Updated 7 August 2016: Vienna Convention on the Law of Treaties eliminated as possible recourse.
Updated 2 July 2016: article restructured; proposal simplified; information on Vienna Convention on the Law of Treaties added; paragraph on election communications added.
on 23 June 2016, disillusioned people across the United Kingdom voted to give government, Brussels, the Establishment a bloody nose. some had no real expectation it would make a difference; some had been fed a simplistic idea of how disengagement from the EU would yield immediate benefits; but probably the majority still believe that leaving the EU is the right move for Britain. those people now also fear that the governing ‘elite’ are seeking a way to wriggle out of obeying this inconvenient popular mandate.
who’s to blame?
in times of hardship, people seek out scapegoats: this time it’s not the monarchy, Catholics, Jews or Communists; it’s Brussels and immigrants.
the truth however is that the blame lies squarely at the door of our own government, under Labour, the Coalition, and the Conservatives.
successive British governments welcomed rapid immigration to increase the productivity of our economy, and the concomitant increase in tax revenue; but they did not invest adequately in the infrastructure that a growing population and economy requires: housing, schools, healthcare delivery, and transport. they permitted banks to risk ordinary people’s savings and pensions on speculative investments that amounted to little more than ponzi schemes, artificially inflating the economies of Spain, Ireland, Portugal, Italy and Greece. they manipulated the capital markets to erode the savings of the working poor and increase the wealth of the rich. they conducted deeply divisive military interventions in Afghanistan, Iraq, Libya and Syria, empowering Al Qaeda and Islamic State, precipitating genocides, indiscriminate terrorist attacks around the world, and the worst refugee crisis since the Second World War.
these are just a few of the actions of our own government that have created a toxic farrago of poverty, inequality, isolation, job insecurity, unaffordable housing, unfairly rationed health and social care, devaluation of public service, religious extremism, and xenophobia. the EU referendum result is the culmination of years of misunderstanding, misjudgement, dishonesty, arrogance and narcissism by political leaders.
so how do we rescue the situation? the government is not legally bound to act by the 23 June EU referendum nor any EU Treaty, but it is under a moral obligation to carry out the wishes of the majority and to eliminate uncertainty for the other EU member states.
negotiating an exit must start immediately, to reassure Leave voters that government is not going to betray them. but, if the point of no return can be delayed, it should be. when it becomes clear what exiting the EU actually means, some Leave voters may change their mind. and that’s OK.
a second referendum
holding a second referendum before any new information is available would be insulting to the vast majority of those who voted Leave on 23 June. it would most likely lead to civil unrest and further evaporation of trust in government. the only fair and reasonable course of action is to determine what exit actually means and put that to a second referendum:
- leave the EU on whatever terms have been agreed (or a clean break if there is no agreement).
- remain on whatever terms the EU is offering at that time.
this second referendum should be binding on the UK government to act, so as to give people confidence in the validity of the process.
this proposal recognises that:
- the referendum on 23 June gave the government a mandate to negotiate an exit agreement with the European Union.
- no-one knew on 23 June what form an exit agreement might take.
- people voted on the basis of speculation about the terms of an exit agreement, and on the likely impact on people’s quality of life, net immigration, the economy, and Britain’s global political standing.
- it is therefore only fair to those who voted, to remain or leave, that they be given a chance to review the actual terms and implications of leaving the EU.
Germany, France and Italy have ruled out the option of UK and other EU member states negotiating the final terms of an exit agreement before the UK invokes Article 50 of the Lisbon Treaty (see BBC News report), but it could be in everyone’s interests for the UK not to rush into invoking Article 50.
legal advice is that the Vienna Convention on the Law of Treaties does not apply to the Lisbon Treaty because the European Parliament has jurisdiction to determine the treaty’s interpretation and application. it also seems highly unlikely that all EU member states would agree to allow the UK (or any other EU member) to temporarily invoke Article 50 in order to negotiate a better deal with the EU.
since invoking Article 50 is a one-way street, the question is how long invocation may be delayed. the only justification for holding a second referendum before invoking Article 50 will be if significantly more detail has to be established as to what Brexit means, domestically and internationally (in terms of diplomatic, social, cultural, scientific, economic and trade relations with EU and other major nations). this is in the best interests of the UK, even though it could take many months.
there is a good case to be made for the EU to flesh out Article 50 with a detailed framework of procedures. this would ensure that, if any other country considers leaving the EU, it will not be taking the same leap into the unknown that the UK has done. whether there is the will amongst EU members to do this in advance of the UK invoking Article 50 has yet to be seen.
delay in invoking Article 50 will prolong uncertainty for the whole EU. but Article 50 negotiations could see two years or more of uncertainty anyway. preliminary work could reduce the time required for post-invocation negotiations, and create a scenario in which Brexit does not happen. all EU member states should recognise that as a worthwhile path to tread.
