A dangerous limbo

We remain in a situation of complete limbo as to what the government plans to seek for Brexit, possibly because of the forthcoming Supreme Court case but also, presumably, because they have no agreed plans.

A chance photograph of some notes, apparently from a briefing meeting, was seized on by the media for what it might disclose about these plans, but I am not sure that any of the speculation was warranted by what it showed. Instead, it seemed only to suggest an almost embarrassingly naïve and thin set of ideas. Very basic options (EEA, Canada, ‘having our cake and eating it’) were noted, along with the idea that services will be difficult to do a deal over because of ‘the French’ (services are difficult to deal with full stop; the idea that this is because of Gallic ill-will is banal). It seemed to be ‘Janet and John learn about Brexit’, and if this really is the level at which discussions are occurring within government then we are in serious trouble.

What is becoming ever-more clear is the massive damage already being done, even before we get to the point of triggering A50. The recent budget predicted a £100bn fiscal black hole over the next five years as a result of Brexit. This is not, of course, the full price tag of leaving the EU, just the effect on the government’s budget and, moreover, it was a cautious estimate provided by the independent Office for Budget Responsibility (OBR) – the reality may well be much worse.

Even this cautious estimate brought forth howls of anger from Brexit politicians and newspapers, with the OBR viciously attacked. This is now the habitual mode of conduct of the Brexiters. Unable to come up with any plan or any forecasts of their own, they simply lash out at anyone who injects any kind of realism into the situation. This is what happens when a protest movement founded on lies and fantasies actually wins: they continue to be a protest movement but get angrier and even more detached from reality.

Another indication of that is the response of the Brexiters to the refusal of the EU to agree a deal on the rights of existing (including British) migrants within the EU. There is a very good reason for that – it can only be agreed as part of the exit negotiations, which cannot start until A50 is triggered. But for the Brexiters it is just another occasion to proclaim victimhood at the hands of the EU, as if the consequences of Brexit were something that had been forced upon them, rather than something they had agitated for.

At the forefront, if only because the media afford him such attention, of the most spiteful Brexiter rhetoric is the Conservative backbench MP Jacob Rees-Mogg. Described as a ‘leading Brexiter’ (although he played little role in the campaign) this epitome of establishment privilege (Eton, Oxford and the City) depicts himself as an anti-establishment voice and specialises in ill-informed invective against any who dare prick the bubble of Brexiter fantasy. His repeated baiting of Bank of England Governor Mark Carney – about the only person to keep the UK economy on the road since the referendum – is noteworthy both for its nastiness and for its ineffectiveness. Carney, a sophisticated and highly intelligent technocrat, is well able to look after himself and his critics were humiliated by having to beg him to extend his term of office, knowing that his departure would cause a further collapse of the pound.

The Rees-Mogg versus Carney mismatch is a microcosm of a much more serious problem. For it cannot be said often enough or forcefully enough how dangerous the current situation is. Just about every person who is competent to make a judgment knows that Brexit will be a disaster – a disaster that is already happening – and that a soft Brexit is the least-worst way of enacting the letter of the Referendum decision. But there is no political mechanism to enforce that judgment. The entire future of the UK is now being held to ransom by a small group of Conservative MPs, such as Rees-Mogg, who are completely detached from reality and who will not allow anything other than the hardest of Brexits to occur. Meanwhile UKIP, under its new leader, is, as I predicted in a previous post advancing the even more insane idea of leaving the EU without triggering A50 at all.

I have just returned from France where, understandably, most political conversation is concerned with the forthcoming Presidential election there. But there is also plenty of interest in Brexit and the overwhelming sense is one of bemusement; bemusement about the referendum decision itself, and about the UK government’s lack of clarity about what it wants. But more than that an amazement that Britain, which is seen in France, as in many other countries, as a bastion of pragmatism and political stability should have become, as one person put it to me ‘completely crazy’. It’s a truism that if you hear your country criticized when abroad you instinctively defend it, whatever your own reservations may be. It is a mark of how desperate the current situation is that I felt neither inclined nor able to offer any defence.

