The Gamble that Failed: The Brexit Election and what happens next

Professor Steve Peers

Last week’s early UK election ended with the surprising result of a ‘hung Parliament’, in which no one party had a majority of the seats in the House of Commons. What does this mean for the Brexit process going forward?

First of all, there’s a simple message for Theresa May’s Conservative party: they failed. Epically. The Prime Minister called this election three years early specifically to ask voters to increase her slender majority of seats in the Commons, in order to give her a mandate to carry out her Brexit plan. Voters refused – giving her fewer seats and a minority government instead. Of course, some voters must have voted on other issues, but the ‘Brexit negotiation mandate’ was the express reason for calling the election, and was repeatedly invoked by the Prime Minister throughout the election campaign. And while it’s true that the Conservatives are the largest party, that’s hardly comparable to the political legitimacy of a majority government – and again, that ignores the specific rationale for calling the election in the first place.

Having said that, the largest party is entitled to attempt to form a government, and the Conservatives are currently trying just that, in negotiations with a Northern Ireland party, the Democratic Unionists (DUP). That party has many of the same Brexit objectives as the Conservatives (see their manifesto here), including maintaining simplified border crossing with the Republic of Ireland (other UK parties, as well as the EU side in the Brexit talks, have this objective too). Together, the Conservatives and DUP will have a small majority of seats in the House of Commons.

What are the implications of this? Such a slim majority of Commons seats is vulnerable to defections, and in any event it’s not yet known whether the DUP will commit to support any proposed legislation. Furthermore, the government is now more vulnerable to rejection or major amendment of legislation by the House of Lords. While there is a constitutional convention, known as the ‘Salisbury Convention’, which commits the House of Lords not to block proposals for legislation tabled by a government which were mentioned in the winning party’s manifesto, it’s arguable whether this Convention applies where there is a minority government.

This applies even more so to the Brexit policy of this government, since the Prime Minister explicitly requested voters for a bigger Commons majority to combat the hypothetical prospect of the Lords voting against her Brexit agenda. In effect, she asked voters: “Give me a big majority so the Lords don’t meddle with my Brexit plans”. And the voters answered: “No”. In the circumstances, if the Lords block any government Brexit bills, they would not be frustrating the popular vote – but rather giving effect to it.

There is another option for a Commons majority to get its way, if the Lords blocks the adoption of legislation: the Parliament Acts, which allow the Commons to override the Lords.  However, there is a problem of timing here. If the Parliament Acts are invoked, the legislation in question comes into force after a one-year delay. But there are only 21 months left before Brexit Day (29 March 2019). Factor in the months necessary for Brexit-related Bills to pass through Parliament, and overriding the Lords is not a very plausible threat. Mrs Thatcher used to say that the problem with socialism is that you eventually run out of other peoples’ money. Maybe; but the problem with Mayism is that you eventually run out of your own time to negotiate Brexit.

Underpinning all this is the changed dynamics of UK politics as a result of the election. When the ‘Article 50 Act’ was passed earlier this year, there were enough votes in the House of Lords to support guaranteeing EU citizens’ rights in the UK, as well as parliamentary scrutiny of the Brexit deal. But eventually Labour Lords abstained on these amendments, and so the Bill was adopted without them. Labour’s abstention may have been because the party did not want to be accused of blocking the Article 50 process, and/or because the party was worried (in light of opinion polls) about facing a snap ‘Brexit election’ if it did.

Now the position is transformed: a) the Article 50 Act has been passed, so Labour cannot be accused of blocking the process; and b) the ‘Brexit election’ has already been held, resulting in an unexpected increase in Labour votes, seats, momentum and opinion poll ratings. Although Labour still lost the election, it is now far more likely to welcome a further election than to fear one in these circumstances.

Substantive issues

Let’s now examine how this changed political dynamic could affect the details of the Brexit process. The government plans to propose a Great Repeal Bill that would convert the bulk of EU law into UK law as from Brexit Day, as well as other Brexit-related legislation (on immigration and customs, for example). Under the new political environment, the opposition parties, possibly with Conservative defectors, have a bigger opportunity to pass amendments or to block such bills.

