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There are many ways we can strike a deal to leave the EU. We might model our future relations on the Comprehensive Economic and Trade Agreement of Canada; we might aim for the a la carte approach of the Swiss; we might have to fall back on no agreement- just rely WTO rules as David Davis threatens. In this post I discuss three further possible scenarios: the “David Davis model” as set out in the past ten days; a model along the lines of “the Norway model” and an alternative I call “the Sovereignty Model”. My concluding point in adverting to six radically different forms of relationship is that there has been no referendum, manifesto pledge or election platform setting out any of these options. It is up to the British people to insist on their democratic right to decide.
The David Davis Model for Brexit
David Davis, the Secretary of State for Exiting the European Union has now set out the bones of how he thinks it should be done. His model seeks the abandonment of free movement of workers; the abandonment of the social and environmental advances of the EU, but the retention and extension of free trade. He is loudly boasting of starting bilateral negotiations with other countries (in breach of existing law). His vision is full of hope for a bespoke deal that breaks the link between free movement of goods services and capital, and free movement of workers: a deal which has never been struck before; which has been resisted for the past two years in response to the Swiss referendum seeking to restrict free movement; and which is not even supported by the Foreign Secretary. His model is very different to that envisaged by the leading Conservative Party campaigners for Brexit such as Michael Gove MP, the new Foreign Secretary Boris Johnson, or Daniel Hannan MEP (who wrote a leading book campaigning for Brexit). It is far more radical a vision than could possibly be considered mandated by a vote to do no more than “leave the EU”.
The referendum was not intended to gift the opportunity of a radical re-writing of our constitution to David Davis. We who do not want a pale imitation- nay an embarassing parody of Britain’s nineteenth-century role in the world- must come together to lay down our demands for the future of this country. The Opportunity in Crisis meetings around the country are an attempt to get people thinking about the shape of the deal and campaigning for a better deal than that on offer from David Davis. https://www.facebook.com/OpportunityInCrisis/?notif_t=page_invite_accepted¬if_id=1468842832712033
The Norway-type Model: Freedom of Movement Retained
As to the Norway model (which is also that enjoyed by Iceland and Lichtenstein), this has been supported in form by Boris Johnson, Daniel Hannan MEP (and prominent Brexiteer), Michael Gove and Nadine Dorries. It is a model which is also supported by the Adam Smith Institute, which notes that we voted to leave the EU, but not to leave the single market and says that its poll of 1,700 people found 54% supported the Norway model.
The key features of the Norway model are that it secures continued integration with the single market, including freedom of movement through the European Economic Area Agreement of 1994. By this agreement, the contracting parties essentially agreed to the EU laws as they stood in 1992 including the four freedoms of movement- workers, capital, goods and services, as well as state aid, competition, consumer protection and parts of environmental law. It does not cover common agricultural policy, fisheries, customs union, common foreign and security policy, justice and home affairs, taxation, or economic and monetary union. There is a necessarily complex, but sophisticated infrastructure and set of rules which govern how the EEA countries which are not within the EU incorporate and keep pace with relevant EU legislation (so as to retain harmony with EU countries in relevant areas), while retaining their sovereignty over areas which are not covered by EEA legislation. There are well-developed arrangements for courts to determine disputes over violations of these arrangements
Three weeks ago just after the referendum, the now Foreign Secretary summed up what he foresaw in terms of Britain’s relationship with the EU along the lines of the Norway model:
EU citizens living in this country will have their rights fully protected, and the same goes for British citizens living in the EU.
British people will still be able to go and work in the EU; to live; to travel; to study; to buy homes and to settle down. As the German equivalent of the CBI – the BDI – has very sensibly reminded us, there will continue to be free trade, and access to the single market
Boris Johnson just three weeks ago envisaged a continued right of British citizens to continue to work, live, travel, study and buy homes abroad (with associated rights to settle down). He accepts a reciprocal right of EU citizens to remain here (unlike Theresa May, who refuses to rule out deportation of EU nationals). But the continuance of those rights depends on the continuance of free movement.
