“You lost, get over it”, the famous quote from the mouths, or keyboards, of many a Leave voter which is slowly being consigned to the far corners of the internet as the sheer complexity and magnitude of the task at hand that is leaving the European Union comes into focus. Of course, Remain voters have been far from quiet – naturally, the losing side is always the one which shouts louder – with calls that, as we begin to learn what Brexit means beyond ‘Brexit’, may echo down the halls of Westminster. As inconceivable as it may seem, when push comes to shove the people bound by the referendum result more than anyone – the 650 MPs in the House of Commons – may be the very people that turn their back on it.
Before such an idea can be dismissed as nothing more than the thoughts of hopeful and/or naïve Remainers it must reach a stage where such a decision can be decided by parliament. As it stands, Theresa May intends to trigger Article 50 without consent of parliament (a decision hailed by Leave voters which, ironically, shuns democracy as a means of ‘bringing democracy back to the British Isles’), yet a closer look at the relevant legislation suggests that this may not be possible.
“As a matter of the constitutional law of the United Kingdom… the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.”
Jolyon Maugham, a UK based lawyer, notes that these words from Lord Oliver in ‘Rayner (Mincing Lane) v DTI  2 AC 418, 462’ suggest that Article 50 cannot be triggered without the consent of parliament as a royal prerogative would, almost certainly, alter or deprive the rights of individuals.
“The UK’s membership of the EU gives us rights as individuals: to live abroad, healthcare cover on temporary travels, to accrue pension rights working in other Member States, and so on. Parliament has not acted to modify or abrogate those rights. It cannot be right that the Executive can. To say this is to do no more than articulate a specific instance of an important general rule about the limits of Prerogative Power. To ignore it is to put citizens at the mercy of the Government.”
Despite the ‘mandate’ arising from one of the biggest democratic exercises in the UK’s history, parliament is only bound by the result of the referendum politically, they are not legally bound by the result of a purely advisory referendum in any way. Furthermore, this ‘mandate’ only relates to the withdrawal from the European Union, with no comment on what capacity – be that regarding whether it should be a hard or soft Brexit, on immigration, trade, whether the EU budget goes to the NHS, and on and on – all that was decided is that the UK should leave the EU.
However, whilst it is conceivable that such a decision may reach parliament, it seems pretty inconceivable that MPs would vote against the will of the electorate, right? MPs representing constituencies that voted Remain – London, Brighton, the entirety of Scotland, etc. – would probably vote against the 52%, but surely it is madness that those MPs representing the constituencies of the towns and cities which felt they had been left behind by the ever more globalised world and, as such, voted to leave the EU, would do such a thing?
Maybe not, no. Brexit doesn’t mean what Brexit was supposed to mean.
The Leave campaign promised it all, typified by Boris’s clunky, muddled post-referedum speech on the morning of 27 June – membership of the world’s largest customs union, trade with the rest of the world, an end to free movement, no EU budget contributions, etc. we could have it all.
As time passes, however, we’re seeing that big trade-offs are going to have to be made, and that Brexit isn’t nearly as appealing as it was presented to the electorate prior to 23 June.
“Brexit means the UK will become a truly global economy”
Of course, while noting that no negotiations have yet begun, it appears that quite the opposite will occur. Australia, the US, and no doubt a whole host of other countries, have taken the position that they are reluctant to begin trade negotiations until the UK’s relationship with the European Union becomes clear. Remaining in the customs union creates issues as far as immigration and worldwide trade negotiations are concerned (Liam Fox and his department for International Trade are basically out of a job if this ensues) but leaving the union means a whole new set of issues arise.
As the Japanese government – who, unlike the UK, have actually analysed the economic repercussions of Brexit – have recently warned, Brexit will risk the UK’s position as the hotspot for foreign direct investment from non-EU companies seeking access to the world’s largest customs union that is the EU, such as the Nissan factory in Leave Sunderland for instance. Far from becoming the worldwide economic hub, Brexit may result in a loss of this FDI with the unemployment, fall in tax revenue and the fall in worldwide status that accompanies it.
The punchline in this dilemma is that to leave the customs union means the UK will become far more dependent on striking a favourable deal with countries that will, economically, hold us with much less importance. This will be exacerbated by years of uncertainty and will, eventually, take a toll on the economy as we negotiate our new economic relationship with the EU, remember that the EU-Canada trade agreement was launched in 2007; it has still not been ratified.