For instance, amendments could include: guarantees for the rights of EU citizens in the UK; limiting the government’s power to reduce social and environmental standards without a further Act of Parliament; effective parliamentary scrutiny of the negotiations; the role of the devolved legislatures; and parliamentary approval of the final deal. It seems unlikely that there are enough votes to demand a further referendum on the terms of the final Brexit deal, but there might be enough to require the government to seek some form of interim participation in the EU single market, pending negotiation of a subsequent post-Brexit trade deal. (While the Labour manifesto, as discussed here, ruled out continuing free movement of persons, arguably a brief continuation, with use of a safeguard clause like that in the European Economic Area, would not contradict this).

This brings us to a key Conservative party position that the new composition of the Commons could in effect rule out: the ‘no deal is better than a bad deal’ argument. One of the least edifying moments of the campaign was the Prime Minister’s endless repetition of this mantra in one of the debates, accompanied each time by bellows of support from her ardent admirers. This was always an implausible threat due to the damage to the UK economy it would likely cause if it were carried out. But now it is politically implausible to, for the government could well struggle to find a parliamentary majority in both Houses to carry such a threat out. (Labour, and other opposition parties, explicitly oppose the use of this threat).  

In particular, Parliament might be unwilling to repeal the European Communities Act to give effect ‘no deal’, or at least unwilling to repeal it in advance if the government wants to repeal it in advance of Brexit Day (ie, unilaterally breaching its EU law obligations set out in Article 50). On this point, it’s essential to recall the Supreme Court ruling in Miller, to the effect that EU law is part of the domestic legal system largely because of the European Communities Act, rather than executive powers. The ‘no-deal’ threat was always unconvincing in light of political economy; it is now even more unconvincing as a matter of parliamentary arithmetic.

One final observation on the ‘no-deal’ scenario: it is particularly incompatible with the position of the Conservatives’ planned partner, the DUP, because (as noted above) the latter is keen on maintaining the absence of controls on the border with the Irish Republic. Since customs issues are an exclusive EU competence, this cannot work out without some form of treaty with the EU. And the EU’s negotiating guidelines rule out a separate deal on this issue: other issues (including difficult questions about financial payments) must be settled as part of an overall package.

It’s technically possible that the EU might change this position and negotiate a separate deal on this issue, even if there’s no deal overall. But how likely is it? Some Leavers argue that the EU’s negotiation position will swiftly fall apart, and the UK can get whatever it wants from the talks. Yet they said things like this throughout the referendum campaign, arguing that immediately after the referendum vote the EU would beg the UK to do a trade deal on the UK’s terms. To borrow from some Brexiteers’ favourite genre (WWII films), German car makers would call Angela Merkel to tell her “For you, ze var is over”; and Merkel would in turn call other EU leaders to say “Ve haf vays of making you talk”.

None of this happened, of course. Nor did the parallel fantasy that Brexit would soon be followed by Nexit, Frexit and the rest as other EU countries held key elections. Instead, domino after domino stood firm, and populist party after populist party ditched unpopular anti-EU policies after a series of electoral defeats. Some Brexiteers said there’d be an orgy of countries leaving the EU; but the UK is the only one who showed up to it. When it comes to analysis of EU politics, maybe it’s time to swipe left on those Brexiteers.

Conclusions

The British public was asked to give its verdict on Theresa May’s Brexit strategy. Since the referendum, we’ve heard her sneering at Remain voters and alleging that the EU wanted to undermine the election, while her angry tabloid allies ranted about “enemies of the people”, “crushing the saboteurs” and “Blue murder”. After a year of this rhetoric, British voters have politely asked the loud woman to turn down the volume – refusing her explicit request to back her Brexit strategy and implicitly asking for a rethink. Sadly, having campaigned in Hard Rock, it seems that Mrs. May is incapable of governing in Easy Listening. But as always, it ain’t over until the Mother of Parliaments sings.

Barnard & Peers: chapter 27

Photo credit: Daily25

The UK General Election and Brexit: Comparing Party Manifestos

Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.

Conservatives

The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  

Labour

Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:

Greens

Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.

UKIP

Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.

Overview

There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.

Manifestos: Conservatives Labour Liberal Democrats Greens Scottish National Party UKIP

Barnard & Peers: chapter 27

Photo credit: BBC

Is Brexit inevitable? The UK’s EU membership after the General Election

Steve Peers

The unexpected election of a Conservative majority government in the UK raises some fundamental questions about the UK’s continued membership of the European Union. As a first response to the election results, I’ll discuss here in turn the issues relating to the referendum and the renegotiation.

The Brexit referendum

What are the key issues of principle concerning the upcoming referendum?

