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Brexit Mess
Publication date: 2016-08-05

Brexit Mess - How to Sort It Out

In a comment on an article in the Financial Times a reader said:

… it is a total mess. And where we go from here, I don't know.

The simplistic solutions (invoke Article 50 immediately, have another referendum, call an immediate general election) don't seem to be viable for the moment, for whatever reason. It seems that we are forced to hang on until (if) a solution presents itself.

Such view of the present status of Brexit is not unique to this reader, there is an avalanche of such opinions and similar solutions both in the Main Stream Media, and on the Internet social networks.

But why there is such confusion, and are the proposed “solutions” real solutions, and, if not, then what are the real ones?

The “simplistic solutions” (1) have another referendum and (2) call an immediate general election are not solutions at all: they are plainly wrong. They will create more problems, discredit the government, and have uncertain outcome.

Article 50 is not a “solution”, but a procedural step, in the process of leaving the EU.

“Hanging on” hoping for something to happen is a confession of helplessness, and not a solution either. And again it creates periods of uncertainty, diminishes the credibility of government, and has uncertain outcome.

So, are there any solutions to the Brexit Mess?

The rational way to handle such messy situation is to understand it first, and then to take steps on the basis of this understanding.

There are three distinct areas of confusion: (1) constitutional consequences of the referendum decision, (2) the interpretation of Article 50, (3) arguments about relationships between the UK and the EU after “Brexit”.

To understand them they need to be considered separately on their own merits and in the right sequence.

1. The Constitutional Consequences of the Referendum Decision

Is the Referendum Decision advisory or legally binding?

If the referendum decision is advisory, and requires approval by parliament, then the decision needs to be put for approval by the Parliament, because, if the Parliament decides not to follow the referendum decision, then there is no “Brexit” and (2) and (3) become irrelevant.

If, on the other hand, the referendum decision is legally binding on the government, or, if advisory but is confirmed by a parliamentary act, then “Brexit is Brexit”, and the government should implement this decision. And in this case the interpretation of Article 50 becomes relevant.

The Referendum Act contains nothing about the consequences of the referendum decision.

This is a drafting fault, because, if the consequences of the decision had been clearly stated in the act, there would not have been arguments about whether the referendum is “advisory” or “legally binding”. The act also needed clear statements about what constitutional steps the government should take and within what time‐limit after the referendum results.

But, as the Referendum Act has nothing about what should happen, if the decision is to change the present status (i.e. leave the EU), then, had this dispute had gone to a court of law, they would have to reconstruct the intent of the document on the basis of the behavior of the parties.

The UK government: (a) presented the referendum to the public as “you decide”, (b) made explicit statements that “Brexit is Brexit”, (c) created “Brexit implementation” official appointments, and (d) proceeded to negotiate the exit and even the post‐exit conditions with the EU.

These above actions of the government show that the government saw the referendum decision as “binding”.

The facts that the Referendum Act does not state (a) whether it is advisory or binding, and (b) what constitutional procedures should be followed after the decision only show that those who drafted the Referendum Act are careless and lack competence, not that the referendum was meant to be “advisory”, rather than “binding”, as some suggest.

And, if it is binding, then the government needs to make a clear statement that the referendum decision is final and that there is no need for Parliamentary debates, and then put on the referendum decision a stamp of approval, which could be as simple as Royal Assent, or a more formal Royal Decree.

Once it has been clearly established that the referendum decision is binding, then the government should proceed to terminate its membership of the EU. And this is when Article 50 becomes relevant.

Arguments about decisions of referendums, or elections, being “good” or “bad” are totally pointless.

This is because the purpose of voting is not to find the best solution to a problem, but to stop people arguing. This is done by the people accepting the “will of the majority”, regardless of what this “will” happens to be.

Just because the majority of votes were cast for “leave”, does not say anything about this decision being “good” or “bad”. And it is pointless to argue about the merits of this decision. The majority have made a decision, and it has to be accepted for better or for worse. This is what “democracy” means.

2. Interpretation of Article 50 of the Treaty of Lisbon

Article 50 does not state what conditions the parties should comply with if a member state decides to leave the EU, but instead says that the parties should agree this issue within 2 years or more.

