Britain has held a referendum to decide whether or not to stay in the European Union (EU). Leave won by 52 percent to 48 percent. Too many commentators are suggesting the matter is settled. Far from it.
People will say there will be overwhelming moral and political pressure to respect the will of the voters. But my general point is that as the process of leaving gets more and more dragged out, so this pressure may become less and less relevant. As time goes by, so those supporting Remain may reasonably question what the will of the voters is and what mandate the government has.
Consider the following:
The referendum is merely advisory. Nothing can happen until the government invokes Article 50 of the Lisbon Treaty. It is now clear that David Cameron has no intention of doing that. We can already be sure, therefore, that everything is on hold until October when the Conservative Party will elect a new leader to replace Cameron as prime minister (PM).
Whom will Conservatives elect? Suppose they elect a PM who is pro-EU. If the new PM stood on a platform saying they would not initiate Article 50 (or at least they would not do so without another referendum or general election), they would have a mandate from their party to do nothing.
It is true that this new PM and their Conservative government might then seem to be rejecting the will of the people. But they might be willing to live with that. And, besides, October is four months away. By October new polls might suggest public opinion has changed dramatically in favor of Remain. A new PM could appeal to those polls to raise questions about what was the will of the people.
Suppose, alternatively, that the Conservative Party elects a PM who is anti-EU. The PM would face difficult decisions. For a start, if they confront polls suggesting public opinion has changed, they might have to decide whether they are willing to press ahead with an unpopular measure that could cost them and their Party the next election. Even if that decision did not trouble them, they would face the question of when to initiate Article 50.
Even if public opinion were still for Leave, there would probably be pragmatic concerns, such as those about the economy, which might give them reasons to delay.
Also, the UK would need to negotiate the terms of its exit, and it would be in a stronger negotiating position before it invoked Article 50 than after. So, even if the government wanted to leave, it might delay invoking Article 50 until much of the negotiations had been concluded. Given the number of treaties and laws that would need replacing and amending, it is hard to see the UK reaching the optimum point of exit before the next general election. Who knows what parties might then stand on what platforms to get what mandates?
Let us look past all these issues. Imagine the Conservatives elect a new PM who wants to press ahead and invoke Article 50. The first problem they face is the constitutional one of who needs to consent to this policy. Clearly, the UK Parliament in Westminster would have to give consent. But would it do so? Although it probably would, pro-EU MPs might oppose the government, so the outcome is not a foregone conclusion.
More interesting, the devolved Parliaments in Northern Ireland, Scotland, and Wales might have to give some kind of consent. Scotland almost certainly would not do so. The resulting constitutional issues are complex. The UK Parliament at Westminster could probably move ahead without the consent of the devolved Parliaments, especially if it were willing to alter the terms of devolution. Equally, however, the UK Parliament would probably then have to alter the terms of devolution in a way that would cause something like a constitutional crisis. Scotland would probably have to be given the opportunity of holding another referendum on its independence from the UK.
But wait. That would mean the question of the Brexit referendum should not have been: Should the UK remain a member of the EU? It should have been: Should we dissolve the UK so those parts of it that want to leave the EU may do so? Those who voted in such numbers to leave the EU might not have done so if they had been told doing so would involve dissolving the UK. The UK Parliament at Westminster does not currently have a democratic mandate to break up the UK so bits of it can leave the EU. If leaving the EU gets bundled with Scottish independence, the Remain camp will have a strong argument for insisting on another referendum. Even if an anti-EU government were to press ahead without granting this second referendum, the strength of this argument might give Westminster MPs reason to refuse to back the government.
Another question mark
While we are on the topic of Scotland, let me briefly raise a question mark over another piece of conventional wisdom. Most commentators seem to think that if the UK leaves the EU, Scotland will seek independence from the UK and join the EU. But even if an independent Scotland wanted to join the EU, it would not necessarily be allowed to do so. EU rules would require its accession be agreed by all 27 members (currently there are 28 member states, but we are assuming the UK has left). There are many member states that would have reasons to vote against Scotland’s accession. Most obviously, Spain, given its issues with Basque and Catalan separatists, might be reluctant to give any encouragement to nations that want to succeed from existing states and claim independent membership of the EU.
Finally, let us turn our attention from the UK to the EU. Readers might have noted EU leaders pressing for a quick start to Britain’s exit. It is important, therefore, to point out how irrelevant their views are. Under EU law, the EU has no say over when a member state invokes Article 50. Until the UK invokes Article 50, the timing of any possible exit is entirely in its hands. Besides, while EU leaders might dislike the current uncertainly or want to improve the EU’s negotiating position with the UK, I doubt many want to press Britain to leave. The EU has a history of uncomfortably muddling its way through crises.
My hunch would be that, behind the scenes, EU leaders are hoping this will prove just one more such crisis.
The Brexit vote is not the end of the matter. It barely begins it. For now, the only
certainty is uncertainty.