The Lib Dems are right – revoking Article 50 is a winning proposition

phil syrpisThe Lib Dems are right to have promised to revoke Article 50, writes Phil Syrpis (University of Bristol). Revocation would ‘make it stop’ – an appealing proposition for those weary of Brexit and who want to focus on domestic politics. Labour should follow suit.

It now looks as though the UK will be heading towards a pre-Brexit general election. Notwithstanding the damage which Boris Johnson seems to be inflicting on the Conservative party and on the UK’s creaking constitution, opinion polls indicate that he might well win. If his plan really is to establish a narrative for a pre-Brexit general election, in which he could cast himself as the man of the people, sticking up for the UK in the face of the intransigent EU and the remain establishment (as I argued here in July), it may be that – contrary to appearances – all is going well for him.

Lib Dem leader Jo Swinson. Photo: Liberal Democrats via a CC-BY-NC-ND 2.0 licence

The political debate has focused on the timing of the general election (and in particular on the benefits for the opposition of forcing Johnson to break his 31 October ‘do or die’ promise), and on the possibility of electoral pacts and/or understandings between the Conservatives and the Brexit Party, and between the various political groupings opposed to Johnson. This post concentrates instead on the policy pledges, or manifesto commitments, which each of the main parties might make in relation to Brexit. I argue that Labour’s current position plays into Johnson’s hands. As the Liberal Democrats have just proposed to do, moving from support for a people’s vote to support for revoking the Article 50 notification might inject much needed dynamism into the remain campaign.

The positions of the main parties

It is safe to assume that Johnson will campaign to ‘get Brexit done’. He will claim that he is able to get a good Brexit deal from the EU. If that fails, he is prepared to leave with no deal. A notable feature of this plan is that his Brexit will remain stubbornly undefined. He will, much as he has done to date, attempt to portray himself as the candidate who will meet the aspirations of both those who want to leave with a deal, and those who want to leave with no deal.

One part of the opposition strategy will involve shooting down the Johnson campaign. That should not prove unduly difficult. There is very little evidence to suggest that he is close to getting the sort of deal he says he wants. There seem to be no negotiations of substance with the EU. There is no indication that he has understood the difficulties inherent in leaving the single market and customs union, while at the same time avoiding a border either in Ireland or across the Irish Sea. The EU’s negotiating position will not shift just because the UK is serious about no deal. One of the most pervasive myths is that we can leave the EU without a deal on October 31, or whenever the next iconic date happens to be, and that it will then all be over. Of course, it won’t be over. It will just be the start. Our trade and other relationships with the EU and the rest of the world will need to be worked out.

The other, more difficult, part of the opposition strategy involves making an alternative policy pitch to the people. As things stand, Labour’s position is not an irrational one. It is, though, rather difficult to explain to the public. If elected, Labour will negotiate its own ‘better’ Brexit deal. It will then put the resulting deal to the people in a people’s vote. At that stage, it is not clear whether it would back its own deal or remain, although many in the party have already indicated that they are likely to favour the latter.

So were Labour to win power, it would ask the EU for a further extension, and spend a considerable amount of time negotiating with the EU and formulating a referendum question to be put to the people.

The contrast with Johnson’s position could hardly be starker. He will present himself as the man who will get it done, and cast Labour as the party of delay and obfuscation, of ‘yet more Brexit’. He will be on the side of the people. Labour will be said to be trying to manufacture a new referendum to frustrate the will of the people and engineer it to deliver the result they want.

A shift to revoke?

It is easy to see how an electoral campaign based on a long delay and a people’s vote might play into Johnson’s hands. Those who are fed up with Brexit, and who want this all to be over, may be enticed by Johnson’s promise to get it done.

That is why Labour should follow the Lib Dems in campaigning not for a people’s vote, but instead for revocation of the Article 50 notice (as I first argued here in December 2018).
It is a message which, in its urgency and decisiveness, more than matches that of Johnson. He will say that he will get it done. The opposition can say that, within days, Brexit will be over.

Revoke has grassroots appeal. Over six million people signed the revoke petition. Polls suggest that over 50% of the people now support remain. It is almost unthinkable that we might be heading towards a general election which will be dominated by Brexit and that we will not be afforded the option to vote to ‘make it stop’ and enable politics to move beyond Brexit.

