The three steps that mean Brexit may never happen
The established order in any society can sometimes be wrong-footed, but they are usually not wrong-footed for long. Genuine revolutionaries know this, and they act quickly to take full advantage of any temporary advantage. Soon, however, the established order will regroup and refocus, with renewed determination.
The generally pro-EU political class in the United Kingdom has certainly had a fright. They were not expecting to lose the EU referendum. British political leaders were so confident of victory they even casually said that the people’s decision would be implemented “straight away”. And now there is a crisis, but only for a while.
Already the un-codified (and some would say “unwritten”) constitution may be saving the pro-EU political class from their own folly and complacency. The referendum was never binding in law (as this law and policy blog pointed out nine days before the vote). Indeed, the referendum had little legal – as opposed to political – significance. It was a glorified consultation exercise. The real decision has to be made afterwards, as a distinct legal act. This is the decision envisaged by the now-famous “Article 50″ – the EU treaty provision which deals with member states wanting to leave the EU.
The prime minister David Cameron was expected to make that decision immediately, on the day of the result. But he did not. He has left it to his successor to make. This deft uncoupling of the referendum result from the formal decision to quit the EU was significant. In my view, it will become the first of three steps the still pro-EU UK government will take to delay Brexit – and perhaps will delay it so long that it never happens.
The reason the government may get away with this manoeuvre is because the leaders of the Leave campaign either did not expect to win or naively thought winning a referendum would be enough. In either case there was no plan: no notion of any follow-through. And so when the government became wrong-footed nothing was done. They had won the Referendum Battle, but they did not act swiftly to also win the Brexit War.
Unless a sincere Brexit campaigner wins the Conservative leadership election and becomes the next prime minister, the UK government can be expected to now take three steps to slow down the Brexit process in the hope (and perhaps expectation) that it does not happen.
The first step has already happened: Mr Cameron snapped the tie between the referendum result and the Article 50 notification.
The second step will be when the government says that the form of the decision will require some form of parliamentary vote: either a resolution or a motion, or even a fresh statute. Views vary among legal pundits on whether this is strictly necessary — my view is that it is not, and if the prime minister and cabinet decided on referendum day to make an immediate notification, no court would have quashed the decision or injuncted him from making the notification. But it is a convenient view for a procrastinating government to adopt, and the result of any parliamentary vote cannot be taken for granted by leave supporters. Few members of parliament or peers support Brexit.
The third step will be the proposal of preconditions before further action. Many will remember Gordon Brown’s “five tests” for UK to join the euro (which were never tests in any real sense, but that detail was not important). Already contenders for the Tory leadership, such as Theresa May, the home secretary, are talking of situations being right and that things will be done when they are good and ready. This vagueness will no doubt shortly convert into more formal terms. After all, this would only what any responsible government would do before taking ever such an important action.
None of this is to say Brexit is impossible – any pundit who claims an event will not happen will usually be wrong – but it certainly becomes less likely as time passes. And unless Leave create another moment of opportunity – another wrong-footing of the established order – so as to force through the required Article 50 notification, then it may not happen at all.
David Allen Green writes the law and policy blog at FT.com