Benefits of this model include firstly that it is something which other heads of state in Europe (most of whom will have to agree to any article 50 deal) would probably accept. Everyone can imagine how it would work and the complex web of existing legislation and the detailed and structured framework already in existence can be utilised. To try to build equivalent structures and processes from scratch so as to enable the UK to operate bespoke arrangements with the EU would be nigh impossible. Even the formation of a new set of international courts capable of adjudicating on the numerous cases likely to arise about breach of the new treaties (whatever they may be) will be a daunting task. Slotting into existing frameworks for international cooperation therefore has considerable advantages.
Could it achieve compromise within Britain? A Norway-type model might to an extent satiate the “Leavers” for whom the reclaiming of sovereignty was the central demand in that it would ‘free’ Britain from the Common Agricultural and Fisheries policies, enable it to set its own VAT rates and have greater control over other regulations and environmental law. The influence of EU law and the EU justice institutions over the UK would also be diminished. This form of membership should allow for the bi-lateral trade agreements with other countries (Australia etc.) which are being trumpeted at the moment. It is a form of deal which might be enough to keep Scotland within the UK, since it ensures British people are not deprived of their rights to move for work across the EU (albeit other rights will be lost). It might be enough to placate the powerfully supported “remain” movement seeking to undo the referendum result one way or another.
It would have some miserable consequences for progressives and “remainers”, since it would diminish British political influence over the EU, and end our link to some of the progressive components of EU membership. For “leavers”, it would also be short of the controls on EU immigration and freedom from contributions to the EU (the £350m a week would not materialise). Furthermore, what we might gain in sovereignty would have to be set off against significantly diminished British influence over the shaping of the EU and its laws (the EU as it stands is seen very much as a British EU). So although it might not achieve as much sovereignty as some more extreme “Leavers” might hold out for, it keeps open the chance of a second phased withdrawal in, say, a decade, while smoothing the economic shocks and bureaucratic complexity of leaving for the meantime. For remainers, it keeps open the possibility of re-entry, since the model was originally designed as a “waiting room” to allow for integration prior to entry (eg. for Sweden).
On the other hand, leavers and remainers alike might, when confronted with the realities of a Norway-type arrangement, continue of the view that there is no point in compromise: they might think that the Norway model is worse than membership of the EU; and nor is it indepenedent and sovereign enough. What this illustrates, is quite how remarkable is the current government plan not to present the British people with any say in what form of Brexit we adopt.
The Sovereignty Model
Writing three days after the referendum, Boris Johnson said this:
It is said that those who voted Leave were mainly driven by anxieties about immigration. I do not believe that is so. After meeting thousands of people in the course of the campaign, I can tell you that the number one issue was control – a sense that British democracy was being undermined by the EU system, and that we should restore to the people that vital power: to kick out their rulers at elections, and to choose new ones.
The Foreign Secretary makes an important and powerful point that chimes with the tenor of the leave campaign over many years (not just the final week of the campaign). The primary issue and justification for leaving is not immigration, it is sovereignty. It is vital that the deal struck now is one which lives out the full meaning of that creed. That means it is for the British people, and its parliament to decide whether we wish to abrogate our right to freedom of movement. It is not for Mr Davis, or more honestly, his faceless bureaucrats and civil servants, to sit in some back-room in Brussels doing deals that deprive British Citizens of rights as important as that to work and live within any country in the European Union. It is not for faceless hired bureaucrats and negotiators to surrender, for example, the integrated system of environmental controls with which we have cooperated and almost unanimously agreed for the past forty years. If these rights and systems are to be abandoned, then the Brexit deal is not the mechanism. The deal must safeguard continued operation of the extant system of controls unless and until our Parliament authorises any different form of legal order.
