or else obtain unanimous agreement to an extension of time for negotiations. Any small bloc can impede a deal and more threateningly, any single member country can veto an extension of time for negotiations once the withdrawal process is initiated. Article 50 even dictates that the country triggering article 50 is not entitled to participate in the talks concerning its exit. Because a withdrawal agreement would cut across all sorts of lines of competence, it is likely that every individual member state will have to ratify it. In short, Article 50 ensures that the country which has triggered its exit is in no position to make any demand that might meet with resistance. Theresa May is right to be cautious about entering into such a doomed negotiating position without an idea of the strategy for negotiation.
Several EU figures have said there will be no pre-article 50 discussions outside the procedure stipulated by article 50. That is no doubt the case. However, that does not mean from the UK’s perspective that a rapid start to the process is required. The people of the UK are entitled to take time to clarify the shape of the post-exit Britain that we want to achieve (though there is clearly a need to minimise periods of uncertainty).
What did the Leave vote mean? Answering this question is like staring into a Rorschach drawing. The only sure thing it meant is that a majority is in favour of leaving the EU. The Leave vote cannot be read as giving any authority to any particular view as to what an exited Britain should look like. There is no agreement among leading Brexiters, or even a plan, as to what we build in place of EU membership. And nor do those in the Conservative Party who advocated Brexit hold a monopoly over the parameters of a renegotiated relationship.
Almost any reason, any shade of moderate and radical, any shade of sophistication and ignorance can be found amongst those who voted Leave. On both the left and the right some voted to stick two fingers up at the elites, the experts; the establishment. On the ‘leftish’ side, people voted against austerity and neo-liberalism. Some voted to re-allocate money from Europe to the NHS. Others voted to reject plutocracy and the influence of anti-democratic institutions. Others voted against the privatisation process implicit in EU state aid and procurement restrictions. Some sought to reject the free movement of goods, services and capital and the EU stance on TTIP, while seeking protectionism and state subsidies (this may sound esoteric, but the EU stance on steel dumping was very significant in Wales for example). Others on the left voted out of a distrust of the cruelty and fanatical dogma displayed towards Greece.
On the right, some voted to express hatred of foreigners, or against free movement of Europeans. Yet at the same time many on the right are not xenophobic and on both right and left some voted against ‘fortress Europe’ and its own insularity against the wider world. Boris Johnson says in his recent Telegraph article that he voted to repatriate the legislative (sic) powers of the European Court of Justice (this is nonsense: the ECJ interprets, but does not make legislation). Better informed voters want the UK courts to have supremacy over interpretation of the law and for the UK Parliament to recapture power over the making of laws. Some don’t like “red tape”. Some voted to facilitate the dismantling of employment rights protections. Some no doubt voted to leave the European Convention on Human Rights (although that was not on offer). Some hope to diminish the environmental protections conferred by European law, while others voted to end environmental destruction caused by EU agricultural policies and the iniquity of farm subsidies.
Resolving out of this mass of reasons what should be the shape of our exit from the EU is not as obvious as those with an agenda will try to claim. A Conservative version of Why We Left will soon come to dominate in the media and a simplistic narrative will come to be woven out of it to political ends. The right’s version of exit will seek to appropriate the vote as an endorsement of its ideological agenda: the restriction of free movement, while continuing the endless yard-sale of our collective wealth to the full rapaciousness of international capitalism. The right may seek to exit the European Convention on Human Rights; diminish workers’ protections; invest billions shoring up financial institutions and banks. In short, they will continue the political work of the Westminster elite. But there is now a real chance to change all this. The vote to leave clearly meant a myriad of different and contradictory things to different voters, but one powerful current was to end, rather than fulfil the neo-liberal dreams of the right of the Conservative party.
The least democratic way forward would be for a new prime minister to seek to exercise the power to trigger article 50 as an exercise of prerogative power. It would surely be unconstitutional to embark on such a momentous course without (at least) parliamentary approval. There is sound legal debate about whether the prime minister could act in a way that takes away so many rights (including a right to vote in European elections) from British citizens without statutory authority to activate the article 50 process, based on some understanding of where those negotiations will go.
But is Parliamentary approval enough in the current circumstances? We have no fixed constitutional rules and our processes must therefore evolve as new circumstances arise. In this case, an almost unique flirtation with direct democracy has resulted in a seismic decision which cuts across the general election platforms of every elected party apart from the single UKIP MP. Nobody has voted for this government or this Parliament to direct negotiations with the EU in any given way. The only means of safeguarding any democratic input into the reshaping of our country is for a general election to precede the triggering of article 50. That is not to advocate rejecting or ignoring the Leave vote, but to recognise that the vote to leave tells us only that we are not to be part of the EU: it tells us nothing about what our relationship should now entail. There is no mandate for fringe figures of the Conservative party- some of whom, such as May herself- backed Remain to now assume leadership of the country and assert their own version of the consequences of Brexit. That would be no more democratic or constitutional than ignoring the Brexit vote altogether.
Section 2 of the Fixed Term Parliaments Act 2011 Fixed Term Parliaments Act 2011 requires two thirds of Parliamentarians to approve a new election, though it seems that could be amended by majority. The focus of progressive agitation must now be to secure democracy through a general election or else risk the very autocracy that so many thought they were rejecting with the vote to Leave.