Brexit will be destabilising for all EU members, and hugely costly for the UK. if cool heads can prevail, Brexit can be avoided, and meaningful EU reform achieved. let’s not break the EU; let’s mend it.
section 2.5 of the House of Commons Briefing paper Brexit: how does the Article 50 process work? examines the question Could a notification be withdrawn? one conclusion is that, given that the Lisbon Treaty is silent on the matter, Article 68 of the Vienna Convention on the Law of Treaties would apply: a notification of intention to withdraw from a treaty ‘may be revoked at any time before it takes effect’. there may be some legal dispute over when revocation ‘takes effect’, but the most obvious interpretation is that it is when withdrawal from the treaty is concluded. in this case, that would be when an exit agreement is signed or the negotiation period expires. it would however be helpful if the European Council declared that Article 68 does apply, and that invocation of Article 50 may therefore be revoked at any time before the UK officially withdraws from the EU. it is not in other members states’ interests for the UK to leave the EU, so it seems unlikely that they would refuse the UK this escape. (Britain may be a thorn in the side of the Mediterranean EU states, but its membership does bring benefits, not least of which is its ‘special relationship’ with the US.) the time and effort involved in negotiating terms of exit will not be wasted: it will benefit the EU if the process and terms of exit for a member state are thrashed out and codified for all to see. then if and when another country considers leaving the EU, it will not be taking a leap into the unknown. there is an argument that if the UK states an intention to hold a second referendum, then other EU member states will deliberately offer a lousy deal in the hopes that the British public will reject it and opt to remain in the EU. that would be an uncharacteristically risky gamble. it is in the interests of other EU member states to continue constructive and cordial diplomatic, social, cultural, scientific, economic and trade relations with the UK, inside or outside the EU, so I would expect negotiations to be fairly balanced.
it is deeply saddening that some people are claiming that they voted Leave as a protest, not expecting their vote to change anything. this is proof of how broken our democracy is: that for decades, generations even, people have voted in general and local elections knowing that their vote counts for nothing, because they live in a ‘safe seat’.
government can regain some political capital by reforming the electoral process to make it more inclusive and honest.
in the first place 16 and 17 year olds must be permitted to vote in all elections and referendums. society allows anyone aged 16 to marry, have a baby, join the armed forces and, at 17, to drive a car; but not to vote. the arguments against lowering the voting age sound eerily similar to reasons used in the past to deprive women of the vote or, before that, anyone who wasn’t a landowner: it would be dangerous; they’re not competent to vote; they’d vote irresponsibly. it’s bunkum, and the British government should admit it, and follow the Scottish government’s lead in lowering the voting age for Scottish Parliament and local government elections.
first-past-the-post voting typically produces a clear majority for one of two major parties, at the expense of fair representation for all other parties. the solution is a system of proportional representation. not only will more people get their political views represented in Parliament, politics will attract and catch a wider range of candidates, people whose ideologies do not align neatly with one of the established parties.
to make a change to proportional representation viable, it will be necessary to split the role of an MP into two: a non-partisan local ombudsman and a national political representative. a local ombudsman would serve as an advocate for people within a geographical area, ideally corresponding to a local authority area, since much local advocacy involves issues and disputes between residents and their local councils. a small team of national representative would, like MEPs, represent larger regions, taking a strategic overview of local, national and international issues and ideas that should inform and guide government policy and legislation.
there is an urgent need to legislate to require election and referendum communications comply with basic standards of accuracy, honesty and equality. the Advertising Code, enforced by the Advertising Standards Agency has no powers with respect to political advertising. Parliament needs to publish a code for election and referendum communications and decide what body, if not the Advertising Standards Agency, should enforce it.
what you can do
- feed back here if you have any suggestions for changes, additions or corrections to this article.
- talk to people who voted the opposite way to you to understand what their reasons, frustrations and fears are. it’s easy to dismiss another person’s view as stupid, ignorant or perverse, but their reasons may make sense only when you understand their context.
- write to your MP to tell them what you would like to happen (feel free to copy and paste anything from this article into your email).
- Article 50 of the Lisbon Treaty: procedure for a country to leave the European Union
- House of Commons research briefing on Brexit: how does the Article 50 process work?
- European Parliament briefing on Article 50 TEU: Withdrawal of a Member State from the EU
- timeline of the European migrant crisis
- 23 June referendum results
- Votes at 16: campaign to give the vote to over 1.5 million 16 and 17 year olds in the UK
- Scottish Parliament’s bill to lower voting age
- Committee of Advertising Practice: Advertising Codes
- women’s suffrage in the United Kingdom
- Reform Act 1832
- Electoral Reform Society
- ResPublica: non-partisan think tank seeking a new economic, social and cultural settlement for the UK