The Sovereignty Model of Brexit therefore envisages a deal which following exit from the EU changes little. We do not throw out any more of the bathwater than is mandated by the simple instruction of the people to leave the EU. Of course we have to surrender membership of the EU, and with it any place in its governance or in the election of its Parliament. But apart from that we maintain – for the meantime- the Supremacy of the European Court of Justice and of European Law as it will continue to apply, as well as the principles of Direct and Indirect Effect. We empower parliament to abolish these principles, but that willonly occur as and when Parliament is given the opportunity to work out how we transition to a world in which (inevitably) European law must continue in some form, while allowing for the UK to diverge on the terms and interpretation of that law. It may be that the functions of the European Court could in time be transferred to the EFTA court if that sort of change of form is considered necessary to satisfy “sovereignty”, but there is no getting round the need for an international judicial apparatus. This will be a slow process, but any other course will not be faster, it will simply be more rife with ineptitude, complexity and legal deadlock.
I have illustrated above two perfectly feasible models for exiting the EU, as well as that sketched out by the Brexit Minister. The underlying point is that none of the vast array of possibilities have been worked out by anybody- least of all the Brexit Minister. It is irresponsible and wreck-happy to be proposing to commence article 50 discussions on a platform as thin and bereft of credibility or accountability as that of Mr Davis. Our country is facing a serious threat from ideologues who are desperately hastening towards trying to secure a Brexit fait accompli. There is not even time for academic or polemic books to be written on what kind of exit is envisaged before negotiations start. There is barely time to recruit a Department of State responsible for the negotiations. Our first priority (by which I mean those of us who care about reality) has to be to campaign to slow all this down, for the public, parliament, think-tanks, the press, the legal establishment, the civil service to be given a chance to work out a sensible way of achieiving Brexit and for all of this to then be debated and decided on in a democratic fashion.
My concern in all these posts, in all the meetings I am convening (the next event this Friday) is that we rapidly develop a realistic and progressive negotiation position for Brexit. The Minister for Brexit, David Davis, seems be living in a Panglossian fantasy.
Shortly before being appointed Minister for Brexit, David Davis set out his aspirations for the shape of the Brexit deal. He says that Brexit will allow us to “pursue an unfettered high growth strategy”. We will “shift our economy towards a more export-led growth strategy, based on higher productivity employment”. His vision is one of a “dynamic economy, trading throughout the world”. In interview today he said “we’ll get a very, very large trade area, much bigger than the European Union, probably ten times the size of the EU”. Leaving aside the need to expand to other planets in order to form a trade area ten times the size of the EU, there seems to be no recognition at all of the scale of the systems and infrastructure which will be necessary to facilitate and operate these agreements. His optimism is, he says, based on “amicable statements” from China, India, Australia and America and he expects trade deals with our most significant trade partners to be negotiated and completed within 12 to 24 months. This “amicable statement” from America seems to him to overwrite the publicly stated position of President Obama both before the referendum and after that Britain would go to “the back of the queue” in seeking a trade deal.
Mr Davis’ optimism seems to run against all the evidence as to the complexity and timescales necessary for effective trade deals. To take one example, how will disputes arising under these new trade deals be adjudicated? Will there be a new Commonwealth Court of Justice to arbitrate disputes over the agreements? Will we seek to build a wider trading bloc a bit like the early form of the EEC or will there be dozens of bilateral trade deals reliant on WTO rules? Davis doesn’t say, but that is not out of a desire to keep out of the detail, because on some points, he has thought through to the details: he promises “an 0800 number that a small specialist manufacturer in the North of England, say, could call for practical help in Shanghai and Sao Paolo, Cape Town and Calcutta”. This is the revival of the Cones Hotline school of infrastructure management.
His bluster around negotiations with the EU for Brexit is also alarming. He says “The ideal outcome, (and in my view the most likely, after a lot of wrangling) is continued tariff-free access. Once the European nations realise that we are not going to budge on control of our borders, they will want to talk, in their own interest.” He seems to think that we will be able to devise a system for free trade without free movement in just 24 months and that the EU Heads of State will just agree to his proposals. There is no acknowledgement that reaching agreement on an exit deal will require the support of a large majority of the member states. He simply asserts they will fall into line. He seems to think that the threat in the alternative of a relationship based on WTO rules allowing the UK to impose 10% tariffs on foreign cars will be enough to make all the EU leaders see the sense of his ideas.
