An un­cod­i­fied con­sti­tu­tion, par­lia­men­tary sovereignty and their ‘con­sul­ta­tive’ ref­er­en­dums spell dis­as­ter, writes Colm McCarthy

Sunday Independent (Ireland) - - Front Page -

THERESA May’s ‘smooth and or­derly Brexit’ is emerg­ing from the West­min­ster fog look­ing more like a Bri­tish con­sti­tu­tional cri­sis. The with­drawal agree­ment — needed in or­der to ease the tran­si­tion to non-mem­ber sta­tus for the UK — was meant to have been signed and rat­i­fied last Oc­to­ber af­ter 18 months of ne­go­ti­a­tion. In­stead the mi­nor­ity gov­ern­ment lost two im­por­tant votes last week and was found in con­tempt of par­lia­ment be­fore the hol­i­days.

The vote on the UK’s with­drawal agree­ment with the EU-27 will fi­nally be taken on Tues­day — and a heavy gov­ern­ment de­feat is pre­dicted.

There are just three pos­si­ble out­comes: the deal is agreed as ne­go­ti­ated (but there is no par­lia­men­tary ma­jor­ity); there is a nodeal crash-out at the end of March (most MPs are against this); or a de­fer­ral of the exit date, a course which would re­quire an ini­tia­tive by the gov­ern­ment, which it is re­fus­ing to con­tem­plate. The gov­ern­ment has lost its au­thor­ity and in nor­mal cir­cum­stances there would be a gen­eral elec­tion. But May is plan­ning to per­sist and Jeremy Cor­byn’s op­po­si­tion can­not muster the votes to sack the gov­ern­ment.

If par­lia­ment will not agree the May deal, and can­not re­place the gov­ern­ment, it can­not pre­vent a self-im­ple­ment­ing exit just over 10 weeks away, with­out any with­drawal agree­ment and en­sur­ing guar­an­teed chaos.

A no-deal Brexit will hap­pen, with no tran­si­tion pe­riod, on March 29 no mat­ter how many res­o­lu­tions to the con­trary are car­ried by MPs. They can avoid no-deal only by vot­ing for May’s deal or by some­how en­gi­neer­ing a de­fer­ral of the exit date.

How a rebel par­lia­ment could do this with­out the co­op­er­a­tion of the ex­ec­u­tive is un­charted con­sti­tu­tional ter­ri­tory. The UK can de­fer a March exit ei­ther by re­vok­ing the Ar­ti­cle 50 res­ig­na­tion let­ter (since the Euro­pean Court has ruled that it has the uni­lat­eral right to do so, in ef­fect can­celling Brexit al­to­gether), or by seek­ing an ex­ten­sion of the two-year no­tice pe­riod pro­vided in that ar­ti­cle and now al­most ex­hausted.

To re­voke the Ar­ti­cle 50 no­ti­fi­ca­tion — the sim­plest and clean­est means of avoid­ing no-deal — would keep the UK in the EU in­def­i­nitely in de­fi­ance of the 2016 ref­er­en­dum ver­dict. It would be hugely di­vi­sive but would see the UK re­tain all its cur­rent mem­ber­ship perks — a cut-price bud­get con­tri­bu­tion, ex­emp­tion from the Schen­gen pass­port-free travel ar­range­ments and from the com­mon cur­rency and var­i­ous opt-outs from so­cial and jus­tice pol­icy rules.

The UK would re-at­tain the sta­tus quo ante as if the Ar­ti­cle 50 res­ig­na­tion had never been sub­mit­ted, in­clud­ing the en­ti­tle­ment to quit all over again when­ever it chose.

An ex­ten­sion of the exit date be­yond March 29, as dis­tinct from a re­vo­ca­tion, could be de­fended as just an­other de­lay in de­liv­er­ing what peo­ple voted for. But each of the 27 mem­ber states would have a veto on ex­ten­sion, which would be for a pe­riod mea­sured in months and would need to be grounded in a con­vinc­ing pur­pose like a sec­ond ref­er­en­dum rather than some neb­u­lous re-open­ing of ne­go­ti­a­tions on the with­drawal agree­ment.

The EU will not, it would ap­pear, coun­te­nance any re-open­ing. That book has been closed af­ter what the EU see as sub­stan­tial con­ces­sions to May in the deal which par­lia­ment is set to re­ject.

The De­cem­ber judg­ment by the ECJ, in restor­ing to the de­part­ing mem­ber state the uni­lat­eral en­ti­tle­ment to with­draw its Ar­ti­cle 50 no­ti­fi­ca­tion with­out any im­pair­ment of its pre­vi­ous po­si­tion, pro­vides the UK with a valu­able op­tion which the framers of Ar­ti­cle 50 may not have in­tended. The per­ceived value of the op­tion will rise weekly as the clock ticks, un­less one of the al­ter­na­tive routes is cho­sen.