Victims of their victory

A report in today’s Observer suggests that the EU will “force Britain into hard Brexit”. Under the headline, it is clear that this is nonsense. What is being said is that if the UK does not seek soft Brexit – meaning single market membership – then hard Brexit is the only alternative. The idea, persistently floated by Brexiters and the British government, that somehow the UK could be in the single market but exempt from freedom of movement of people and from ECJ jurisdiction is nonsense. There is nothing new in that, and it was explained repeatedly by EU leaders and remain campaigners during the campaign.

The Observer is a pro-remain paper but, predictably, its report is being taken up by the Brexit press as if it were an outrageous piece of bullying by the EU. That notion is likely to gain considerable traction in the coming months, the narrative being that all would have been well with Brexit had it not been for EU. It is a strange narrative, because just yesterday it was reported that a group of Conservative MPs, including leading Leave campaigner Michael Gove, have written to the Prime Minister urging her to a hard Brexit. So why would they complain if the EU wants to give them what they want? It is a similar breakdown in logic to that which leads them to be furious that, having campaigned for the sovereignty of the British Parliament, it is an outrage that the High Court has ruled that decisions must be made by ... the sovereign British Parliament!

The idea that the Brexiters have been betrayed when their unrealistic promises encounter the reality of their victory is also evident in emerging claims that the complexity of Brexit is a remainer plot. Gove, again, has been first in the starting gate here, arguing that civil servants were over-complicating the process and that but for that a “quickie divorce” would be possible. There is an overwhelming consensus amongst all those with any knowledge at all of the issues involved – the Institute for Government being a prominent example - that this is not true.

The key point here is that the core of the Brexit movement is a narrative of self-pitying victimhood, in which Brexiters are the down-trodden victims of ‘the establishment’ and ‘the elite’. Now that they have won the referendum and are in a position to implement Brexit they find themselves completely unequipped to deal with the realities of what it means and are casting about for ways to return to their preferred ‘victim’ role.

News round-up

With so much happening – and not happening – around Brexit, it is hard to keep up with developments and certainly beyond my ability to post about each and every one. So in today’s post I will provide a round-up of some of the more interesting and important articles, news items and opinion polls I have read in the last few days.

Much attention is focussing on the emerging realities and complexities of undertaking Brexit, given added emphasis by the leaked memo from consulting firm Deloitte about the lack of an exit plan and the chaos within the civil service in seeking to develop one. Although dismissed by the government, the memo seems consistent with The House of Commons Library’s briefing on the “legal, constitutional and financial unknowns” of Brexit, published last week.

The theme of constitutional and civil service chaos is taken up by Anand Menon on KCL’s UK in a Changing Europe site. The LSE Brexit blog carries a good post on the “legal and political headaches” involved whilst on the New Europeans site Charles Freeman has an excellent essay on the Brexit emperor’s lack of clothes, a metaphor also deployed by Rafael Behr in an article in the Guardian to point out the government’s lack of a Brexit strategy. Bloomberg is also carrying a withering assessment of the chaos and an IPSOS/Mori poll for the Evening Standard shows that 48% of the public think that the government are handling Brexit badly (though presumably for various different reasons).

In a sign that the Labour Party are beginning to develop a potent line of attack against the government, Jeremy Corbyn used today’s PMQs to quiz the Prime Minister effectively on what its approach would be, a line also pursued by the SNP leader in Westminster. Teresa May’s response got no further than to say that she would “seek the best possible deal” for Britain. One reason why this is a difficult line (or non-line) to hold is that her ministers are far from shy in being more explicit than May is prepared to be. Most notable this week was Foreign Secretary Boris Johnson’s statement that the UK would “probably leave the customs union” (although, apparently, also staying in the single market and having restrictions on free movement of people).

