The k2p blog

The Brexit referendum was advisory and non-binding. There is no absolute requirement for the government or parliament to follow the result. There may be a moral obligation but with the split 52/48 result it is not all that compelling. It could be argued that since David Cameron called the election, he is responsible for implementing whatever result it produced. He has said that he will not start the formal Brexit process (invoking Article 50) and it seems unlikely that he will cave in to pressure from the EU, either in verbal or written form, such that the EU can “deem” the process to have started. Certainly if he stays he has some obligation, but he has got out of that by announcing his coming resignation.

The same parliament but with just a new Prime Minister – and even one from the Brexit camp – will not have a parliamentary majority in favour of Brexit. (In fact I am not convinced now that a Brexiteer could even win a majority among the current Conservative MP’s). Without a parliamentary majority no necessary legislation will get passed. Moreover the Scottish parliament will withhold consent for any legislation which makes any change to how EU laws affect Scotland. Theoretically, the UK parliament could overrule a Scottish withholding of consent, but, without a parliamentary majority for Brexit, that  probably could never happen. So the new Prime Minister has little option but to call a General Election asking for a mandate. But first he has to lead a party which takes on Brexit in its manifesto. And that today is not possible for either the Conservative or the Labour party. I cannot see a Conservative Conference in October accepting to put a Brexit in its manifesto. The Labour party is in shambles and it was labour voters defecting to a UKIP immigration agenda which tipped the balance in the referendum. The Liberal Democrats will not have any anti-EU manifesto and UKIP will. Even supposing that UKIP win a number of seats, they will never have enough to form a government. The bare majority in the referendum comes from across party lines. But any government, now or after a general election, will follow party lines.

So, even after a General Election, there can be no government committed to a Brexit and willing to set it in motion.

The EU is suffering from “interesting times”. Perhaps the EU will actually be reformed along the way. But I am beginning to wonder – just two days after an advisory, non-binding referendum – whether there can be a Brexit at all without a government and a parliament committed to implementing a Brexit. Is Brexit already dead?

My preference for a reformed EU without a Brexit is not – at least on this Sunday evening – not looking as impossible as it was yesterday.

The key question for the timing of a UK exit becomes “Can any UK government invoke Article 50 merely on the strength of an advisory referendum and without the express approval of parliament?” I think not. It may be that merely changing Prime Minister will not create a majority in parliament and then a General Election on the question of Brexit will be needed. Without a government willing to apply for withdrawal, Brexit does not begin.

The core founding members of the EU met yesterday and have issued demands that the UK leave the EU quickly. But the EU bureaucrats and the core founding countries seem terrified of a slow measured process of withdrawal. It is not difficult to see that they are expecting a domino effect and further countries holding referenda about EU membership. No matter what they do referenda in the Netherlands and France are just a matter of time.

But their strident calls yesterday for a quick withdrawal seem to be a knee-jerk reaction. David Cameron and his government cannot now invoke Article 50 (he could theoretically do that but after his resignation speech he would then have to emigrate). Suppose the UK, by October, gets a pro-Brexit Prime Minister. He would have a new cabinet and it is inconceivable that he could invoke Article 50 without first getting that action approved by the UK parliament. That approval will not be so easy. Assume that such approval is forthcoming. The timing of an invocation of Article 50 would then be at the discretion of that new government and that would surely not happen until all member countries had been sounded at the political level (rather than the elite bureaucrats of the EU), as to the conditions of the withdrawal.

The EU bureaucrats can talk as tough as they like, but they know very well that there are no provisions in the EU treaties to expel a member.

Extract from : Withdrawal and expulsion from the EU and EMU. Legal Working Paper Series No 10 / December 2009.

Unlike the Charter of the United Nations (UN), Article 6 of which expressly provides for the possibility of a UN Member being expelled for persistently infringing the principles of the Charter, there is no treaty provision at present for a Member State to be expelled from the EU or EMU. The closest that Community law comes to recognising a right of expulsion is Article 7(2) and (3) TEU, allowing the Council to temporarily suspend some of a Member State’s rights (including its voting rights in the Council) for a ‘serious and persistent breach by a Member State of the principles mentioned in Article 6(1)’ of the EU Treaty. This might be thought of as a preliminary step to the expulsion of a Member State, but it is not the same as its definitive expulsion.

In fact the EU cannot expel a member without effectively negating all its treaties:

A Member State’s expulsion from the EU or EMU would inevitably result in an amendment of the treaties, for which the unanimous consent of all Member States is necessary under Article 48 TEU. Given that a Member State’s expulsion would, by definition, be contrary to the presumed wish of that Member State to continue its membership of the EU, a right of expulsion would be inconceivable, since it would have to entail an unauthorised Treaty amendment, in breach of Article 48 TEU. Besides, it is likely that some Member States would object to the introduction of a right of expulsion in the treaties, coupled with an amendment of Article 48 TEU to make that possible, since this would expose them to the risk of being forced out at some future date. 

In practice I begin to think that a General Election will be needed before Article 50 can be invoked and where the incoming government will need to have been elected to implement a Brexit.

Listening to the European bureaucrats reacting to Brexit today, it was very quickly obvious as to why euroscepticism has never been as high and as widespread in Europe as today. Every bureaucrat, who by definition is part of the EU gravy train, was angry and wanted the UK out as soon as possible. Not one, not Jean-Claude Juncker, not Martin Schulz, not Donald Tusk did not but want to punish the UK for the poll result. Juncker would not even address the question of euroscepticism within member countries. What he does not want to see, it seems, does not exist. He does not see that it is the form and manner of the EU itself which fuels the desire of many to leave.

They are the non-elected, spoiled and pampered bureaucrats of Europe who have gotten used to the idea of issuing European Directives, for all EU members to follow and overruling any objections from national parliaments. The elected politicians from Germany and France were a little more circumspect in their statements. The arrogance and self-righteousness on display today was as clear a symptom of the European malaise as could be imagined. They had no conception of the contempt in which they are held by so many in Europe.

I have no doubt that the UK can manage without being a member of the inner circle of the EU. Of course the UK will need to negotiate a good trade agreement with the EU but there is no reason why this should not be possible – in spite of the EU bureaucrats. Angela Merkel indicated today that some form of EU association with the UK would not be unthinkable. The bureaucrats, of course, dislike this because it may give heretical ideas to the eurosceptics in other countries. It is a myth to think that trade with the US or China or Latin America is enhanced greatly by being a member of the EU. I have no doubt, for example and from my own experience, that the UK can do more business in Africa or in India from outside the EU. There are trading opportunities in a Brexit – but it will need some skill to seize them.

But the one thing that struck me today was that for the survival of the EU in some sustainable form, the EU bureaucrats need to be reigned in by their own politicians from the member countries. Here I mean by the politicians in their own governments and parliaments and not the utterly useless MEPs in the even more pointless European Parliament. The EU bureaucracy has become parasitical. The self-serving and blinkered behaviour of the bureaucrats keeps them completely out of touch with how deep euroscepticism actually runs. Their denial of reality is the single factor which is most likely to lead to the break-up of the EU.