First of all, let’s start with the obvious point: the new government will implement the Conservative party’s policy of attempting to renegotiate the UK’s membership of the European Union, followed by an in-out (‘Brexit’) referendum on the results of the referendum by the end of 2017. A government bill to this effect will likely be swiftly introduced; it will probably be similar to the Private Member’s Bill tabled on this issue in the last parliament, which was supported by the Conservative party.

Secondly, as I blogged last year, the opposition of many pro-Europeans to a referendum was both a mistake in principle, and a tactical error too. There’s clearly no point in expending any political energy on resisting a referendum any further.  The issue for the pro-EU side is now how to win the referendum.

Thirdly, the idea of trying to expand the voting franchise to cover all EU citizens living in the UK is a moot point in light of the outcome of the election. That’s simply because the Conservatives have the votes to push through (as they proposed in the prior Bill) a referendum based on the usual UK general election franchise (UK, Irish and Commonwealth citizens living in the UK, and UK citizens who have lived abroad for less than 15 years). Indeed, as I blogged earlier this year, while I sympathise with EU citizens living in the UK who would like to vote in a Brexit referendum, it would again be both wrong in principle and a tactical error to expand the franchise for that referendum.

Thirdly, there’s no particular reason to assume, as some inside and outside the EU do, that the anti-EU side will win the referendum. Rather the contrary: according to polling, support for staying in has risen in recent years, and clearly exceeds the support for leaving. That’s before any renegotiation takes place. Of course, we might not want to rely on polling so much in light of the election result - although the lead for the pro-EU side in this poll is much larger than the error in opinion polls during the general election. There’s also no good reason to consider the election result as a de facto vote for Brexit: the Conservative party was arguing for a renegotiation and referendum, not Brexit as such, and did not even get near 40% of the vote in any case. In a referendum, there is no ‘first past the post’ to distort the outcome of the public choice between multiple parties – only a straight ‘yes or no’ decision.

Renegotiation

There are three important political dynamics that will shape the debate over renegotiation of EU membership – and therefore affect the ensuring referendum – in the two and a half years to come.

First of all, a key issue will be the relationship between David Cameron and the rest of his party, most notably the large Eurosceptic chunk of it. Cameron’s decision to promise a renegotiation and a referendum, and then to make immigration from the EU such a key feature of the renegotiation, was prompted by demands from his backbenchers and concerns about losing Tory votes to UKIP. The latter concern will surely now go on the back burner issue as a result of the general election; but could the former issue become more important? With a small majority, is Cameron now even more at the beck and call of his back-benchers?

The key issue here is whether Cameron will continue to respond to Eurosceptic demands to harden his negotiation position (or not to give any ground on the position he has already set out), or whether he will (on this issue at least) feel less pressure than before. After all, he has answered his internal party critics by winning a majority in the House of Commons – and he has less pressure on him as a result of his intention to retire by the end of this parliament. A crucial question here is whether he could count on other parties’ support, if necessary, in the event of a rebellion by his own Eurosceptic backbenchers.

There’s an important point of principle here. Not only does the Conservative party have a democratic mandate to hold a renegotiation and a referendum: it also has a mandate to hold that renegotiation on the terms that Cameron has already set out. Some Eurosceptics believe that the UK could demand any renegotiation terms it liked from the rest of the EU, and automatically get them. But the lack of enthusiasm from other Member States for Cameron’s demands so far suggests that the Conservative party’s demands are already at (if not beyond) the limits of what other Member States could be willing to accept. Those Eurosceptics who feel that his current renegotiation demands are not enough should join the pro-Brexit camp openly and honestly, instead of trying to trick Cameron into making unrealistic demands in the hope that other Member States’ rejection of them would compel Cameron to give up on renegotiation and campaign for Brexit himself.

Secondly, a key issue is what other Member States now do following the general election result. There seemed to be little interest in discussing the renegotiation requests before, but that was understandable for two obvious reasons. First of all, because of the pending general election: why start to renegotiate with someone who might soon lose office? Secondly, because (and this was widely misunderstood) the British government never requested a renegotiation; it was Conservative party policy only. In the absence of agreement on Cameron’s strategy from the Liberal Democrats, the UK government as such never requested a renegotiation.

