Brexit is Hardly a Done Deal

♠ Posted by Emmanuel in at 6/28/2016 04:10:00 PM
Cheer up, young people: Isolationist oldsters may not have destroyed your future yet.
For all the market carnage, political upheaval, widespread racial abuse and other things most regrettable brought by the UK referendum result concerning membership in the European Union, keep this in mind: There is still a long process to go were it to leave. On the balance, you could even make a convincing argument that the UK is more likely to stay in. Why? Let me try to explain as concisely as possible. Although there are many ways to prevent the UK from filing its [Lisbon Treaty] Article 50 request to begin the process of separating from the EU, the most likely ones are as follows:

Scenario 1: UK parliament approval is deemed necessary to start EU departure talks. With the House of Commons far more in favor of remaining, the eventual result will be to stay.
Scenario 2:  A second referendum is held, by which time the UK economy has deteriorated enough to switch many who voted "Leave" to "Remain" to avoid further economic damage to themselves.
Scenario 3: Parliaments of Scotland or Northern Ireland do not consent to dissolving EU Articles of Agreement, effectively "vetoing" the referendum result
Scenario 1: would play out this way according to some legal experts: It is constitutionally unavoidable for the UK to leave without parliamentary consent based on the text of the now-infamous Article 50. With parliament as a whole far more in favor of the status quo [1, 2] than the general public, the UK stays in. The time it will take to secure a parliamentary vote will likely see the UK economy deteriorate further, making MPs more convinced that staying is the economically sensible move:
Parliament must still vote on a bill to allow the UK to leave the European Union, leading lawyers have said. Geoffrey Robertson QC, who founded the Doughty Street Chambers, said the act which set up the referendum said "nothing" about its impact, meaning it was "purely advisory".
A new bill to repeal the 1972 European Communities Act that took Britain into the EU must now be passed by parliament, he said, adding that MPs might not be able to vote until November when the economic effects of Brexit will be clearer.
"Under our constitution, speaking as a constitutional lawyer, sovereignty rests in what we call the Queen in parliament," he told The Independent. "It's the right of MPs alone to make or break laws, and the peers to block them. So there's no force whatsoever in the referendum result. It's entirely for MPs to decide.
The requirements for starting the process are, again, actually more complex than sending a notification to Brussels:
Mr Robertson said there had been "a lot of stupid statements" suggesting Britain could simply send a note to the EU to trigger "Article 50" of the Lisbon Treaty, which lays out the process under which states can leave. The article itself says a state can only leave in accordance with "its own constitutional requirements".

"Our most fundamental constitutional requirement is that the decision must be taken by parliament. It will require a bill," he said. "In November, the situation may have totally changed. According to polls, a million vote leavers appear to have changed their mind, that could be five million by the November." In a letter to The Times, another leading QC, Charles Flint, of Blackstone Chambers, also stressed that British law required MPs to vote before Brexit could happen.
Geoffrey Robertson fills in more details in a Guardian contribution. Of course, it is possible that elections will be called again before the House of Commons has the opportunity to vote and its membership will differ. However, it is difficult to imagine a dramatic turn towards electing far more anti-EU representatives, especially as the warnings of impending Brexit come true as had been predicted. Who would want to make things even worse in the meantime?

Scenario  2: Another possibility is to simply make the UK vote again. Given the history of previous referendums by member countries on the EU, repeating the process results in the status quo being upheld. Gideon Rachman outlines this possibility:
All good dramas involve the suspension of disbelief. So it was with Brexit. I went to bed at 4am on Friday depressed that Britain had voted to leave the EU. The following day my gloom only deepened. But then, belatedly, I realised that I have seen this film before. I know how it ends. And it does not end with the UK leaving Europe.
Any long-term observer of the EU should be familiar with the shock referendum result. In 1992 the Danes voted to reject the Maastricht treaty. The Irish voted to reject both the Nice treaty in 2001 and the Lisbon treaty in 2008.

And what happened in each case? The EU rolled ever onwards. The Danes and the Irish were granted some concessions by their EU partners. They staged a second referendum. And the second time around they voted to accept the treaty. So why, knowing this history, should anyone believe that Britain’s referendum decision is definitive?
Scenario 3: See below as per SNP leader Nicola Sturgeon's voicing this course of action. That for Northern Ireland would unfold along similar lines.
Scotland's First Minister Nicola Sturgeon has told the BBC that Holyrood could try to block the UK's exit from the EU. She was speaking following a referendum on Thursday which saw Britain vote by 52% to 48% to leave Europe. However, in Scotland the picture was different with 62% backing Remain and 38% wanting to go. SNP leader Ms Sturgeon said that "of course" she would ask MSPs to refuse to give their "legislative consent".

Ms Sturgeon, whose party has 63 of the 129 Holyrood seats, said: "The issue you are talking about is would there have to be a legislative consent motion or motions for the legislation that extricates the UK from the European Union? "Looking at it from a logical perspective, I find it hard to believe that there wouldn't be that requirement - I suspect that the UK government will take a very different view on that and we'll have to see where that discussion ends up."
BOTTOM LINE: The longer it takes for the Article 50 process to begin, the more likely it is that the UK stays in the EU. Its economy getting progressively worse will likely sway many who were marginally in favor of leaving that staying is in their best interests. Hence, they will be more wililng to change their votes in a second referendum directly phrased about filing an Article 50 request at the EU. Alternately, if MPs will have discretion over the matter, it is unlikely that they could go against an increasing tide of public opinion in favor of staying since most of the parliamentarians were in favor of doing so to begin with. If elections are held, it is unlikely that a markedly more isolationist parliament would be elected for similar reasons.

Also, what lawmaker would be foolhardy enough to be directly identified with getting the Article 50 process underway when it is likely to (a) generate even more economic turmoil and (b) dismember the United Kingdom? The more time passes, the more "chicken" lawmakers--and perhaps, more importantly, the general public--will get. It was an ill-conceived misadventure from the get-go, and for all of the bluster of the anti-EU side, sacrificing one's economic well-being seldom proceeds when the consequences of doing so become apparent.

Even the misled get real...eventually. Be patient.

UPDATE: Remember, parliament is sovereign. Here's more scenario 1 commentary to the same effect that legislative assent is required -
[A]s a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament.  Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.