Brexit: Getting out of the Maze

 

Dr Peter Collecott CMG (Co-Chairman) was UK Ambassador to Brazil. He advises multinationals with substantial interests in Brazil on relationships with governments and public authorities. He has extensive experience in the energy sector and is a leading commentator on climate change policies.

 

Sir Stewart Eldon KCMG OBE is an adviser and commentator on international defence and security issues. He served as UK Permanent Representative to NATO; Ambassador to Ireland; and Deputy Permanent Representative to the UN in New York. He works with private and public sector clients in Africa and has led executive workshops in negotiation and diplomatic skills.

 

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Whatever one thinks about the substance of Brexit, the current negotiations have been handled very badly, with little regard to certain basic principles. The triggering of Article 50, which handed the EU the crucial negotiating lever of a ticking clock, was done before the Government had settled basic issues such as procedure and a set of clear, consistent objectives - let alone tested how these objectives would stand up in negotiations. Little attempt was made by Ministers to understand the interests and needs of the EU; and how the legal, institutional and procedural structure of the EU would affect the negotiation.  And they failed to cultivate the personal political links that are essential to success in a negotiation of this sort.

 

These failings led to the severely sub-optimal outcome of the negotiations, and their resounding rejection in the House of Commons. They, and the secrecy with which Theresa May proceeded, trying to bounce even her successive Brexit Secretaries at crucial points, are laid at the door of the disarray within the Cabinet and the Conservative Party. That is not sufficient excuse when the national interest is at stake.

 

Parliament cannot escape blame. They failed to react strongly enough, and early enough, to continued attempts by the Executive to bypass Parliament; failed to insist on clear objectives, and to hold the Government to account as the negotiations proceeded; and fell in too easily with party politicking of their leaders.

 

Nor can the Labour Party escape censure. They too have subjugated national interest to Party interest and management and failed to fill gaping vacuums of leadership and ideas in difficult national circumstances.

 

Underlying the current mess are two broader issues. Firstly, the political one that Europe has never been an issue which can easily be dealt with within the parameters of our current two-party political system, since both major parties are split on Europe. Edward Heath needed Labour votes to take us into the EEC; Harold Wilson needed Conservative voters to keep us there in the 1975 Referendum; John Major needed Labour support to get the Maastricht Treaty through Parliament in 1993.

 

Secondly, there is the constitutional issue – the tension between our established representative democracy, where sovereignty lies with Parliament, and a resort to popular democracy via referenda. Here David Cameron bears a major responsibility.  Parliamentarians are impaled on the horns of this dilemma, unwilling either to stand up for a Burkean Parliamentary democracy and take decisions in the national interest, or to hand sovereignty to the people in a plebiscitary democracy.

 

Hence the current impasse. The Government has ended up negotiating with the EU a deal which is not supported in the Conservative Party or the House of Commons – because of the tactical mistakes, and because it has not made the clear choice between a close association with the EU, which implies becoming a rule taker, and a much looser association, which would damage the economy. The Government won’t make this choice because it is scared that it would split the Conservative Party – not learning the lesson of Heath, Wilson and Major. In the process, it tried to flout parliamentary sovereignty by trying to avoid the House of Commons having any vote on Article 50 or the terms of Brexit; and is now refusing to either resign or radically change tack when its central policy has been rejected by the House by a record majority.

 

There is no easy way out of the current Brexit maze in political or constitutional terms. Theresa May seems incapable of turning herself from a combative partisan Prime Minister into a facilitator of political compromise, willing to forge a Parliamentary majority for the way forward – which may well not be what she has negotiated - and to implement whatever Parliament agrees upon. All this would take time, even if she, and the Opposition, were willing. They are not so far, and time is running down to a “no deal” Brexit.

 

Consequently, more time is needed to find a way out of the maze, and to start rebuilding public confidence in politicians, Parliament and the political system. That means either extending the Article 50 deadline, running out on 29 March, or rescinding the triggering of Article 50.

 

An extension of Article 50 requires the agreement of the EU 27, which is unlikely to be given for further negotiation on Mrs May’s deal, but might be if she took a radical new approach. However, the approach of European Parliamentary Elections in May appears to be a constraint on a significant extension; and a short extension would mean that the political process would have to take place under severe time constraints, when what is needed is a period for calm reflection.  Crucially, an extension cedes further control of the negotiating process to the EU27.

 

Much better would be to rescind the triggering of Article 50. The ECJ has recently confirmed that this can be done unilaterally by the UK, provided it is ‘unequivocal and unconditional’ and the result of e.g. a Parliamentary decision. Brexiteers might argue that this would be the end of Brexit, but the Article could be revoked without prejudice to the outcome of the referendum, in order to allow Parliament to reach a clear view on the way forward. The UK would thus retain control of the process and have time to prepare a stronger negotiating strategy for whatever came next, whether a managed no-deal; negotiation of a looser arrangement; or a decision not to leave. Arguments that revocation might in some way undermine the extension provisions of Article 50 don’t appear to carry much weight; after all, any EU member state can invoke Article 50 at any time of its choosing.

 

There would need to be a clear pathway of what would happen next.  Self-evidently there needs to be an agreed Parliamentary process, perhaps including free votes on alternative outcomes. Secondly, any way forward agreed by Parliament would have to be ratified in some way, either by a General Election or a Referendum – as well as being given a reality check through informal contacts with the EU Commission and the 27.

 

A General Election would have the advantage of reinforcing the legitimacy of the Parliamentary system. There is the potential for Brexit getting muddied by other partisan issues – and the struggle for power for the next five years. But a general election would effectively hold Parliamentarians responsible for their actions in a way consistent with British history and traditions and it is difficult to argue against its legitimacy. A referendum would risk further inflaming popular divisions and give legitimacy to popular democracy and the societal consequences could be very serious, opening further wounds that would not easily be healed. But a referendum would at least be focused on the Brexit issue; and some would argue that another referendum is needed to ratify the results of negotiations instituted by the first referendum.  The choice between the two options is not easy.

 

In parallel, there would need to be some flanking measures. Ideally, there would be a realignment of parties, but that could not be mandated. There should, however, be some clear understanding of the role of referenda in our parliamentary democracy, with agreement on the electorate (as for General Elections) for, and the non-binding nature of, future referenda, and limits on turnout and majority before a referendum result would be considered a legitimate guide to popular views. It may also be necessary to revisit the Fixed-Term Parliaments Act.

 

There would also need to be a strong commitment to addressing the issues of identity and inequality which in part underly the Brexit debate. We cannot just fix the political and constitutional issues without addressing the underlying social and economic issues.

 

Following a revocation, the UK would remain in the EU with existing rights and powers. It could well be that with the election of a new European Parliament, and the appointment of a new Commission, political agendas within the EU will change, helping to address some of the concerns that led to the Brexit Referendum vote, and changing the balance of advantage for the UK. Time will tell.  But in any event, there would be an opportunity to resume a much more assertive role in EU business in support of the national interest.  This could only be to the good and if handled properly could restore some of the UK’s damaged international reputation.

 

Overall, instead of ploughing on with chaotic short-term processes largely dictated by others, within a political framework dominated by partisan attitudes - and thus getting things wrong - it would be far better for the UK to take time to engage in mature reflection without prejudice to either side of the argument, maintaining an element of control over the process and the timing, in order to get things right. Only thus will we be able to find the exit to the Brexit maze.

 

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 Peter Collecott

 

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