Indeed, public and political debate is still going around in circles over the issue of trade versus immigration, partly because of the continuing lack of understanding of the difference between single market access and single market membership. Thus a poll today from NatCen Social Research shows that the public generally support “free trade” with the EU but also limits on EU migration, a combination that EU leaders, most recently Carlo Calenda, the Italian Economic Development Minister, have repeatedly said is impossible. Calenda also described as “insulting” Boris Johnson repeating to him (a version of) the evergreen Brexit meme that EU exports (in this case of Prosecco, rather than the more usual ‘German cars’) must mean that the UK will get a good deal. It seems almost unbelievable that the British Foreign Secretary is still parroting these kind of nonsenses despite, presumably, having received detailed briefings from his civil servants.

In this context a statement yesterday by Angela Merkel that free movement may be negotiable was seized on as a sign of a significant shift, but as this New Statesman piece makes clear this was not a proposal for a special deal for the UK, or an abandonment of the free movement principle; rather an indication of some possible EU-wide changes around benefits eligibility. It is not entirely insignificant, though. I continue to think that a soft Brexit on this kind of basis could be fudged and, with skilful political leadership, sold to the British people. Back on the KCL site, a version of this based on the kind of association agreement that Ukraine has with the EU is mooted in an interesting article by Andrew Duff.

Within all this uncertainty, one ray of hope for those of us who view with alarm the loss of our EU citizenship: a proposal has been made to the European Parliament that citizens of member states leaving the EU be eligible to apply for associate citizenship of the EU, allowing continued free movement. How likely it is to come to anything I don’t know, but it is interesting not least because I suspect that for many ‘remainers’ it would do much to sweeten the Brexit pill, and could therefore make it easier politically for the UK government to enact a hard Brexit. Interesting, too, but also depressing to see the furious reaction to this proposal from Brexiters who decided that it meant that only those who voted ‘remain’ would have access to this, were it to happen. Interesting, because why should those who want nothing to do with the EU complain about being excluded from the rights associated with being in the EU? Depressing because of course the proposal does not discriminate (and would have no way of discriminating) between leave and remain voters: even in their moment of supposed triumph, Brexiters continue to lie. Oxford Dictionaries have today announced their word of the year: it is “post-truth”.

Is Article 50 reversible?

It is being reported that the government are considering a change in the arguments they will make in their appeal to the Supreme Court to overturn the High Court ruling that parliament must vote on the triggering of Lisbon Article 50. The reported change sounds highly technical but it has potentially far-reaching implications.

At the High Court case, both sides accepted as common ground that, once triggered, Article 50 was irreversible. This was very significant, because if that was so then, the High Court ruled, it would inevitably lead to the repeal of the 1972 European Communities Act. Since only parliament can revoke that which it has done, then only parliament could authorise that which would inevitably lead to that outcome. It is now being reported that the government is considering not accepting this is as common ground, and instead arguing that the Article 50 process is reversible, and that it would subsequently be possible not to go through with leaving the EU. If so, this would undercut one of the main reasons for the High Court ruling and might allow the government to win its appeal.

If this is indeed what the government end up arguing, it will have several consequences. First and foremost, it makes it likely that the Supreme Court will seek advice from the European Court of Justice (ECJ), not to make a judgment about this case (the ECJ has no jurisdiction to do so) but about whether on a point of EU Law Article 50 is or is not reversible. The Supreme Court could ask the ECJ this question even if both parties still accepted it as common ground that A50 was irreversible (as could the High Court have done, had it wished). But it becomes much more likely that they will do so is it is not accepted as common ground (although it is in their power to take their own view on reversibility that might lead to subsequent problems and even legal action if it turned out not to be true once A50 was invoked).

If the Supreme Court does ask the ECJ for advice it will certainly lead to outrage from Brexiters, who will regard it as interference in UK affairs (even though, as noted, it would not be an ECJ ruling, just clarification of the EU process which, after all, has to be followed if the Brexiters wish to leave the EU). It would also make it highly unlikely that the government’s timetable for triggering A50 by the end of March 2017 would be possible, because the ECJ would take some time to give its advice and until it did the Supreme Court could not give its ruling. This in turn would make it unlikely that the A50 process would be completed before the next scheduled General Election or before the next European Parliamentary elections.