Both those obstacles to talks have now been removed. The question is whether other Member States are now inclined to respond to the requests for renegotiation or not. The response of key Member States like Germany, and traditional friends of the UK like the Netherlands and Ireland, will be crucial. While some Member States may think ‘this is too politically difficult for us’ or ‘if you don’t like the EU, just go away’, this would be a mistake. As a net contributor to the EU budget and a net importer of goods from the EU, it would be foolish for other Member States to refuse to negotiate at all – although as I said already, that does not mean that the UK can expect the rest of the EU to accept any and all renegotiation demands it might wish to make.

The renegotiation process will raise some important legal questions about the form and substance that renegotiation will take. I have blogged about some of these points earlier, and will be coming back to them over the months ahead.

Thirdly, the role of other political parties in the UK will be crucial. As I already mentioned, Cameron might need their support in the event of a rebellion by Eurosceptic backbenchers. Tempting as it might be to cause trouble for Cameron, it’s not in the interests of pro-EU parties to jeopardise the UK’s EU membership, which they support. Because the Conservative party has a majority, other parties will have no direct influence on the renegotiation as such. But they have an indirect importance, because of their key role in ensuring a Yes vote in the Brexit referendum. This can hardly be secured by Tory votes alone, given that the party attracts under 40% of the vote, including many anti-EU voters.

This has implications for the content of the renegotiation. Many Tories would love to see a renewed opt-out from the social chapter; but many voters on the left might reject staying in the EU on that basis (even if it could be negotiated with other Member States). Anything beyond a modest curtailment of the EU’s working time Directive (for instance, overturning the wacky CJEU case law counting doctors’ sleep as ‘working time’) could risk an anti-EU vote.

Furthermore, this means that pro-EU opposition parties will have to share a platform with (some) Tories – even though we can be certain that after two years of Tory government there will be utter loathing of that idea. But a ‘no’ to the EU will not force the Tory government out, or even cause Cameron to resign (it’s widely assumed that he would resign as Tory leader shortly after the Brexit vote anyway). And the most fervent supporters of the free movement of EU citizens will have to accept that some curtailment of free movement rights is an inevitable consequence of the renegotiation. Without it, there will soon be no free movement between the UK and EU at all.

As for the anti-EU parties (mainly UKIP and a big chunk of the Tories, with a smattering of politicians from other parties), the key issue will be whether they can sell a coherent and plausible alternative to the UK’s EU membership. This is another issue which I will come back to, since it raises many legal issues. But suffice it to say that the simplest alternative to EU membership (the European Economic Area) is unattractive to Eurosceptics because it still provides for free movement of people. Any other alternative will entail a negotiation of a new agreement with the other Member States. But the anti-EU side will not only have to agree a common view on what this would entail, but also convince the public that other Member States will necessarily accept it. Compare to the Scottish independence referendum last year, where the SNP government was able put forward a single detailed plan on what independence would look like (I doubt that the various Eurosceptics could easily agree on the equivalent) but could not then (as I blogged at the time) convince enough Scottish voters that the remaining UK would agree to it. This may prove to be the Achilles heel of the anti-EU side.

Finally, a more general point. The result of the general election is undoubtedly a great shock and disappointment to non-Tories like myself. But the prospect of a Brexit referendum offers us a chance to fight (alongside pro-EU Tories) for important things we believe in, well before the next general election: employment rights, environmental and consumer protection, human rights, animal welfare, openness to the outside world and economic prosperity through trade in goods and services and free movement of people.  Let's try to light this candle, not simply curse the darkness.

 

*This post is linked to research for my forthcoming book from Hart Publishing – Brexit: The Legal Framework for Withdrawal from the EU or Renegotiation of EU Membership

 

Barnard & Peers: chapter 2

Image: ConservativeHome.com

The UK's general election: a fundamental change to UK/EU relations?

Steve Peers

The result of the current British election campaign could be crucial for the future of the UK’s relations with the European Union. Every UK-wide election party which is likely to win seats in the election has now released its election manifesto, namely: the Conservatives; Labour; Liberal Democrats; UKIP; and the Greens. It’s therefore a good time to examine what the parties are saying about the EU, and what the various post-election scenarios would mean for the UK’s relations with the EU.

According to pollsters, at present the most probable outcome of the election is that no party will have an overall majority, although there is a small possibility that either the Labour party or the Conservative party will obtain enough seats for a majority. In the absence of a majority, either the Conservative party or the Labour party will try to obtain enough votes to govern from other parties, which are likely to include parties running in Wales, Scotland and Northern Ireland.  So it’s necessary to consider what these other parties’ view on the EU is, and (more indirectly) whether they are likely to support Labour or the Conservatives in office.

