Why Brexit might not happen after all

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An increasing number of politicians at home and abroad are asking if there is a way back from Brexit for Parliament.

With unusual candour, US Secretary of State John Kerry this week offered a glimpse behind Whitehall’s Brexit curtain by revealing that David Cameron felt unable to “start negotiating a thing that he doesn’t believe in”. Mr Kerry added that in any event the Prime Minister “has no idea how he would do it”.

Washington’s chief foreign envoy, who was in Downing Street on Monday, is one of a growing number of voices at home and abroad who are openly questioning whether Britain will ultimately sever its ties with Brussels despite the referendum vote.

With senior Conservatives such as Lord Heseltine calling for a cross-party group of MPs to “rethink” the vote and Lib Dem leader Tim Farron pledging to fight the next election on a pledge to halt Brexit, just what might be the options for, as Mr Kerry put it, the Leave decision to be “walked back”?

Parliament

With a majority of MPs – and an even higher proportion of peers – in favour remaining in the EU, Mr Cameron’s successor will face the thorny problem of forcing the laws that enact Brexit through a legislature that is instinctively and fundamentally opposed.

The opportunities for delay using parliamentary procedure are myriad and the Palace of Westminster could also take the view that the referendum was only “advisory” and thereby need not be enacted.

Such a scenario is, however, deeply unlikely given that, for better or ill, the democratic will of the British people has been clearly – if somewhat narrowly – expressed.

Instead, since the instrument that keeps Britain in the EU – the 1972 European Communities Act – must be repealed to enact Brexit it is more likely that MPs could vote to set conditions on any deal with Brussels, such as the retention of access to the single market, thereby tying the Government’s hands to keeping Britain in the bloc in all but name.

Article 50

Debate continues to rage about the precise prescriptions of the Treaty of Lisbon’s “divorce clause” – including whether or not it is “irreversible” once invoked. The expectation in Brussels is now that whoever is the new Conservative leader and prime minister will hit the button on the two-year negotiating process once in office in September. Britain may yet try to secure a deal without Article 50 on the basis that the clause places it in a fundamentally weak negotiating position. But it may also be politically and even legally impossible to trigger Article 50 without the approval of Parliament, handing it an effective veto.

Second referendum

Beyond procedural obduracy, the second and more plausible set of scenarios plotting a way back from Brexit depends on securing a fresh mandate in the event that public opinion swings away decisively from leaving the EU. Given the close margin of victory in the referendum, it may well be that whoever is prime minister feels obliged to put whatever severance deal emerges to a second plebiscite. A compromise preserving some form of access to the single market while tweaking the terms of freedom of movement would be likely to pass. But quite what would happen were a second vote to reject such a deal is unclear.

General election

Although Boris Johnson has intimated he would not seek an early election if made Tory leader, some believe that any new premier would have to seek a fresh mandate before 2020. In this scenario, Labour, increasingly likely to also be under a new leader, could explicitly stand on a pledge to reverse Brexit, possibly on the basis of a new deal on EU freedom of movement. Democratic honour would then have to be satisfied with a second referendum, though any deal would probably be reliant on EU leaders making concessions that they would in all likelihood be loath to grant.

Scotland

First Minister Nicola Sturgeon has already made it clear that she will take all and any steps necessary to prevent Scotland being dragged out of the EU against its will. The Scottish parliament would have no formal veto over Brexit. But by convention Westminster seeks the approval of the devolved administrations for changes to law that affect them, including the removal of the clause which requires Scotland, Wales and Northern Ireland to abide by EU law. It is still not a veto but it leaves open the possibility of the sort of almighty constitutional mess that could stop Brexit in its tracks.

*This article first appeared on our sister site inews.co.uk