Brexit ramble

[grok_mctanys]

I've been reading and watching a bunch of stuff about Brexit. It's depressing, and probably not very good for me, so I should probably stop, but I can't seem to help myself. Anyway, there have been a couple of things which keep coming up, that stick in my head, and go round and round and round. I decided to write them down to see if that would help me make sense of them, and it didn't much.

Then I overthought a lot about whether I should post this at all. Seriously, I just wrote 3 self-loathing paragraphs about why would anyone want to read another idiotic ramble about Brexit, and then a meta-discussion about why anyone would want to read that, and it was all terrible, so I just deleted them and put the actual ramble behind a cut, so you can easily ignore it if you want.

Thought the First is the notion of the "people's vote" - having another referendum on Brexit. I have seen this referred to by Brexiteers as a "betrayal of democracy" (or words to that effect), and in turn seen Remainers mock the idea that a vote by the people being a betrayal of democracy as a hilarious misunderstanding of the nature of democracy.

As I see it, it's not the "referendum" part of "second referendum" that's a problem, but the "second" part. The idea of just asking the question again, in the hope of getting the result you wanted the second time around, bothers me. What if people vote out again? Do you call for a third referendum? A fourth?

There is the argument that people didn't really know what they were voting for with Brexit the first time around. Maybe that's true, but so what? Adults, citizens, are allowed to vote in ignorance. Even if you think they shouldn't, it is their right to do so, and their right not to be second-guessed by people who think they know better - even if they do know better. Heck, do people really know what they're voting for in a general election? Did people really know what they were voting for with Thatcher? Or Blair? If a PM steers their party and the country in a way that is unexpected, rather than going through the established processes of calling for votes of no confidence (or whatever), should the opposition be able to call for another general election because "the people didn't know what they were voting for"?

We had a "people's vote". It was on 23rd June 2016, and the people voted, and together we voted to leave the EU. Some people may have voted in ignorance, some may have voted out of racism or xenophobia, some may have voted to try and turn back the clock and relive the glory days of Empire, but many voted because they'd made good faith predictions that doing so will benefit the British economy/workforce somehow. Whatever our reasons, we voted.

Thought the Second is whether it's even possible to cancel Brexit.

It's possible to leave the EU because of The Lisbon Treaty, Article 50. It's 9 sentences in 5 paragraphs, and shouldn't take more than a couple of minutes to read, so go ahead and give it a squint.

Treaties are contracts; contracts between countries. Contracts specify which actions are possible by which parties under the terms of the contract. If a contract does not include any terms to cover an action, that action is not covered by the contract. I know that's all a bit tautological, but I feel it's kind of necessary.

Because, as far as I can tell, The Lisbon Treaty does not contain any terms indicating how Article 50 may be un-invoked.

I've seen some arguments that say that doesn't matter, because paragraph 2 says "A Member State which decides to withdraw shall notify the European Council of its intention." - and so invoking Article 50 doesn't say that you are leaving the EU, just that you intend to do so later (2 years later) - but if your intention changes before then, then you might decide to not leave. However, I find that unconvincing, because paragraph 3 says "The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period." (emphasis mine).

We sent the notification. The Treaties shall cease to apply two years after the notification (unless some other date is agreed upon). Looks pretty clear to me.

On the other hand, the author of Article 50, Lord Kerr, has said "you can change your mind while the process is going on" and "they might try to extract a political price but legally they couldn't insist that you leave".

If that's the case, where are the treaty terms stating it? If the treaty does not contain the terms by which the notification may be withdrawn, on what grounds does he think that withdrawing the notification is possible? If it's on the grounds of "he wrote it, so he is the person who best knows what it means", well, that falls foul of the Contra proferentem doctrine that "the preferred meaning should be the one that works against the interests of the party who provided the wording." (because if you wanted the contract to say the other thing, then you should have been more clear about that, which you could have been, because you wrote it).

It's like handing in your resignation at work. Your employment contract contains terms which state how it can be terminated, by either side. For the employees part, they probably have to notify a specific person, in a specific manner. There's a notice period, which is there to allow both employer and employee to handle the termination in as smooth a manner as possible. You don't get "backsies" on handing in your notice, unless there's a clause in your contract which specifically says you can, because if there isn't a clause that says you can, then there are no terms under the contract in which you can. It doesn't matter how long your notice period is, the notice period is not mind-changing time, it's make-sure-the-transition-goes-smoothly time.

I mean, it's not impossible that we could un-invoke Article 50, if the EU agreed. You can always ask your employer to ignore the fact that you handed in your notice, and to keep you on, and in some circumstances they might even say yes. We could ask the EU to forget that we invoked Article 50, and - unless there is some other treaty they have which precludes it, and I don't see why there would be - they could voluntarily agree to do so. But I don't understand the logic underlying the argument that we could do it unilaterally if we just decided to.

I'm not a fan of the Brexit result (to put it mildly) but I don't want to be a sore loser about it. I just don't get the logic behind the call for a second vote, or behind the notion that we could change our mind even if we wanted to. Am I missing something, or can we move the Brexit discussion on to sub-topics that are a bit more constructive?

Comments

[rich_jacko]

On Thought the First, the difference with a general election is that we all get to change our minds, at the most five years down the line (and often much sooner than that). That said, I do have difficulty with the idea that you just keep asking the question until you get the answer you want. If we had three Leave results followed by one Remain result, that doesn't feel like a strong mandate for remaining.