If, after all this, the government won its appeal on these grounds, then it would have a big impact upon the politics that would follow. If they had won on the grounds of the reversibility of the A50 process, then it would make viable the proposals from LibDem and other parliamentarians for a second referendum on the terms of exit. At the moment, as I have argued in another post, this idea makes no sense because if A50 is not reversible then what would be the alternative on the ballot paper to accepting whatever the negotiated exit terms were? But if it has been established that A50 is reversible, then the question could be to accept those exit terms or to simply stay in the EU.

There is good logic to the idea of a second referendum in that form, because whilst the June vote was to leave the EU, it was not a vote for the terms of leaving. A recent opinion poll shows that only 33% of voters would vote to leave the EU on any terms; for the others, the issue would be what the terms on offer were. Personally, I am not sure whether such a referendum would be wise (the experience of the last one does not suggest that the campaign would address the real issues) and a parliamentary vote might be preferable. However, the latter course would also carry grave risks.

At all events, if the government do proceed in this way at the Supreme Court and if they win their appeal on that basis it will open up many new issues and potential delays in, if not the scuppering of, Brexit. There are so many ironies here. It is an irony that Brexiters, who asserted the centrality or parliamentary sovereignty as a key reason to leave the EU, should even be trying to get legal permission to circumvent it. It will be doubly ironic if in order to achieve this they open up the possibility that, even if they get to trigger A50, they might end up not proceeding all the way to the exit door. Finally, it may be noted that, even if none of this happens, it is becoming less and less clear where that exit door is: it is beginning to be mooted that the UK will need to seek an interim deal after the end of the two year A50 process in order to avoid the chaos that would ensue from the fact that this time period will not be sufficient to complete the negotiations.

What might Trump's election mean for Brexit?

There are obviously many connections between Trump’s victory and the Brexit vote, some of which I have already written about and which I will not discuss here. Instead, I want to outline some preliminary thoughts about how the result might impact on Brexit. That is difficult, because Trump is an unpredictable figure, and little credence can be attached to his various statements.

One immediate issue may be the sterling-dollar exchange rate, although so far it seems as if any flight from the dollar is affecting the yen more than the pound, which recorded only a slight uptick today. This actually reflects the ongoing bad news of Brexit: sterling is not seen as a ‘safe haven’ currency any more. Still, the coming weeks may see some gains for the pound against the dollar and that would have some impact on post-Brexit inflation, especially as oil is priced in dollars.

The wider implication may be to make a UK-US trade deal more likely, as excited Brexiters are already proclaiming. Trump presumably spells the end of TTIP, and in his campaign he made noises about a willingness to sign a deal with the UK, and indicated an approval of Brexit, to the extent of referring to himself as ‘Mr Brexit’ and repeatedly drawing comparisons between his campaign and Brexit. However, he has also signalled a strong desire to only do deals which are ‘good for America’. Given that the UK will be desperate to sign a deal, any deal, one can only anticipate that any UK-USA FTA would be heavily loaded against the UK. In any case, no FTA could be created until the UK has left the EU, and even then only in certain circumstances, depending on the terms of Brexit.

At the same time, we can expect deteriorating relations between the US and the EU, both as regards TTIP and more widely. The UK government might think that this could re-ignite the ‘special relationship’, although there are significant foreign policy differences over Syria, Iran and, especially, Russia. Indeed, the most significant issue is likely to be NATO and its response to Russia. Trump has indicated a lack of enthusiasm for NATO and especially for members who do not spend 2% of GDP on defence. Key here are the Baltic States, where only Estonia meets the 2% criteria.