Of these parties, only the Welsh Plaid Cymru has released its manifesto already, but I will refer to the other parties’ positions to the extent that they have been announced to the press: the Scottish Nationalist Party (SNP) and the Democratic Unionist Party (DUP). I won’t discuss Sinn Fein, since it will not take up its seats in Parliament, or the Northern Irish Social Democratic and Labour Party, since it sits and votes with the UK-wide Labour party.

Party manifestos

There’s a lot in the manifestos that touches upon EU-related policy. For instance, the Liberal Democrats promise a ‘Digital Rights Bill’, which is closely related to EU laws on data protection and net neutrality. EU law also has a big impact on environmental law, consumer law and some other policies. But I will focus here on the key question of ‘Brexit’, ie the UK’s withdrawal from the EU.

The Conservative party re-iterates that party’s policy of renegotiating EU membership and then holding an in/out referendum by the end of 2017. The renegotiation would focus on free movement (‘immigration’) from the rest of the EU, although the manifesto also refers to changing the principle of ‘ever closer union’ of EU Member States, and protecting the interests of non-eurozone Member States.

The Labour party manifesto refers to specific EU reforms, including EU immigration issues. It promises an in-out referendum if there is a further transfer of powers from the UK to the EU  This policy pledge is a development of current legislation (the 2011 European Union Act), which requires a referendum already in the event of such transfer of powers – but not an in/out referendum. However, the party does not promise an in-out referendum relating to the renegotiation. Indeed, they have made much of their opposition to that prospect.

The Liberal Democrats also promise an in-out referendum if there is a further transfer of powers from the UK to the EU. In fact, it’s their long-standing policy. They don’t call for a referendum following renegotiation.

The UK  Independence Party reiterates its long-standing policy in favour of the UK leaving the EU. It calls for a referendum to be held ‘as soon as possible’, with the preferred question ‘Do you want Britain to be a free, independent and sovereign democracy?’. They support a negotiated withdrawal, rather than a unilateral departure.

The Green Party declares itself in favour of the EU, although supports reform of it, and favours holding an in/out referendum on EU membership. However, it seems unlikely that this party would support a Conservative-led government.

Plaid Cymru declares that it is pro-European, and makes no demand for a referendum. It also seems unlikely that this party would support a Conservative-led government. The SNP support the UK’s EU membership, but in the event of an in/out referendum, they would like the public in each region of the UK to have a veto on leaving. This party has expressly ruled out supporting a Conservative-led government. The Labour party has in turn ruled out a coalition with the SNP, although it has not ruled out less formal arrangements.  

Finally, according to press reports, the DUP supports an in-out referendum on EU membership. It’s not clear if they would support renegotiation first, or would like an immediate referendum along the lines of UKIP. The DUP has traditionally supported Conservative governments in the past, although the party has declared its willingness to negotiate with the Labour party as well. It’s not clear if they would insist upon an EU referendum as the price of their support of a Labour government (it would be superfluous to insist on one as a condition of supporting the Conservatives). It’s also not clear if, like the SNP and Plaid Cymru, they would insist that Northern Ireland would also have to vote in favour for Brexit to be valid, but I doubt that this is their view, since they traditionally seek stronger ties between Northern Ireland and the rest of the UK.

Analysing the manifestos

To make things simpler, I will assume that politicians will stick to the policies that they are promising. Of course, it’s always possible that politicians will break their promises; some might say that this is about as certain as death and taxes. But politicians do keep some promises, and in some cases there are strong pressures on them to keep those pledges. For instance, if David Cameron reneged on his renegotiation policy, he would not last 24 hours as leader of the Conservative party.

There are three different visions of the UK’s future with the EU on offer: an immediate Brexit referendum (favoured by UKIP); renegotiation followed by a referendum (supported by the Conservatives); or renegotiation without a referendum (supported by Labour and the Liberal Democrats).

The latter two parties do support a referendum in the event of a transfer of powers from the UK to the EU, but that would only happen if there were a Treaty amendment that other Member States appear to have little enthusiasm for. In the event that Eurozone Member States want new measures to ‘save the euro’, it’s possible to agree separate treaties or EU legislation among themselves (as they have before), or, if necessary, to agree on amendments to the EU Treaties which only apply to the Eurozone states, or which otherwise give the UK an opt-out. In that case, there would be no transfer of powers from the UK to the EU, and so no need for a referendum.  Simply put, an in/out referendum under the Labour or Liberal Democrat policies is very unlikely.