Terms like “continued tariff free access” might appear to suggest a clear plan, but in practice leaving the EU will be untying a Gordian knot. We can’t just start from scratch asserting that all the vast network of European law will cease to apply on 1 January 2019. Even if we suppose Davis has (contrary to what he contends), some idea of a transitional preservation of the status quo in mind, he does not begin to address the questions this raises. Who will adjudicate disputes- will the European Court of Justice or the EFTA Court used by Norway et al? Presumably not if we are to “take back control”, but we will need some sort of international court to adjudicate on disputes about this “tariff free access”. Will we establish a new court? That alone would take years. The bluster unravels however generously one tries to interrogate the detail.
Some of the naivety in his positions are exposed by his failure to understand even basic geographical facts about the country on whose behalf he is negotiating. In interview today Mr Davis expressed concern that “One of our really challenging issues to deal with will be the internal border we have with Southern Ireland and we’re not going to go about creating other internal borders inside the United Kingdom.” Does he believe there is a dominion called “Southern Ireland”. If he meant the sovereign nation called Ireland, why does he refer to an “internal border” and “southern”? These blunders and the messianic megalomania of his declaration we will have free trade with an area “ten times the size of the EU” are amusing, but they also demonstrate how ill-prepared for the scale of the task ahead Mr Davis and the team of 40 in his department really are.
Along with millions of others, I (as a lawyer) engage with the minutiae of the structures of EU rules. When one engages, as our civil servants will have to, with the technocratic and frankly quite mundane reality of re-ordering our legal relationships with the EU, Davis’s brand of fantasy talk is of little assistance. Take one small example with which I work, the Habitats Directive. This is concerned with the maintenance of bio-diversity. It seeks to achieve this by creating a coherent ecological network of special areas of protection across the continent. Each member state has designated sites for special protection and each state has developed detailed provisions within their domestic systems for protecting those sites and for the protection of endangered species. The system is sophisticated and detailed and its success depends on its internationalism and cooperation. Implementing this supra-national system regulated by established legal frameworks into domestic systems takes years. Working out how to replace that with a sovereign equivalent would itself take years and years of domestic consultation and parliamentary scrutiny. Yet these provisions are just one fraction of EU environmental law, the environment itself appearing to be a peripheral issue that does not merit a mention in David Davis’ vision.
I am not a “remainer” out to frustrate the process. My concern since the referendum has been to encourage people to engage with designing a form of Brexit which does not sacrifice the interests of ordinary people while our leaders are consumed in an orgy of laissez faire trade deals. But today, my fears have expanded. I truly doubt the basic competence of the Minister to deal with any of this- even the orgy of free trade. He is clearly not on top of the vast majority of what is at stake. I do not think Davis is up to the task- he has not been chosen for intellect and grasp- but that is not down to him individually, I worry even whether we as a country can manage it all. Davis currently has a department of just 40 civil servants, set to rise to 200 shortly. No doubt the department will attract brilliant fast-track civil servants, but how can they possibly devise a wholly new and radically reformed system based on Davis’ sketched blueprint? They are being tasked with writing a new system of a complexity close to that which has been built over (at least) 20 years by the combined forces of over 500 million people.
In my next post I will suggest two alternatives to the radical shake-up proposed by Mr Davis which might bring the task back within the scope of human capability. These first is adopting the EEA model, somewhat akin to Norway. The second is adopting what I will call “the Sovereignty model” in which the status quo is maintained and nothing changes immediately other than that which is necessarily incidental to leaving the EU and some provisions empowering our Parliament to consider and if desirable pass legislation diverging from EU law piece by piece.
About 70 people came to the meeting at the Newington Green Unitarian Church on 7 July. People were asked to form smaller discussion groups of about 8 people and appoint one member (in each case a woman) to report back to the group on their conclusions.