Brexit was presented as the golden ticket for exporters, and for our current account deficit, yet Nick Clegg – who recently analysed the implications of Brexit for trade alongside Peter Sutherland, the former founding director-general of the World Trade Organisation – has declared that this not the case at all. Only 15% of total UK trade is with countries that are neither members of the EU, nor covered by an EU trade agreement that is either in force or under negotiation which suggests that, for the time being, clearly life is going to be much more difficult for exporters than at present once tariffs are applied which will place UK exporters at a cost disadvantage.
Clegg continues, stating that substituting Britain’s current arrangement for a free-trade agreement will, contrary to what the Leave campaign led the electorate to believe, create a torrent of paperwork for exporters. Exporters will have to put their products through exhaustive customs checks and comply with complex rules of origin to prove where their goods and component parts were manufactured.
To add insult to injury, the UK will have to establish its own schedule of commitments – the tariffs it proposes to levy on imported goods and services – which requires negotiation with 163 countries, any one of which, according to Clegg and Sutherland, could derail the process in the hope of extracting concessions.
“Our analysis suggests the most likely scenario is that the UK leaves the EU without any preferential trade deal in place — and without a WTO schedule of commitments. We will therefore lose access to more than 50 existing free-trade agreements”
One final point to raise regards the obstacle that specifications pose. Chad Brown, formerly a lead economist at the World Bank, notes that most UK regulatory standards from food to pharmaceuticals are in line with EU standards which, if the breakdown in TTIP negotiations are anything to go by, creates issues for future UK trade deals. Frequently during TTIP negotiations, talks broke down as technical standards were incompatible, therefore the extent to which the UK shares a trade agreement with the USA, for example, may be at the mercy of how willing the UK is to alter their regulatory standards, however this could then jeopardise the UK’s agreement with the EU.
“Brexit means taking back control of our borders”
Arguably the cornerstone of the Leave campaign was the vow to introduce controlled immigration to make Britain ‘British’ again, yet this appears to be in tatters also. As we know, if the UK opts to remain a member of the customs union it almost certainly has to accept the free movement of people (or something incredibly similar), but there doesn’t appear to be an alternative anyway.
May has not only rejected the idea of a points-based immigration system (stating that they do not work) but also David Davis’s ‘personal view’ that it was very improbable the UK would stay in the single market unless there were border controls in place.
“This government is looking at every option but the simple truth is that if a requirement of membership is giving up control of our borders, I think that makes it very improbable”
Based on this, it suggests that the UK is heading for an immigration policy very similar to the free movement of people. This has been highlighted by the recent statement from Philp Hammond, that there will be preferential treatment for ‘highly skilled’ people, notably bankers, and will almost certainly lead to an orderly queue being formed from a variety of industries – such as science, tech and restaurants – all asking “what about us?”.
“Brexit means we stop sending £350m a week to Brussels”
Of course, we now know that the £350 million we send to Brussels every week will not, despite being emblazoned on the Leave campaign’s battle bus, be sent to the NHS (and not just because we didn’t send £350m a week) but it may not even be going to another department (say, to the Department for Exiting the European Union to pay for the costs of negotiators for Brexit) but may, in actual fact, continue to be sent to Brussels.
David Allen Green, former government lawyer, affirms that if the UK wished to leave before 2020 it would require substantial re-negotiation of an already heavily negotiated budget which is in place until the end of the decade, this would involve the agreement of the other 27 member states (none of which have an interest in a renegotiation) as well as the EU institutions.
The result is a paradox, any attempt to leave before 2020 would mean months, if not years, of budget renegotiation which would delay any agreement. Therefore, this may explain why Hammond was so ready to guarantee domestic EU-related funding arrangements until 2020.
The list of broken promises could continue indefinitely, but the point is that whatever option the 650 MPs in the House of Commons are faced with will be completely different from the utopian vision that the Leave campaign promised the electorate and, therefore, may have the justification required to support their actions.
What would follow this in the event that it did arise is purely speculation. No doubt there would be anger from Leave voters who, by that point, would be shouting just as loudly as Remainers, but the government’s next move would be anybody’s guess.
Perhaps the government would go back to the drawing board and propose a different Brexit agreement which MPs would be more inclined to support – after all, rejecting a poor plan for post-Brexit Britain is a completely different thing from rejecting Brexit. Perhaps there would be a second referendum, one that is bound by law rather than being advisory which would not only give May the ability to trigger Article 50 without parliament but would also leave no doubt that the electorate wished to leave the European Union.
Perhaps, however, we will never get to this point, perhaps all Brexit will ever mean is Brexit.