This again is bad legal drafting, because instead of defining the obligations of the parties arising out of termination of membership and the procedural steps they should take, it forces the parties to enter into negotiations, the outcome and time‐scale of which are uncertain.

Article 50 also contains a reference to “taking account of the framework for its future relationship with the Union”.

Does the agreement between the parties stipulated in Article 50 mean that the current commitments arising out of the membership of the EU should continue for an agreed period of time after the cessation date?

Or does it mean an agreement about continued future relationships between the parties after the UK has left the EU?

The intention of termination of any agreement is clearly to end the relationships between the parties arising out of the agreement, although the parties could be obliged to continue to discharge some of their mutual commitments for a limited period after the date of cessation.

This is needed to prevent damage to the parties interests by an abrupt cessation, so that they can make orderly arrangements. (Like, “your right to stay in the UK will be subject to the UK laws after 2 years”, instead of “pack up your bags and leave forthwith — it's brexit”).

Termination of an agreement does not mean that the parties cannot enter in some other agreements, or even the same agreement, after the present agreement is ended. But such agreements about future relationships between the parties become possible only once the present agreement has come to the end, i.e. UK becomes fully independent of the EU.

Seeking to change the relationships between the parties arising out of the EU membership would mean, not termination by the UK of the EU membership, but continuation of membership subject to alterations of the membership rules. This would be contrary to the Referendum Decision, and would lead to loss of public trust in the government.

So, if to interpret Article 50, as relating only to the continuation of the ongoing relationships for a limited time after the formal “Brexit” date, then such agreement can be reached within weeks, and “Brexit” can be completed without undue delay.

The continuation of the current obligations between the parties for an agreed period (of 2 years?) would give the UK government time to pass new laws and establish the administrative framework for their implementation, and, for those affected by the change, to make the necessary arrangements to comply with these laws.

This would complete the “Brexit” procedure and put an end to all the uncertainties relating to it.

3. Arguments about Relationships between the UK and the EU after Brexit

Post Brexit relationships between UK and EU, become relevant only after the UK has left the EU. They should not be mixed up with the exit procedure.

Both leaving and staying have their advantages and disadvantages. Neither is a disaster or suicide, as some argue.

There will always be people who disagree, but such disagreements are decided by elections, referendums, or in courts of law.

The decision should UK leave EU or stay, was put to a referendum, and the decision was made. If the referendum is valid and binding, the government should proceed with its implementation without delay.

The future of Britain outside the EU will depend more on the way Britain is governed than on any “deals” by the government with other countries.

But, of course, the UK government will be able to make as many agreements with other countries, including the EU, as they wish. There is no need, however, to make agreements for the sake of making agreements. The agreements should yield some beneficial results.

4. Why Governments should Respect their Own Laws

If the government want to be respected, they need to enact laws with due competence and diligence. The purpose of laws should be clear to prevent arguments and disputes. Once a law is enacted it should be followed by the government.

A lawless government relying on headline management, evasions, and cover‐ups will lose the trust of the people and will be swept aside. As it happened with the Labour government of Tony Blair.

It is time to return to the real British values of Honesty the Best Policy, My Word is My Bond, and Law and Order.

It is always tempting to cut a corner or pull a fast one, or to hide under the table hoping that things will sort themselves out, but for a government this is bad policy.

5. Why Brexit is a Mess

It is clear from the above that all the arguments, the uncertainties relating to the Brexit referendum decision, and the damage they have been causing could have been easily prevented by competent and diligent legal drafting of the Referendum Act and of the Article 50 of the Treaty of Lisbon.

How difficult would it have been for the drafters of the Referendum Act to add a clause, “The decision of the Referendum is binding and, if the decision is leave, should be implemented as follows …”, or ”The decision of the Referendum is purely advisory and, if the decision is leave, should be presented to the House of Commons within 2 months of the decision to be confirmed or rejected following Parliamentary vote …”?

Why has it not been done?

Was it incompetence? They have no clue what they should be doing? Should Britain be governed by such incompetent individuals?

Or was it negligence? They do not bother to make the effort, because they believe that they can get away with anything? Like Tony Blair who believes that he can only be judged by History? Should not those in government be held responsible for the results of their actions?

Can the present government sort out the Brexit Mess? And, if it can't, is it fit to govern?

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