There is some complex and very dangerous geo-political territory here. It is not inconceivable that Trump’s election will embolden Russian military incursions into Ukraine and soft power incursions into the Balkans. It’s no accident that the Russian Parliament applauded the result. The nightmare scenario is military action in the Baltic States (or, if not military, then political and economic). Brexit exacerbates these dangers because it also contributes to the weakening of the US-EU-NATO nexus and, more generally, the post-war international order. But this also creates the possibility of an international crisis so severe that the UK government might seek (more or less willingly) to defer, or even abandon, Brexit. That, of course, would be an extremely dangerous situation and any ‘gain’ as regards Brexit would be more than offset by the calamity it would involve. So it is not that I am hoping for such a situation, just saying that because Trump’s election throws the geo-political chips in the air, the way that they settle may have an impact on Brexit.

On a lighter note, the report that Nigel Farage might be appointed by Trump as the US Ambassador to the EU was, I think, a joke (one can only hope so; though in this strange world who can say). That is about the only joke I can see in the present situation. With the UK and, now, the US having embarked on an unpredictable course of national populism – and the possibility of other countries doing the same – both those countries and the free world have entered a period of confusion and danger unprecedented in my lifetime.

Let's all take a deep breath

When Britain voted to leave the EU I thought it was a catastrophe. I still do, but things are turning out even worse than I feared, to the point that I think we are now entering a very dangerous situation.

One might have thought that with the vote having been very close, and won on the basis of claims, such as the £350M a week for the NHS, that were disowned within hours of the result, that an apparently pragmatist politician like Theresa May would have sought to find a common ground way forward. That would have meant, perhaps, a pause to look at options, then a relatively soft Brexit plan that could be just about acceptable to elements of both remain and leave. Instead, she opted to at least signal a hard Brexit, and poured scorn on anyone wanting to question that as trying to undermine democracy.

It may be that May thought that, having been a (lukewarm) remainer, she had to do this in order to run her party, and that by coming out hard on Brexit she could hold that party together. If so, she has made the same miscalculation that David Cameron made: her Eurosceptic MPs will always ask for more, whatever they are given. So she has implied that she wants to leave the single market and they have pushed her to leave the customs union; said she wants to invoke Article 50 and they have pushed her to unilaterally abolish the 1972 European Communities Act. As with the Referendum itself, attempts to manage the Tory Party’s extremists are dragging the whole country towards their extreme positions.

It is crucial to recall that the Leave campaign never specified a form that leaving would take. Some wanted a Norway model (meaning European Economic Area membership), some a Switzerland model (meaning EFTA but not EEA), some a Canada model (meaning an FTA with the EU), some a Turkey model (meaning outside the single market but inside the customs union), some a WTO model, some an Albanian model, and some a Liechtenstein model! So the vote to leave the EU was never a vote for any particular alternative. Yet the government, and the Brexiters, are now insisting that it gave a mandate for some kind of hard Brexit – though even the form of that they cannot agree on (Turkey, Albania, Canada, WTO are still in the frame; Norway, Switzerland and Liechtenstein apparently not).

All of that is chaotic, and highly damaging to the UK economy, as can be read from the value of the pound that falls whenever a hard Brexit looks more likely and rises when a soft Brexit seems more likely. What is not just chaotic but dangerous is the populist rhetoric around this. Given that the Leave campaign chose not to define what leave meant, it was inevitable that this would have to be decided by parliament. May tried to avoid this, but the High Court judgment confirming that it must be so led to perhaps the single most disgusting headline in British newspaper history: the Daily Mail’s ‘Enemies of the People’ (the other candidate for the title being the Mail’s ‘Hurrah for the Blackshirts’ support for the British Union of Fascists in 1934).

It is important to understand the resonance of the term ‘Enemies of the People’. It was used in Nazi Germany (Volksverräter) and the Soviet Union (vrag naroda), and so to see it used in a British newspaper is truly shocking. It cannot be dismissed, as some commentators have tried to, as being just the same as when papers criticise what they see as over-lenient criminal sentences. It is not an attack on the judgement, but on the institution of law. And what provoked it was not – as might be thought – a ruling that negated the Referendum vote, but one that simply upheld the longstanding principle of parliamentary sovereignty; the principle that Brexiters made central to the Leave campaign.