With the help of Nick Fisher of Hook Research, I asked people to discuss and identify their main priority as to what aspect of EU membership they would like to retain in the negotiations. There was a wide range of priorities identified, including:
- retaining freedom of movement;
- retaining EEA membership roughly along the free-trade “Norway model”;
- continued protection of the environment,
- promoting understanding between people in the UK and understanding why they voted leave or remain;
- preserving the economy;
- the importance of facts and information in politics;
- international engagement and cooperation; and
- avoiding war or violence in Europe, particularly Northern Ireland
I also asked people what they thought should be the campaign strategies and priorities and the groups again identified a wide range of priorities including:
- More consultation of the country before negotiation of terms of a Brexit deal:
- Referendum or election on terms of Exit deal;
- No Article 50 trigger without mandate for shape of leaving;
- Dissolve Parliament/ General Election
- Talking outside our bubbles; grassroots movement and Coordination of all Progressive voices
- Targeting young people
- Cross Party cooperation for progress/ Progressive Alliance
It was clear that many people have not really put their minds to the detail of what leaving Europe might involve. This is hardly surprising since it had never been on the political agenda prior to the referendum, and the debate during the referendum was not on the whole particularly focused on the task of what the new deal with Europe might involve. Few people have any idea what to do about the array of complex but important decisions which now face Britain about free trade and free movement, common agricultural and fisheries policies; environmental law; social policy; banking regulation etc. A lot of people seem to have engaged with questions of immigration, but on this opinion is sharply divided.
There was very little agreement as to political or campaign priorities even within a meeting in which most people were local to the venue, and in which ordinarily there might have been some political consensus.
As to the next steps, it seems to me that the county is at risk of being torn apart with division. We need to work out a deal which fails to please most of the people of Britain (or Europe) but with which most can accept.
My thinking at the moment is that a form of leaving needs to be designed which puts a pause on most aspects of EU membership pending votes by Parliament. It would involve leaving the EU (and thus depriving nationals of voting rights in the Parliament etc.), but retain EEA membership; retain the rights of resident EU nationals; preserve free movement perhaps with some sort of potential modification such as the emergency brake which Cameron failed to negotiate earlier this year. On every other matter EU law would continue to have effect unless and until amended by Act of Parliament. The UK would continue to respect the legal principles of direct and indirect effect of EU Directives on environment; health and safety; regulation of work and immigration etc. EU law would cease to be supreme however, and would be capable of amendment by Act of Parliament. That kind of deal achieves the primary demands of the “leave” camp while preserving the status quo until the sovereign British parliament decides on the mass of components of leaving. It avoids the ill of a government opportunistically legislating by the back door of Brexit negotiations and without parliamentary oversight- which would offend against the case for taking back control.
All of this needs a democratic mandate. That is not going to happen while the negotiations remain in the grip of a new government which has no mandate for any form of deal.
The next meeting will hopefully look at this idea- or other ideas around forming a deal, compromise and conciliation.
The Conservative Party has been advertising for a new leader. The Party believes convention dictates the role will attract a hefty publicly-funded salary and pension, as well as perks including a weekly audience with the Queen, a large house in central London and another in Buckinghamshire, a chauffeur, opportunities for foreign travel, and an attractive portfolio of responsibilities including Head of Her Majesty’s government and architect of the most significant constitutional settlement in British history.
From the five candidates who have put themselves forward for this position, three will be excluded by the votes of 330 members of Parliament, with the first eviction starting today. Once those members have had their say, and assuming they do not decide upon a so-called “coronation”, the choice between the remaining two candidates is opened up to the enfranchised 0.5% of the population- that is to say the 150,000 members of the Conservative Party, most of whom are aged over 60. The winner of this, the democratic world’s least democratic election for Head of State, gets to enjoy de facto powers exceeding those of many presidents. No parliament ever wrote or approved this process and no electorate ever voted for it: this most unconventional process for the appointment of a new prime minister and a new government is supported solely by appeal to the murky and ever-shifting ‘conventions’ of our unwritten constitution. But it is not just the process by which our new government is being selected which travesties the referendum call to reclaim sovereignty, it is that each of the putative leaders believes winning the leadership contest will confer on them free rein to implement such policies on Brexit as they assert are mandated by the referendum (as well as a wide-ranging reformulated domestic agenda).