I think the important test on whether there should be a second vote is whether people actually want one, rather than it being imposed by politicians hoping for a different outcome. If there is enough polling to support one, then it should go ahead.

There's a lot of debate on your Thought the Second. It's muddied further by Donald Tusk suggesting the Article 50 notification could be withdrawn, while the European Commission's press release is pretty unequivocal in saying, "Notification is a point of no return."

A legal case in Scotland has referred the matter to the European Court of Justice for a definitive view. That seems like a pretty stupid case to bring, at least at this moment. What if the ECJ gives the "wrong" answer? Have these people learned nothing from the referendum? ;o) The time to bring it would be at the very end of the two-year negotiating period, not before. That way, at the very least, you buy yourselves a few months' extra negotiating time while you're waiting for the debate to be settled.

My own view is that Article 50(3) is designed to stop negotiations dragging on indefinitely, and prevent the withdrawing State from being kept in the Union against its will while those negotiations drag on. It doesn't suggest to me that the State can't withdraw its notification.

Contra proferentem would work in the UK's favour here. Lord Kerr isn't a party to the treaty. Legally speaking, the European Commission provided the wording, so if there is ambiguity, the decision should be in the UK's favour, not the Commission's.

I doubt it would come to that though. Politically, it would be very difficult to expel a member state from the EU against its will for anything short of major human rights abuses or flagrant disregard for EU rules on a large scale. The EU is very good at fudging its way through problems with treaties through creative interpretation, and the general view seems to be that the UK should be allowed to stay.

So yeah... I do think this is a discussion that's still worth having. Brexit is not yet inevitable. The biggest question for me though is whether the outcome of a second vote would actually be any different. Polls consistently suggest a slight majority for Remain, but they said that last time, and turnout is likely to be higher among Leave voters, so it's too close to call.

Which puts us right back to where we were two years ago, and trying to persuade enough people that leaving is a bad idea. The discussion really is no further forward.

[grok_mctanys]

"Brexit is not yet inevitable."

Maybe. But I think that a large part of my sense of dread - which I failed to actually state in however many words I rambled on for - is that it seems like that is the idea which has prevented us from planning for it properly.

I was having a quick look through the recent batch of preparedness notices which the government published, and one that caught my eye was the one about international driving permits, which might be needed after Brexit (and was dismissed as "project fear" by many - possibly including some in government(?) - for ages). It looks like they're pretty easy to apply for, but do we have the staff in place to process all the applications we're going to have to issue to all our commercial drivers who transport goods abroad, all before the brexit date? If we don't have them yet, how long will it take to recruit and train them? Is there time to do that so that we will be able to process all the applications on time?

That's just driving licenses. When it comes to customs, we might need hundreds of new customs agents. Are they being trained? What about the buildings where they'll work? Has planning permission even been applied for? I've heard that Boris Johnson is suggesting using "technology" to prevent the need for this, but does he have specific technology in mind? Is it written yet? Have the requirements even been gathered?

Maybe the brexit deal will cover IDPs and customs. Maybe it will cover most of the issues that the preparedness notices cover. But will it cover all of them? For those that it doesn't, when will we know, and will there be enough time to make whatever comprehensive preparations are genuinely needed to keep whatever it is running, if not smoothly, then at all?

It seems like, while people think that "Brexit is not inevitable", we keep not making enough preparations for it actually happening. And that is what will make it a disaster.

Edit: I should have said, while people think "Brexit is not inevitable", or "we'll get a good deal from Brexit, somehow", we keep not making enough preparations...

IMO there is too much hoping for the best, and not enough preparing for the worst. And I don't think that preparing will start to happen properly until the hoping (of which "brexit isn't inevitable" is a part) dies down a bit.

[rich_jacko]

I think generally everyone is banking on a deal. If a deal happens, both sides have already agreed a 21-month transition period in which nothing much will change until January 2021.

If there's no deal, all bets are off. In a worst-case scenario, there are some things that will need to have been sorted by day 1 (Planes being able to land strikes me as one of the most urgent ones!), but plenty of things that can be done more slowly. Neither side has the customs infrastructure in place, for example, so even under "no deal" it will be a while before levies can practically begin to be collected.

[grok_mctanys]

Also, your link from Donald Tusk quotes a tweet saying:

Unless there is a change of heart among our British friends, #Brexit will become a reality – with all its negative consequences - March next year. We, here on the continent, haven’t had a change of heart. Our hearts are still open for you.

That to me suggests that the EU, or at least some of the people at the top, are open to the idea of allowing Britain to withdraw the Brexit notification. But that still doesn't mean that Britain can do so unilaterally. And if allowing the cancellation of Brexit is not solely at the discretion of Donald Tusk, whether his heart is open or not may turn out to be irrelevant.

Like I analogised, your employer can decide to allow you to withdraw your letter of resignation, if it wants. Two willing parties can come to any agreements between themselves that they want to. But your employer doesn't have to, and you can't make it.

I just don't think it's a forgone conclusion that Europe would want to let us cancel Brexit.

[rich_jacko]

Maybe. It could do with being clarified before any second referendum took place. But if it does turn out we need agreement, negotiating with the Council is preferable to negotiating with the Commission. The Council are more likely to be swayed by national economic self-interest, and less likely to be bothered by things like the integrity of the EU project. That's likely to work in the UK's favour (although we might need to offer out sweeties to try to get some member states on board).