Thanks to a ruling in London’s high court, the UK appears to be moving towards making a decision about what Brexit means in a more democratic way.
The flaws of the first EU referendum are well known. Despite being only advisory in nature, it was immediately used by the incoming prime minister as a binding mandate. Theresa May was not elected as prime minister and her party was not elected on a Brexit programme. Yet she has tried to impose her own version of a Brexit programme on voters, largely bypassing parliament.
What’s more, that programme currently appears to be based around the desire for a “hard” Brexit, whereby the UK exits the European single market.
That is unlikely to be the expression of the will of the majority of the British people. Given how tight the result of the referendum was, if even a small minority of Brexit voters prefer the idea of soft Brexit (by remaining in the single market), then they together with the Remain voters constitute a strong majority against a hard Brexit.
A second vote
Crucially, the referendum has only advised in favour of some sort of Brexit. It did not allow citizens to decide which type of Brexit they want. The high court has decided that parliament must be involved before the government can trigger Article 50 to begin Brexit negotiations with the EU.
If that ruling is upheld by the supreme court, parliament will probably adopt a bill prior to triggering Article 50. In that bill, it may set out some substantial choices about which type of Brexit the government aims to propose in its negotiations with the EU.
At the same time it can try to set out procedural steps for involvement during the negotiation stage. That might include a requirement to hold a referendum on the final deal reached with the EU. That gives British voters the right to confirm whether the final deal reflects the type of Brexit they wanted, and the chance to vote to remain in the EU if it is not.
Giving British voters that opportunity is ever more important as it is increasingly likely that negotiations with the EU will result in hard Brexit.
The composition of May’s cabinet and Brexit office, the rhetoric of the Conservative party conference and the hard line the government is taking on immigration have frozen most of what was left of EU goodwill towards the UK. For the EU, access to the single market without respecting the free movement of people is unacceptable so the UK will not be able to stay in the single market without shifting its stance on immigration – as Donald Tusk, president of the European Council has already confirmed.
May’s timing to trigger Article 50 in March 2017 further increases the chances of a hard Brexit. France and Germany will be busy with national elections so the European Commission will probably lead negotiations.
According to the European Commission’s chief Brexit negotiator, Michel Barnier, the agenda of the Article 50 negotiations will be limited to four topics: outstanding financial liabilities such as regional funding and EU staff pensions; the status of EU nationals in Britain and British nationals in the EU; the administrative disengagement, including the future of EU agencies based in Britain; and “special situations” such as arrangements for Northern Ireland and Gibraltar.
If the EU sticks to this position, the negotiated agreement will be a “Hard Brexit minus”. While the UK talks continually of trade deals at the moment, the reality is that this won’t be on the agenda until after Brexit. Article 50 talks will just be for defining the divorce settlement. There will be no deal on future trade relationships.
So, even with a “Brexit agreement” resulting from Article 50 negotiations, the UK will fall back under WTO rules, at least until new trade relationships are agreed, which will take years to negotiate and will require approval by all national parliaments. That can be a long and difficult process – as the recent history of CETA illustrates.
By organizing a referendum on the Article 50 deal with the EU, the British people would finally be given a real choice on what is actually on the table, namely “Remain” or “Hard Brexit minus”, instead of the false choice between “Remain” and “pipe dream” offered by the first referendum.
This article was originally published on The Conversation.