The fault-lines between the political positions of the leadership candidates have only just started to emerge, but even what has been said by them in announcing themselves as contenders reveals this democracy pageant to be a grotesque. One fault line lies on an issue whcih directly affects over three million UK residents, as well as tens of millions more who live or work with or around them. It concerns the rights of EU citizens resident in the UK following withdrawal. The fundamental rights of millions of people to live, work, and enjoy a home and family are just one aspect of the innumerable issues that will arise from the UK leaving the EU.
Frontrunner Andrea Leadsom, with the support of Brexiters Boris Johnson, Ian Duncan Smith, John Redwood asserts that, if she becomes prime minister, her policy will be to guarantee the continuance of the rights of all EU citizens already here. Nigel Farage agrees with this principle. By contrast, Theresa May says insouciantly that in due course, as part of the negotiation with Europe, we will need to “look at the position” of people who are here from the EU. There is nothing any of us can do about this peril to those we know and love, we’ll just have to wait to find out what she decides in the course of negotiations – probably in 2017 or 2018. Whatever it is she may have in mind was not set out in any general election manifesto and indeed the issue of the rights of EU citizens already here merited barely a footnote in the referendum (since those campaigning to leave seem to resist any idea of affecting existing EU residents). Yet Mrs May asserts it will be in her gift to negotiate as she thinks best on this issue, and that there will be no general election before she sets about withdrawing from the EU on her terms (such as they may be when she looks into the position).
Theresa May cannot claim there is any popular mandate for her putative policies. The referendum tells us unequivocally that 48% of the electorate have voted not to threaten the rights of EU citizens living here. In addition to those voters, we know today that leading figures in the Brexit movement such as Farage, Johnson and Leadsom believed they were fighting to leave the EU on the basis of a withdrawal agreement that would not affect resident EU citizens’ rights and obviously they were not alone in that position. It can safely be inferred that the referendum gives no mandate for depriving resident EU citizens of their rights: on the contrary a majority voted intending the resultant position to preserve those rights if we withdrew. A similar point can be made about freedom of movement- again 48% certainly support it, and a large proportion of the “Leave” voters also appear to have expected Brexit to encompass access to the single market on terms that free movement of workers would continue. Yet the candidates for the leadership are all now speaking of ending freedom of movement.
While constitutional ‘convention’ is being used to usher in the most unorthodox new government, there is no convention that allows governments to invent radical policy platforms premised on spurious inferences about public opinion. We are now embarking on the single most significant recalibration of our constitution and our society in a lifetime. It is not for a party leadership election to determine its terms. The established convention is that of the election manifesto.
Examining the complexity and range of possibilities thrown up by just one single component of the web of terms of withdrawal displays the ironic mockery of the British people’s vote to “take back control” now being performed by this leadership election. Beyond this issue of the rights of resident EU citizens, there are ramifications in withdrawal for almost every part of the economy; for the environment; for workers’ rights; for education policy, etc. How each component is to be renegotiated has never been properly debated or determined by the people of this country. There was no consideration of these issues in manifestos in the run up to the last general election and the referendum offered no opportunity for a collective say in how they are resolved.
Democracy is not only a right, it is the best means we have of making the best decisions we can. Fully participatory democracy alone secures informed, good-quality decision-making and, crucially, a peaceful acquiescence in unpopular decisions. There is just about a democratic path out of this which avoids the blithe autocracy that the Conservative Party believes is its entitlement. It requires national discussion of the agenda for withdrawal. There must be no trigger of the article 50 process before that happens. The passage of primary legislation as to the timing and terms of triggering article 50 (if the government does not deploy the prerogative trigger of article 50) would offer some limited opportunities for public debate. But the swiftest and most established process for resolving complex questions of policy of this scope and scale is a general election.
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.