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BREXIT IS ILLEGAL! SO WHAT?
10 Apr, 2018

Only a democratic decision will change the UK’s course

The questions around Cambridge Analytica’s rôle in the referendum are only the latest attempt to have the referendum viewed as null. But 17m people voted Leave. No court decision to cancel Brexit is going to satisfy them – even if one were potentially available. Only a new referendum has the political authority to change course. We should stop wasting time, money and hope on counter-productive campaigns writes London4Europe Committee member Michael Romberg.

Some useful cases

I am not saying that all Brexit litigation is pointless or harmful.

The legal cases of the Good Law Project in Dublin and Edinburgh (crowdfunding is live) to establish whether the Article 50 notification may be withdrawn unilaterally address a real process issue, although I have tactical doubts about the timing.

The Good Law Project’s case for the release of Brexit studies that the Government was trying to keep secret was a useful piece of process, essentially a legal backup to a Freedom of Information Act request.

None of these cases challenges the validity of the decision made in the 2016 referendum.

Live Issues

Currently there are two main live issues in this field. Did VoteLeave overspend against permitted limits when they passed money to another campaigning organization? And was part of success of the Leave campaign’s digital media strategy down to the use of personal data that had been obtained in breach of rules?

The Electoral Commission, the police and the courts need to look into these claims. If people have broken the law they need to be dealt with by the courts. But the courts have no power to order the referendum to be re-run.

Franchise, Scotland, non-voters, advisory…

Right from the outset there was a whole raft of reasons advanced by Remainers about why the referendum result should just be set aside. Few of these made much sense in their own terms. None came even close to justifying ignoring the views of 17m voters.

“There has never been a decision to Leave”

There is an argument that the UK has never made a legally binding decision to leave the EU so the Article 50 notification is void. That is, Parliament authorised the sending of the Article 50 letter but never voted to leave the EU (the referendum was in law advisory). (There is a crowdfunded legal case.)

I’m no lawyer, but from my experience as a civil servant even in law it seems a highly doubtful proposition. The drafting of UK legislation is efficient. A decision to do something is wrapped up in the consequences of that decision. That is, you do not have section 1 that says “let’s quit” and section 2 that says “let’s announce that we are quitting”. Just having the second point will do.

Further, for the case to stand you have to believe that when MPs debated whether the Government should have the power to send the Article 50 notification they thought that they were debating a purely hypothetical case to cover the eventuality that some future government might wish to do so. You have to believe that it never entered MPs’ minds that the Government might actually, you know, send the letter now, perhaps because there had recently been a referendum.

The lawyer and blogger David Allen Green argues rather more convincingly than l do that the crowdfunded legal case has no merit here

“In law we are not leaving the EEA”

There is a legal case (currently on hold) which argues that leaving the EU does not automatically mean that we leave the European Economic Area (the concept that brings together the EU and the EFTA countries in the Single Market).

Well, even if true it won't mean that Theresa May's government is forced to stay in the Single Market. It would just mean that - gasp! – the UK would have to write a separate letter to the EEA giving notice to quit that

“Leave lied”

BrexitJustice raised over £175,000 in crowdfunding for legal cases to prosecute Leave campaigners for lying in the referendum campaign.

It is not easy to prove lying in an election case. Over-optimistic claims about how soon Turkey will join the EU will not do it. The leading case in this field involves a leaflet designed to look like the leaflet of an opposing candidate. Anyway both sides were accused of lying.  And while some of the Leave “lies” fail many tests they are not necessarily dishonest in a legal sense: the £350m was not a useful or fair figure to use, but it had some foundation as the gross amount due to the EU before rebate, UK receipts &c.

More importantly, a prosecution for exaggerated claims and dodgy use of numbers would have a chilling rather than beneficial effect on political debate. Should Corbyn be prosecuted for justifying Brexit by the wish to escape EU rules to be able to nationalise water (Q&A at 1 hour 22 minutes) when other countries have nationalised water industries or should he be challenged by political debate? I’m for the latter.

Let’s take a step back

These arguments and cases are trying to say is that it is all alright. We can wake up from the nightmare. Brexit gets called off – just like that!

But any Remainer who thinks that Brexit can be stopped or even shaped by a legal technicality is on another planet. At most it would require another hoop to be gone through, like the Gina Miller case and the Article 50 notification Bill, even though many Remainers hoped it would lead to Brexit being stopped dead.

Politically, the decision was made in the 2016 referendum, a public statutory vote with a turnout higher than any recent general election. Before the vote politicians told the electorate that it was for real - their will would be done. Whatever its legal status, the referendum result is politically binding.

Brexit can only be stopped by a democratic act where the will of the people is seen to have changed. Given that we started the process with a referendum only a referendum on the terms has the political authority to change course.

How to win the next referendum

It’s really very simple: we have to persuade 2016 Leave voters to vote Remain in their own best interests.

Whenever a Remain campaigner make an argument on whatever basis that the 2016 referendum vote should just be set aside Leave voters stop listening. Part of the Leave vote was a shout from people who felt they had been ignored. This sort of Remain argument just confirms them in their view that the UK needs radical change – and Brexit is the most radical change option they have been offered.

Instead we need to show that we have heard them; that Remain does not mean going back to the way things were; that the largely domestic practical issues that really matter to most voters (NHS, public services, education, tax, austerity) have to be addressed in Westminster not Brussels; that the political parties have heard the voters and have competing policies to make things better; and that Brexit will hinder or prevent these changes.

Conclusion

Let’s drop the magical thinking. As democrats, we have to persuade the people to our way of thinking.

As a start, we must accept the 2016 result. But since Leave had no plan we should see the result as provisional until there is a plan. Then we should have a referendum on the terms with the option to Remain.

 

 

 

 

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