Should the UK seek in­stead an ex­ten­sion to the exit date for the ex­plicit pur­pose of a sec­ond ref­er­en­dum, the EU-27 might feel hon­our-bound to con­cede it. An ex­ten­sion sought to pro­long the can-kick­ing could see mem­ber states ob­ject as a unit or could see in­di­vid­ual states de­ploy their ve­toes. The Span­ish would like Gi­bral­tar, the Greeks the El­gin mar­bles, and ev­ery other mem­ber state could make de­mands — how about in­dem­ni­ties for the ex­tra costs al­ready in­curred?

The shenani­gans in West­min­ster have pro­vided free sched­ule-fill­ing ma­te­rial for the 24-hour news channels and end­less copy for the print ti­tles. But there has been pre­cious lit­tle con­sid­er­a­tion of how this con­sti­tu­tional cul-de-sac has been ar­rived at.

The ul­ti­mate source is the re­sort, in June 2016, to the de­vice of a ‘con­sul­ta­tive’ ref­er­en­dum in an un­cod­i­fied con­sti­tu­tional or­der sup­pos­edly built on par­lia­men­tary sovereignty. Add an un­clear bi­nary choice (where the ‘Leave’ op­tion was am­bigu­ous by de­sign) to a mi­nor­ity gov­ern­ment and the sham­bles is com­plete. If there is to be a sec­ond ref­er­en­dum it may well be the last un­til the United King­dom makes it­self a present of a cod­i­fied con­sti­tu­tion.

While Ire­land’s 1937 Con­sti­tu­tion has not aged well (it is one of the old­est cod­i­fied con­sti­tu­tions still op­er­a­tive in Eu­rope) it is a model of clar­ity on the mat­ter of ref­er­en­dums — when to have them, and how to in­ter­pret the re­sult, the two miss­ing in­gre­di­ents in the UK.

Ref­er­en­dums in Ire­land are for one pur­pose only, the spe­cific amend­ment of the Con­sti­tu­tion, and there is no re­quire­ment for in­ter­pre­ta­tion, the end­less div­ina­tion of the ‘will of the peo­ple’ still dron­ing on in the UK. The Ir­ish Con­sti­tu­tion has ei­ther been al­tered or it has not, the mo­ment the re­turn­ing of­fi­cer sits down.

The 2016 vote was only the third na­tional ref­er­en­dum in Bri­tish his­tory. The first, in 1975 on Eu­rope, and the sec­ond in 2011 on the vot­ing sys­tem, pro­duced large ma­jori­ties for no change. But 2016 pro­duced a nar­row ma­jor­ity for a very ma­jor change, but en­tirely un­spec­i­fied. All three were called to re­solve po­lit­i­cal prob­lems for the gov­ern­ment in of­fice and the first to re­quire change, in 2016, duly came un­stuck.

To her credit, Mar­garet Thatcher fore­saw the dif­fi­cul­ties, or at least some of them, as leader of the Con­ser­va­tive op­po­si­tion in 1975, and op­posed the in­tro­duc­tion of the ref­er­en­dum de­vice on prin­ci­ple and never re­sorted to it in 11 years in Down­ing Street, her late-ca­reer scep­ti­cism about the EU notwith­stand­ing. The UK has bur­dened it­self with an im­pos­si­ble trin­ity — an un­cod­i­fied con­sti­tu­tion, par­lia­men­tary sovereignty, and ‘con­sul­ta­tive’ ref­er­en­dums.

While ac­cep­tance of the May deal does not cur­rently com­mand a Com­mons ma­jor­ity, it could even­tu­ally suc­ceed for the want of a tol­er­a­ble al­ter­na­tive. It is a ter­ri­ble deal for the UK though, de­liv­er­ing a short re­prieve while seek­ing a brand-new trad­ing re­la­tion­ship with the EU and the rest of the world.

A fore­taste of what lies in store was of­fered last week by the Euro­pean Com­mis­sion, which queried whether the IAG group (which owns Bri­tish Air­ways, Ibe­ria and Aer Lin­gus) could con­tinue to be classed as a Euro­pean air­line with­out di­vest­ing some of its non-EU share­hold­ers.

Ev­ery pro­tec­tion­ist in­ter­est in Eu­rope, and they are le­gion, will seek to screw the Brits in the free-for-all of the trade talks to come. And there will be equally chal­leng­ing trade talks with China and Don­ald Trump’s USA, to be con­ducted in com­pe­ti­tion with the EU-27 as the re-set clock ticks down to a rein­car­nated cliff-edge at the end of 2020.

In com­par­i­son to an im­me­di­ate no-deal, May’s deal is just a night­mare post­poned.

‘Theresa May’s gov­ern­ment has lost its au­thor­ity and in nor­mal cir­cum­stances there would be a gen­eral elec­tion’

FLAG­GING: The EU and the UK flags fly out­side West­min­ster in Lon­don. Tues­day will see a crunch Brexit vote in the UK’s House of Com­mons

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