It’s probably
a fair bet that few of us thought much about – if we had even heard of –
Article 50 of the Lisbon Treaty until recent months. Now, just as that is
becoming part of every news story, we need to give attention to Article 127.
This is not (as is sometimes being misreported) an article within the Lisbon
Treaty, but rather within the European Economic Area (EEA) Agreement of 1992,
to which the UK was a signatory. The significance of this is that as such, it
may be that the UK remains a member of the EEA – which means the single market –
even if it leaves the EU after invoking Lisbon A50. This is because to leave
the EEA arguably requires invoking A127 of the EEA Agreement. Whether or not
this is so is to be the subject of a judicial review in a case being brought
to the High Court by campaigners to stay in the single market.
The complex legal
issues at stake are discussed
in Professor Steve Peers’ ever-useful EU Law Blog, and I will not repeat
what he says (and am not competent to add to it). The political consequences if
it were upheld that A127 also needs to be invoked would be interesting. At one
level, this could simply be done in the same way as with A50 – by the
government, with or without parliamentary authority (depending on the outcome
of the Supreme Court case). But the dynamics might be very different.
The
Referendum asked about EU membership, so the result makes it difficult for Remain
MPs to withhold consent to triggering A50. However, nothing was asked about
leaving the EEA, so withholding consent to trigger A127 would be politically
easier. This is a version of the point I’ve repeatedly made on this blog, namely
that the referendum did not mandate hard Brexit; but it gives an important
legal ballast to that argument, since it would mean that a specific legal
process (A127) must be followed for hard Brexit to occur.
Of course
all this may be rendered irrelevant if the judicial review does not uphold the
argument that A127 must be invoked in addition to A50 in order to leave the
single market; or, equally, it could be irrelevant if the government decide for
a soft Brexit of their own accord (on which, we are no further forward than
when I last posted).
Inevitably
this latest case has outraged Brexit politicians and press, but they are going
to have to get used to the fact that the Referendum was not the end but the
beginning of a very long and complicated set of political and legal processes.
That is a consequence of voting leave, and if those who did so don’t like it
they should have listened to the many warnings – dismissed as ‘project Fear’ –
that this would be so. In a similar way, the call today from Gisela
Stuart, the Labour MP who was a leader of the official Leave campaign, to
guarantee the rights of EU citizens in the UK and vice versa prompts an obvious
thought. She should have thought about what it would mean for those affected
before she lent her weight to the ferociously anti-immigration campaign.
The Leave
campaign - as they delight in telling us - won, and now they must take responsibility for all of the consequences and
for delivering Brexit. They are no longer a campaign against ‘the ruling elite’;
they are the ruling elite. So they will be held to account both for the
promises they made, including the £350 million a week for the NHS which
they now disown, and for their lack of planning for what the process and
outcome of leaving the EU would consist of. So, as in the present case, they
can hardly complain that the courts must decide on whether A127 is relevant:
they should have worked out what needed to be done to leave the single market
as well as the EU before they recommended that people vote for them. On which
subject, there is a pervasive attempt amongst Brexiters to claim, now, that
they had always made it clear that a vote to leave the EU was also a vote to
leave the single market. As this instructive video shows, they did not. So just as they are trying to re-write history by dropping the £350M slogan, they are inventing claims they did not make.
The surprise
LibDem
victory in the Richmond Park by-election yesterday could have considerable significance.
Winning on a strongly anti-Brexit platform, it opens the possibility that the
LibDems could make further gains in some areas. It also tells us that ‘remain’
voters cannot simply be ignored.
Much
attention has focussed on the possibility that pro-Brexit MPs (especially
Labour) might
be vulnerable, especially to UKIP, in constituencies that voted to leave
the EU. I am not entirely convinced by that because voting patterns in the
referendum were different to those in parliamentary elections in that many who
voted leave do not normally vote at all. In any case, about two-thirds of
habitual Labour voters voted remain, so the idea that Labour’s core vote is
capturable by UKIP is unlikely. Nevertheless, there are important issues for
Labour in all this: are they going to be an anti-Brexit party or not? If not,
they will lose out in their London heartlands; if so, they will have to
struggle with UKIP in their Northern heartlands. My feeling is that the Brexit
vote in combination with Corbyn’s agnosticism on the EU means that Labour are
finished as a political party.
However that
may be, the neglected issue is what remain voters now do. With Brexit now being
the dominant political issue and voter cleavage predictions are difficult. From
Richmond, it seems that the one third or so of voters who are habitually Tories
but who voted remain might be willing to support the LibDems, as, in certain
constituencies, might be Labour Remainers. So although the national opinion polls show the
LibDems at something like 8-10% in places like Richmond where the remain vote
was high the picture could be different. That would be relevant in several
parts of London, as well as Cambridge, Oxford, Bristol, Exeter etc. and could
translate into several seats at a future General Election.
Regardless
of electoral arithmetic, Richmond is important in another way. It’s a reminder
that the country is bitterly split on Brexit, and that there is no mandate at
all for a hard Brexit (it appears that many
Tory Leave voters supported the LibDems
in Richmond). If the government try to force a hard Brexit in order to
appease one (minority) group of their backbenchers, there will be an electoral
price to pay. Equally, or more, significant the traditional financers and
supporters of the Tory Party in business and the City will strongly oppose it.
Underneath
all this there is a harsh and controversial truth – controversial, that is,
within the prevailing discourse that the Brexit vote was ‘the will of the
people’. Because the demographics
of the vote show very clearly that those who voted Brexit were more likely
to be economically inactive and/or in lower social classes. Now of course everyone’s
vote is worth the same – but is a Tory (or any) government really going to
prioritise the wishes of the demographic that voted leave over the professional
and corporate middle class? At the end of the day, like it or not, pensioners
in Lowestoft are not going to be the cultural or economic future of the UK;
young pan-European teams of scientists spinning businesses out of Cambridge
University are. So although everyone’s vote rightly counts for the same in a
referendum, there has to be a realism beyond that piety, at least for any
half-way sensible government.
That ‘realeconomic’
has its counterpart in the realpolitik of what kind of Brexit can be achieved,
and in the last couple of days there have been signals from the British
government that a
soft Brexit is in prospect. I don’t attach much meaning to that, because
the government are sending out so many contradictory messages. Even so, some
kind of EEA
deal would seem to be the most obvious way out of this situation, both as
regards negotiations with the EU and also as regards the British electorate.
That is to say, about half of the country don’t want to the leave the EU but almost
all of them could probably just about be satisfied with EEA membership; just
about half the country want to leave the EU and some of them would be happy
with EEA membership. So, if we are really concerned about the ‘will of the
people’ then EEA membership is probably about the best way forward. And in a
way it would, actually, reflect where the UK has always been, ever since
accession in 1972: a kind of semi-detached member of the EU.
