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Is There a Way Out of Brexit?

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Theresa May, December 2017 © Alexandros Michailidis / Shutterstock

September 04, 2018 11:04 EDT

Theresa May has ruled out a second referendum on Brexit. But with time running out, what will the UK do? Former Irish Prime Minister John Bruton explains.

On September 2, British Prime Minister Theresa May wrote in The Sunday Telegraph that to have a second referendum on Brexit would be a “gross betrayal of democracy.” If May believes that, she doesn’t understand democracy very well.

She seems to suggest that democrats, having made a decision, should never change their minds. In fact, democracy is all about creating mechanisms whereby voters can change their minds. Democracy allows voters to change their minds through parliamentary elections and sometimes by having another referendum on the same topic. Democracies usually work through parliaments, and parliaments often change their mind. Indeed, most of their work consists of changing laws made by an earlier parliament. Changing one’s mind is the essence of democracy.

Totalitarian or dictatorial regimes do not a have an inbuilt mechanism for changing their minds. This makes them brittle and ultimately weak. In contrast, democracy is flexible, durable and strong because it has inbuilt mechanisms for changing its mind.

The difficulty behind holding a second referendum on Brexit is not the one advanced by Prime Minister May. It is the fact that we are running out of time, and also that there is no consensus in British politics on what question to put to the people in such a situation.

First Referendum

In fact, the dilemma that May now faces arises from the underlying weaknesses of the UK political system. Although in theory the British Parliament is sovereign and all powerful, when it came to Brexit it turned out to be weak and indecisive. It did not feel it had the authority and legitimacy to decide on the Brexit question on its own, so it decided to get the voters of the United Kingdom to decide the issue.

Under former Prime Minister David Cameron, the government held a referendum in June 2016 in the full knowledge that it was asking voters to decide on Brexit, without being able to provide them with information on what Brexit would mean in practice. This was because, as Parliament knew, the terms of Brexit could not be dictated by the UK, but had to be negotiated with the European Union. To place voters in such a position was a dereliction of duty.

The right course would have been to apply to leave the EU on its own authority, negotiate terms and then put the result to a referendum or a general election. In that situation, voters would have known exactly what Brexit meant and could vote to either accept it or decide to stay in the union on whatever terms were on offer.

How did the UK get into a position that its Parliament was so paralyzed by the Brexit question that it had to call a referendum without being able to tell voters what Brexit actually meant? The answer is to be found in recent changes in the way the two big parties — Conservative and Labour — choose their leaders. Instead of this choice being in the hands of members of parliament, who are accountable to their electorates and have to take account of middle ground opinion, it was handed over to largely anonymous and self-selected party members, voting as individuals and accountable to nobody. In the case of both parties, these members tended to have more radical opinions than the broad mass of voters. So, in pursuit of a dream of party democracy, parliamentary democracy in the UK has been so deeply damaged that it could not, and still cannot, decide on Brexit.

Second Referendum

While Prime Minister May is wrong to say that holding a second referendum on Brexit would be a betrayal of democracy, there are practical difficulties with holding a second vote on Brexit at this late stage. The big problem is to know what alternative to Brexit would be on offer to voters. Would it be continuing membership on existing terms, or would it be crashing out of the EU on March 31, 2019, when the Article 50 deadline expires?

The answer to that question hinges on the interpretation of Articles 50 (3) and 50 (5) of the EU treaties. Unless the UK negotiates a time extension under Article 50 (3), and this is unanimously agreed by the remaining 27 EU states, the country will be out of the European Union by the end of March next year. The UK would then, outside the EU, have to apply to join the European Union as a new member.

So, to hold a referendum on a choice between the agreed Brexit terms and staying in the EU on its existing terms, the UK would have to persuade the rest of the union to stop the clock on its Article 50 exit. Doing that, while also negotiating Brexit terms, seems like a huge task to undertake between now and March 2019, and the present Conservative Party government does not want to do this anyway. There is little prospect of a different government coming to office in London before March that would follow such a course.

For the EU, there would be great reluctance to prolong the Brexit uncertainty, unless union EU was certain that the UK electorate were minded to reverse the earlier referendum decision. Those conditions do not exist now and are unlikely to arise before the clock stops in March.

So those of us who would like to see the United Kingdom in the EU are forced back to considering what might happen if the country leaves the union and then, after some time, changes its mind and decides to try rejoin. This could happen, but the timing is impossible to predict.

If the UK negotiates something along the lines of the Chequers white paper, which sets out the British position on Brexit, it will find itself having to apply EU rules on which it has no say. That could lead to a gradual change of mind. If it fails to get something on the Chequers or European Economic Area lines and instead has to impose customs controls on all EU traffic, the shock will be more immediate. Minds could change more quickly. Nothing is certain here.

Should the UK change its mind and seek to rejoin the EU, it will have to apply under Article 49 of the EU treaty. It would then have to abide by all EU policies, probably without some of the exemptions it now enjoys on issues like the euro and financial contributions. Its application would have to get unanimous consent of all existing members. Its terms of its rejoining would presumably have to be accepted by the UK electorate in a referendum as well as by Parliament.

Extension to Article 50

The great pity is the haste with which David Cameron and Theresa May dealt with the Brexit question — Cameron in calling a referendum and May in sending off her Article 50 letter — meant both of them failed to work out a feasible model for Brexit that was compatible with EU interests. Both of them seemed to assume that the UK could decide and the rest of the EU then would just fall into line.

The only meaningful referendum the UK could have before Brexit actually happens would be to ask the UK electorate to agree to apply to the EU for an extension of the time limit under Article 50 (3). This would have to be for a number of years, not just months. Even if the electorate agreed, there is no guarantee that the other 27 states would agree, but it is likely they would.

This option would only become become politically realistic if the three main party leaders agreed on it. This is unlikely. There seems to be no private dialogue between the main party leaders in London and, as a result, Parliament is not functioning as it should.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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