As for the details of the Brexit policies, I have commented already on the details of the Conservatives’ intentions to renegotiate the free movement rules, and so won’t repeat these points again.

While UKIP make much of the need for an unbiased referendum campaign, their suggested question is clearly biased. A genuine unbiased question would be: ‘Do you support the UK remaining a member of the European Union, or leaving it?’, with boxes for ‘remain’ and ‘leave’ (so that neither side has the supposed advantage of being the ‘Yes’ vote).  

The demand for regional voting on a Brexit referendum in the different parts of the UK is clearly incompatible with the constitution of the UK as it currently stands. It resembles the arrangements in federal states like Canada, Australia and Switzerland, where there are both national and regional thresholds for constitutional amendments. But the UK is not such a state – though whether it should be one is a rather broader question. In any event, it’s a moot point, since it would only arise in practice if the SNP is supporting a Conservative government – which it has said it won’t do.

Negotiations between parties

What happens if no party holds a majority? The exact composition of the next government will then depend on negotiations between the parties, which in turn depends on the exact numbers of seats each gets. It’s too early to predict that now. But some basic points can be made.

First of all, it’s simply not true, as Professor Tim Bale has pointed out, that the biggest party always gets to form the government. It’s rare for the second largest party to form one, but it’s entirely legal and consistent with constitutional convention if it does.

Secondly, the Liberal Democrats have clearly indicated via press reports their willingness to compromise on the Brexit issue, and to support the Conservative demand for a referendum subject to discussion of the details, such as the width of the voting franchise and the wording of the referendum question. A Brexit referendum is clearly a ‘red line’ (non-negotiable issue) for the Tories. So a renegotiation and referendum would be likely to take place if the Tories and Liberal Democrats hold a majority of seats between them, or if the Tories, Liberal Democrats and DUP hold a majority.

Thirdly, a coalition or other arrangement involving UKIP (Tory/UKIP; Tory/DUP/UKIP; Tory/LibDem/UKIP; Tory/LibDem/UKIP/DUP) might have difficulty agreeing on the Brexit issue, due to the different policy of UKIP. Some Conservative backbenchers would undoubtedly like to a see an immediate Brexit vote, but others in the party, and the Liberal Democrats, would not. But it would be awkward for UKIP to back down on its most important policy.

If Labour and the Liberal Democrats held a majority, or if Labour formed a government in most other scenarios (Labour/SNP; Labour/LibDem/SNP; Labour/SNP/Green/PC etc) a Brexit referendum is highly unlikely.

Finally, in the improbable event that Labour and the Conservative party do a deal, differences in the Brexit referendum policy would be one of many obstacles. But the far bigger issue would be managing the consequences of hell freezing over.

Passing EU-related legislation

Finally, would there be any difficulties legislating for Brexit? It can be assumed that a Tory-led government would immediately introduce a government bill to put into effect its planned referendum. One potential problem here is the House of Lords, which blocked a previous private member’s bill which aimed to put this policy into law. The so-called ‘Salisbury Convention’ means that the House of Lords does not block government bills which implement policies which were set out in the leading party’s manifesto. According to the House of Lords itself, the convention should only apply if all of the coalition parties have set out the same policy – but only the Tories (and likely the DUP) have set out a renegotiation and referendum plan in their manifesto. That could lead to the House of Lords blocking the referendum Bill. Although a majority in the House of Commons could use the Parliament Act to overrule the Lords, that would mean a year’s delay in the law coming into force, which might complicate renegotiation talks.

Art credit: Adam, Daily Telegraph

Barnard & Peers: chapter 2

Scottish independence: how would it impact the UK’s relations with the EU?

Steve Peers

With the Scottish referendum on independence now imminent, and a surge in the ‘Yes’ vote now putting the pro-independence side ahead in some opinion polls, it’s a good time to re-examine the impact that Scottish independence would have on the EU – particularly as regards the EU membership of both Scotland and the remainder of the UK (the ‘rUK’).