Let me try to deal with the arguments against revocation. The first, and most common, criticism is that revocation lacks a democratic mandate. If the case for revoke is made in the context of a general election, in which the various parties campaign on the basis of their preferred Brexit outcomes, that criticism loses its force. A general election affords parties the opportunity to set out what they want to achieve. Just as it is now possible for Johnson and others to argue for no deal (a huge jump from the referendum and the Conservative position in the 2017 general election), it is also possible for opposition parties to argue for revoke.

Second, it is said that only a people’s vote can provide finality, that without a second referendum there will be ‘unfinished business’, and that what started with a referendum can only be ended with a referendum. This strand of criticism overstates what a second referendum can achieve. Let us say that there was a people’s vote, in which either Labour’s ‘better Brexit’ or the Withdrawal Agreement was pitted against remain; and that remain won. Is the contention that Brexiters would accept that Brexit had been settled? Even though their preferred version of Brexit was not on the ballot paper? The reality is that any decision to revoke Article 50, whether or not it is preceded by a people’s vote, would be contested. Revocation would bring the Article 50 process to an end. But there is nothing to stop a future government with a new mandate making a new argument for Brexit. Scottish politics shows us that it is difficult, if not impossible, to put an issue like this to bed for a generation.

If there is a pre-Brexit general election, it will be because there is no majority within the existing Parliament for any of the rival substantive outcomes of the Brexit process (leaving with a deal, leaving with no deal, and not leaving at all). A general election provides an opportunity to elect a new Parliament, in which the arithmetic will likely be different, and in which the policy positions of the various parties may also be different. The stakes could not be higher. It is time for Remainers to have the courage of their convictions. They should use the general election to obtain a mandate for revoking the Article 50 notification.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

Phil Syrpis is Professor of EU Law at the University of Bristol Law School.

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Is Boris Johnson’s Brexit posturing just a power play?

phil syrpisBoris Johnson said the chances of no deal were ‘a million to one’. His government is also actively preparing for it. Phil Syrpis (University of Bristol) argues that the new PM’s true intention is likely to be to hold a general election as soon as possible.

The new Prime Minister, Boris Johnson, has promised that the UK will leave the EU by October 31. His stated aim is to renegotiate the Withdrawal Agreement. Should that be impossible, he promises that we will be ready to leave without a deal on that iconic date. He has assembled a Cabinet, and a team of close advisors who include Dominic Cummings and Matthew Elliott – both, like Johnson and Michael Gove, leading figures in Vote Leave – who support these aims, and who are determined and optimistic that they will be able to achieve them. We will, do or die, they say, realise Brexit.

johnson

Boris Johnson arrives at No 10 on 24 July 2019. Photo: Number 10 via a CC-BY-NC-ND 2.0 licence

It is of course possible that Boris Johnson is true to his word, and succeeds in delivering Brexit on or before October 31. This piece – which builds on a Twitter thread I wrote on July 25 – suggests that the reality may be different. It assumes that Boris Johnson’s principal motivation is not Brexit, but power. It suggests his aim is not to achieve Brexit by October 31, but rather to establish a narrative to enable him to win a pre-Brexit general election. Were he to win an overall majority he would be able, in the new political context, to reconsider his Brexit options. In this reading, the determined pursuit of Brexit – and in particular of a no-deal Brexit – is not the end, but merely a means to the end.

The problems with the stated aim

To begin with, there is very little chance that the renegotiation with the EU will be successful. The European Council decision of 11 April 2019 extending the Article 50 period, in its paragraph 12, expressly excludes any reopening of the Withdrawal Agreement. There is no sign of a ‘solution’ to the Irish border conundrum. And there has never, to my mind, been a convincing explanation as to why a ‘credible threat’ of no deal, forecast to cause significantly more damage to the UK than to the EU, will result in new ‘concessions’ from the EU, whose overriding interest is – and will remain – the protection of the integrity of the single market. It looks as though the renegotiation may be over very soon. It is not difficult to hear the beginnings of a case being made against the intransigent, inflexible, undemocratic, European Union.

And next, the path towards ‘no deal’ by October 31 is by no means smooth. This is for three linked sets of reasons. First, it is likely that there will be strong opposition within the Conservative Party, and within Parliament, to any move towards a no-deal Brexit. Given that his majority looks likely to be cut to 2 after this week’s by-election, Johnson can ill afford any internal opposition. And although the opposition to Johnson is divided, it is united in the desire to avoid no deal (though MPs have missed more than one opportunity to ‘take no deal off the table’). It is far from certain that PM Johnson would survive a vote of no confidence if his renegotiation fails, and he begins to actively pursue no deal.