So we now have a situation where a narrow vote to leave the EU on terms unspecified is being translated into some mythical ‘will of the people’ for hard Brexit. We know that only 37% of the electorate voted to leave the EU, and we know that they did so for all sorts of reasons, and we know that on current opinion polls they would not do so now. There is no ‘will of the people’ for hard Brexit; there may not even be a will for Brexit at all.

But that is not the worst of it. Nigel Farage, the ‘interim’ leader of UKIP is now implicitly condoning, if not encouraging, street violence if his supporters don’t get a hard Brexit. We all, whether remainers or leavers, have to stand up now and condemn this. The referendum did not suspend the constitution or the rule of law. It does not give a licence to attack judges; it does not give a licence to threaten to gang rape people we disagree with; it does not give a licence to spit on schoolchildren; it does not give a licence to beat up and murder immigrants. I know very well that almost no one who voted to leave the EU condones any of these things. But they are being done in your name.

Whether or not we are in the EU is an important question, about which there are strong feelings on both sides. I have strong feelings about it. But we must not rip up our civility, our constitution or our law in the process. Important as it is, membership or otherwise of the EU is not that important. Let’s all take a deep breath.

Is there an alternative to Article 50?

With the High Court ruling (if upheld) having made it clear that parliamentary approval is needed to trigger Article 50, attention is now likely to shift to the possibility that there are other routes to leaving the EU. A pervasive meme amongst Brexiters has been that the UK could simply shortcut A50 and unilaterally repeal the 1972 European Communities Act. This idea has been adopted by UKIP leadership candidate Suzanne Evans, who recently said:

“Article 50 is not the way to go. That is an EU construct. The best way to do it in my view is to repeal the 1972 European Communities Act as soon as possible”

This course of action has also been recommended by long-time Tory Eurosceptic John Redwood.

Whilst this option was not explicitly considered by the High Court (which considered the repeal of the 1972 Act at the end of the Lisbon A50 process, rather than before and instead of that process), its ruling directly impinges upon it in that only parliament could repeal the 1972 Act. But would it, in any case, be a good idea? The EU Law expert Professor Steve Peers explains that:

“[P]olitically and economically speaking, this option is insane. It would leave many practical details of withdrawing from the EU unresolved, such as payments of EU funds to UK recipients. Even if the UK could revert its membership of the EEA, that would only govern the trade arrangements with the EU, not issues outside the scope of the EEA. For instance, it would immediately end the UK’s involvement in the European Arrest Warrant (EAW). Unless we had negotiated a transitional and/or replacement arrangement – which is obviously the point of having the two-year period set out in Article 50 – defence lawyers would argue that any EAWs which the UK had issued to other Member States, and any EAWs issued by other Member States which the UK was seeking to execute, were invalid. That would mean that no fugitives could be arrested or detained on the basis of those invalid EAWs, and those already detained would have to be released. More broadly, such a ‘unilateral declaration of independence’ would destroy the UK’s credibility as a negotiating partner with the remaining EU, and indeed with anyone else, given the clear contempt that it would display for the legal rules which the UK had previously accepted. It would be a long time before the UK could plausibly claim again that it had a record of ‘fair play’ in international negotiations.”

The impetus to ‘just do it’ will doubtless resonate with many Leave voters – I recently heard a voxpop where someone thought that we had already left the EU - but as with so much in the current situation the complex realities don’t fit with the populist simplicities.

The implications of the High Court ruling

Yesterday’s High Court ruling is the biggest event since the Referendum, and opens up a huge and complicated set of issues and possibilities. In brief, the ruling is that it would not be constitutional for the government to invoke Article 50 without the consent of parliament*, a ruling consistent with centuries of precedent within Britain’s ‘unwritten constitution’. In principle this means that parliament could refuse to give its consent – and the majority of MPs wanted to remain in the EU – but in practice this is highly unlikely given the Referendum result. Remainer MPs in constituencies which voted leave will be wary of defying their electors; although the same could be true of Brexiter MPs in constituencies that voted leave (the Richmond by-election may show this). And with the latest opinion poll showing a narrow preference to stay in the EU, perhaps sentiment is shifting amongst the electorate anyway.