At the outset, Scottish independence would mean that four important events would happen more or less simultaneously: Scottish/rUK negotiations on their future relationship; Scottish negotiations to (re)join the EU; UK renegotiation of its EU membership; and the UK general election. The first two events are entirely unprecedented, while the third (UK renegotiation of EU membership) has only happened once before (in 1974-5), under rather different circumstances.

The last event (the UK election) is commonplace, but again the circumstances would be profoundly different than usual. In particular the loss of 59 Scottish seats from the House of Commons would likely alter the result of the election, given that Scotland usually votes far more heavily in favour of the Labour Party than the rest of the country. But if the election goes ahead as planned in May 2015, the loss of Scottish seats would not take effect until the following year, if independence goes ahead as planned in spring 2016.

These four events are closely related to each other. For instance, the result of the UK election will determine the rUK’s negotiation position with an independent Scotland. It will also determine whether the UK attempts to renegotiate its EU membership at all. It should be recalled that renegotiation is the position of the Conservative party, but not (as things stand) of the Liberal Democrat or Labour party. So only a Conservative majority would certainly result in a renegotiation.

Further significant developments are possible, too. A ‘Yes’ vote in Scotland might result in David Cameron’s resignation, or attempts by some of his party members to remove him. The UK Independence Party is likely to win its first Commons seat in an October by-election.

So no-one can realistically predict with any certainty how things would develop after a ‘yes’ vote. The key question of whether Scotland could rejoin the EU has already been discussed in a previous blog post (as has the issue of immigration between Scotland and rUK). The focus of this post is therefore on one issue: the impact of a ‘Yes’ vote on the UK’s relations with the EU.

The starting point here is Scotland’s relations with the rUK. Trade with the rest of the UK (as well as the rest of the EU has a whole) is obviously crucial to Scotland. Indeed, a key feature of the ‘Yes’ campaign is the argument that nothing would really change in this regard, whereas the ‘No’ side has argued that relations with the rUK and the EU would likely be jeopardised after independence.

Clearly, the ‘Yes’ side seems to be winning this argument. Apparently they have been able to convince an increasing number of voters that the ‘No’ side argument is a bluff which can be called.

Is this argument a bluff? Dissecting the issue objectively, there is good reason (from its point of view) for the ‘No’ side to refer to the risks of independence up until the referendum date (although politically speaking, making this argument seems now to be backfiring for them).

But in the event of a ‘Yes’ vote, the rUK ought to consider what it in its own best interests. It seems very clear that, given the economic importance of Scotland to the rest of the UK, the rUK ought to seek to maintain as close an economic relationship with the rest of Scotland as it possibly could. That has domestic implications (as regards a currency union), but also implications for Scotland’s relationship with the EU: it will overwhelmingly be in the interests of the rest of the UK to advocate Scotland’s continued membership of the EU on terms equivalent to the UK’s current membership. Indeed, this is the crux of the ‘Yes’ side’s argument on this point: the ‘No’ side is threatening not just Scotland but also itself. That threat just isn’t credible.

It is possible, however, that the rUK will not act in its best interest. Voters in the rest of the UK may be resentful and desire to punish Scotland. Furthermore, those who wish to renegotiate the UK’s EU membership, or withdraw the rest of the UK from the EU, may not have an interest (for tactical reasons) in supporting Scottish EU membership. The first group (the renegotiators) would face a difficult dilemma, because they would have to expend their limited goodwill with the EU not just on one major project (renegotiation) but a second project (Scottish membership) at the same time.

Provided that the renegotiators genuinely want the UK to remain part of the EU, then it nevertheless makes sense for them to push for both at the same time. After all, while the rest of the EU already takes up a large portion of UK’s trade, that portion would be larger still after Scottish independence – if an independent Scotland joined the EU.

Yet this in turn explains why those who wish to withdraw from the EU might seek to block Scottish membership of it, either directly (by refusing rUK consent) or indirectly (by stirring up opposition among countries like Spain, which have their own regional independence movements to contend with). Of course, if the UK does leave the EU, it can no longer block Scottish membership of it. But in that case, Scots would no longer be as keen to join the EU, since joining the EU would then possibly impede its trade with the remaining UK (although this assessment would be depend on the terms of an EU/rUK free trade agreement – if there is one).

Indeed, some English Eurosceptics might well fantasise that Scotland might be the first country to sign a free trade agreement with the newly ‘independent’ rUK. One can only imagine Alex Salmond’s face at that signing ceremony.

Barnard & Peers: chapter 3