Second, the delivery of any no-deal Brexit is difficult. We are, both legally and economically, as reports this week from the CBI and the Institute for Government illustrate, categorically not ‘no deal’ Brexit-ready. As the government’s preparedness notices amply illustrate, much of what is needed to ‘manage’ no deal relies on the passage of legislation – and hence Parliamentary support on which Johnson would be unwise to rely – and on coordination with the EU, whose likely first ask will be… a guarantee relating to the divorce bill, citizens’ rights, and the Irish border.

And third, any no-deal Brexit necessarily involves making the abstract Brexit, which won 52% support in the referendum of 2016, into something concrete. Almost inevitably, this reification of Brexit will alienate some of its erstwhile supporters. It has become almost axiomatic that proponents of Brexit fail not just to deliver it, but also to define it: Vote Leave was a deliberately broad church, Theresa May treated us to months of ‘Brexit means Brexit’, and even now, urgent questions about what a no-deal Brexit might entail remain stubbornly unanswered.

The case for a pre-Brexit general election

This all goes to show that leaving the EU by October 31 is likely to be very difficult, both from a political and a practical perspective. It may be that Johnson’s strategy is not to deliver no deal, but instead – having been thwarted first by an intransigent EU, and then by a remainer Parliament (Jacob Rees-Mogg is just the man to ensure that Parliamentary proceedings are presented in a suitably arcane and labyrinthine way) – to be forced to call a general election, in which he can position himself as the champion of the UK and the champion of the people.

If this is indeed his strategy, it is not without risk. But he is in a difficult position, and none of his options are risk-free. Given the timetable, it is likely that he would require an extension to Article 50; something which Johnson has said that he will not countenance. But if MPs conspire to make it impossible for him to deliver no deal – for example if a handful of Tory MPs refuse to support him, or if a majority of MPs supports a vote of no confidence against his leadership – he may credibly be able to say that his hand has been forced. Were an extension request to be made in October, it is of course possible that the EU will reject it, but it is more likely that they would be prepared to grant an extension in order to enable a ‘democratic event’, such as a general election, which provides a (perhaps slim) prospect of unlocking the impasse in the UK, to occur.

The greatest risk for Johnson is of course that he may not win a majority in a pre-Brexit general election. He is vulnerable on the one side from Nigel Farage’s Brexit Party, and on the other, from Labour, the Liberal Democrats, the Greens and the Nationalist parties. Nonetheless, he has reasons to feel optimistic. His pitch – that he is fighting the election in order to stand up to the twin evils of the EU and the remain establishment and achieve a mandate to (finally) deliver Brexit – will mirror that of the Brexit Party. If the Brexit Party continues to poll strongly, he may be able to consider some form of electoral pact with Nigel Farage. If he is feeling confident, he may instead choose to take him on. He also has grounds to suspect that the remain-leaning opposition parties will be divided. Relations between Labour, the Liberal Democrats and the Scottish Nationalists are strained. There is, in addition, no coherent message emerging from the various disparate factions. Some want to deliver a better Brexit; some hope for a people’s vote; only a few are prepared to make the call to revoke Article 50. He has assembled a team which seems well equipped to exploit his opponents’ weaknesses, and to fight – and win – an election. Given the divisions in the opposition, a 30-35% vote share is likely to afford him a majority in the House of Commons.

If he wins, he acquires the ability to reconsider his Brexit options. The problems associated with Brexit will remain the same, but the political context will be much changed. He will, at that stage, be in a position to reveal, or perhaps to begin to formulate, his true intentions. He is brazen enough to resile from inconvenient promises. He may opt for no deal or he may, for example, opt for leaving on the basis of the current withdrawal agreement, with a Northern Ireland-only backstop, aiming to secure a free trade agreement between GB and the EU. He will be guided by the possibilities which the new Parliament creates for him. His desire will be to move beyond Brexit, and – for better or worse – to deliver his vision for the UK.

This account may of course be wrong. Johnson may genuinely do all he can to deliver Brexit by October 31. He may succeed. If he fails, this may become his ‘Plan B’. And it may play rather better for him than a successful ‘Plan A’.

This post represents the views of the author and not those of the Brexit blog, nor LSE.

Phil Syrpis is Professor of EU Law at the University of Bristol Law School.

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