Cameron’s Legacy

David Cameron was quick to run away from any responsibility, even as an ordinary MP, for sorting out the mess which he created by holding the EU referendum. His culpability lies not just with the fact that he chose to hold the referendum. The referendum was fundamentally flawed in that it did not ask whether the UK should seek to retain its membership of the single market in the event of Brexit. Leaving the single market is arguably a much greater change than leaving the EU itself, with potentially serious consequences for the UK economy, but there was no reference to this on the ballot paper. People who voted Leave were voting for an option which was not adequately defined.

A soft Brexit (i.e. the Norwegian model) is not a particularly sensible option. Many people who voted Leave would be opposed to it because it would not allow the UK to limit the number of EU citizens coming to the UK to live and to work, and because the UK would still have to follow many of the EU’s laws and regulations. Most people who voted Remain would be dissatisfied with it, although they might well prefer it to a hard Brexit, as it would almost certainly be more expensive overall than full EU membership, and the UK would have lost any input into decisions taken by the EU. It would be an compromise which would not really satisfy anyone.

There is no guarantee that a soft Brexit would be possible, even if the UK government were to try to achieve this. Perhaps membership of the single market after Brexit would require the UK to rejoin the European Free Trade Area. The UK has more than four times the population of all the current EFTA members; given the UK’s record of awkwardness in the EU, I suspect that the current EFTA members might not let the UK join them. Any deal between the EU and the UK must be agreed by all the other EU members; any EU member state could veto it. For example, it may be that Spain will demand concessions on the sovereignty of Gibraltar as its price for consent to a post-Brexit deal – would the UK government be willing (or able, in the present political climate) to make those concessions?

There is also the theoretical possibility of what one might call a firm Brexit, in which the UK would negotiate a series of trade deals (similar to those between Switzerland and the EU) which would give partial access to the single market while perhaps allowing the UK to restrict immigration from the EU. However, I have read that the EU has little inclination to go down that road, because of the effort involved in working out a whole new set of individual trade deals. In any case, the risk that any such deals will eventually be vetoed by at least one EU member is high.

A hard Brexit cannot be vetoed, as it is the default case which will happen if no exit agreement is reached within two years of the UK formally notifying the EU of its intention to leave. Therein lies a trap, should the UK try for a soft or firm Brexit. The EU will not start negotiations until the UK has handed in its notice, but once this is done, there is no way back for the UK without the consent of all 27 of the other EU member states. Once the UK starts the Brexit process, Brexit becomes virtually unavoidable even if the UK government cannot get an acceptable deal.

It now looks as though a hard Brexit is what the government is aiming at, perhaps with an eye on UKIP. Nevertheless, the possibility of adopting the Norwegian model (which was discussed during the referendum campaign) means that leaving the EU does not make leaving the single market inevitable, and therefore one cannot say that a vote for Leave was neccessarily a vote to leave the single market. Hence the UK government does not have an explicit electoral mandate to take the UK out of the single market. It would have had an implied mandate if the Leave campaign had consistently argued for a hard Brexit, but its leaders mostly chose to evade the question of what version of Brexit they wanted or expected. They also seemed to have an overly optimistic view of the UK’s ability to secure a favourable deal, ignoring the fact that EU leaders cannot afford to let the UK appear to benefit from Brexit if they are to discourage anti-EU movements in other member states.

Supporters of Brexit argue that the result of the EU referendum must be honoured, and that for the UK government not to initiate Brexit would be a denial of democracy. However, I would suggest that taking the UK out of the single market without a clear mandate to do so would also be undemocratic. I wonder what the result would be if a new referendum were to be held in which the voters were asked to choose between the status quo and a hard Brexit. I also wonder why I have not seen the results of any opinion polls which have asked that question.

There may be a way out of this mess. Incompetent (or over confident) Cameron’s bill setting up the EU referendum did not include any authorisation for the Prime Minister to initiate Brexit following a Leave vote. As a result, there is a legal case pending, in which it will be argued that using the royal prerogative to start the Brexit process, as May has said she will do, would be contrary to the Bill of Rights. If this view is upheld by the courts, then the decision to invoke Article 50 of the Treaty of Lisbon will have to be taken Parliament, but a majority of MPs are said to be against Brexit and might reject it. Could May, who campaigned (albeit feebly) for Remain, be hoping for such an outcome? Is that a reason why invoking Article 50 has been delayed so much?

We live in interesting times – but not in a particularly good way.