However what it is more likely to mean that MPs have a chance to shape what form Brexit will take, with questions of hard or soft Brexit being at the fore. That will cut both ways, in that hard Brexiters will have the opportunity to seek to bind the government to the very hardest form of Brexit (e.g. no attempts at even sectoral access to the single market, exit from the customs union) quite as much as Remainers and soft Brexiters will have the opportunity to seek to ensure single market membership or even – most obviously from SNP MPs – to seek to remain in the EU. It will become crucial for Labour to develop a coherent position, which they have so far failed to do. And, whatever happens in the Commons, the House of Lords, which has an anti-Brexit majority, will also be in a position to influence Brexit.

Of course there are other possibilities, too. The government’s appeal to the Supreme Court may result in the High Court’s ruling being overturned. Then we are back to the status quo ante, although in a fast moving situation there may be no such thing as that. Or (perhaps especially if the appeal fails) there may be a General Election, the results of which will be very unpredictable. The Conservatives would have to spell out what Brexit meant, if they were to seek a mandate through the election for that stance, and that would expose the significant rifts within the party. UKIP might become a significant force (and what’s the betting that Nigel Farage decides, yet again, to stay on as its leader?). And the LibDems might be able to capitalise on the remainer vote to gain what could be a decisive influence in the parliament that would follow. At all events, it seems increasingly unlikely that the government will be able to continue to try to define what Brexit means without telling the public what they have in mind.

The reaction of Brexiters to the ruling has been truly hysterical, with it being described as ‘betrayal’, the ‘death of democracy’ and “an attempted coup”, and the person who brought the action has been subjected to death and rape threats. The Daily Mail, quite disgustingly even by its standards, described the High Court judges as “enemies of the people”. It is deeply unattractive, to say the least, and shows how even in victory the Brexiters glory in a victim mentality. But it is also ironic, since the cornerstone of the Leave campaign was to restore ‘sovereignty’ to the British parliament and judiciary. So it is extraordinary that the proposition that parliament should make decisions is seen as an affront to democracy; and dangerous populism to posit that 52% of those who voted – thus, 37% of the electorate – as ‘the will of the people’ and exempt from the rule of law or the workings of the constitution.

But of course what all this anger really derives from is the complete failure of those who want to leave the EU to specify either what they want as an alternative or to plan the process for exit. On the former, the refusal, in particular, to agree on whether voting leave meant voting to leave the single market or not is what has opened up the whole soft versus hard Brexit debate. On the latter, both the Leave campaign and May’s government have shown themselves to have no grasp at all of either constitutional law or political realities by trying to arrogate to themselves decisions about what form Brexit will take.

As I observed in my October 13 post:

The UK is an old and complex democracy, whereas referenda are unsubtle and, within the UK, very recent political instruments. Whilst Brexiters want to claim that the narrow vote of June 23 is some unanswerable and inviolable democratic truth, they may be about to find that – as with so much else that they believe – reality is not so straightforward.

That seems to be coming true. It is very far from clear where the High Court ruling will take us. What is clear is that it has thrown numerous chips up into the air. Where they will land is impossible to predict. Political and legal chaos can be added to the growing price tag of the Referendum vote.

*The full ruling is long and very technical, but the core issues as I (a non-lawyer) understand them are as follows: leaving the EU would entail the repeal of the 1972 European Communities Act, a matter which would affect UK law and can therefore only be decided by Parliament, not by ‘Royal Prerogative’ (i.e. executive action on behalf of the Crown). The invocation of Lisbon Article 50 requires that it be triggered in line with the constitutional requirements of the member state, and once invoked it cannot be rescinded. Therefore, to invoke the A50 constitutionally requires the assent of Parliament because its inevitable consequence would be the repeal of the 1972 Act.