Thursday, November 3, 2016

Brexit: An analysis of the UK court's ruling from a European POV

So the UK Parliament must vote on whether the UK government triggers Article 50 or not. That seems rather straightforward. Either it thinks that leaving the EU is a good thing or not.

Yet this is quite more complicated and disturbing as far as the rest of Europe as well as Europeans in the UK are concerned.

Let's first see what the Court said:

The Lord Chief Justice, Lord Thomas of Cwmgiedd, declared: "The government does not have power under the Crown's prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union".

The three judges ruled there was no constitutional convention of the royal prerogative being used in legislation relating to the EU. That triggering Article 50 would fundamentally change UK people's rights and that the government cannot change or do away with rights under UK law unless Parliament gives it authority to do so.

Based on that, one would think that MPs and Lords would say a pure Yes or No.

Yet it has been interpreted as a need for government to present its negotiations plan.

Let's see what the leaders of the two main opposite parties said:

Labour's Jeremy Corbyn : "This ruling underlines the need for the government to bring its negotiating terms to Parliament without delay. Labour respects the decision of the British people to leave the European Union. But there must be transparency and accountability to parliament on the terms of Brexit."

Why on Earth should the government reveal its negotiations terms, to weaken them? The decision should be about Yes or No to triggering Article 50.

Liberal Democrats' Tim Farron: "Ultimately, the British people voted for a departure but not for a destination, which is why what really matters is allowing them to vote again on the final deal, giving them the chance to say no to an irresponsible hard Brexit that risks our economy and our jobs."

The reactions of both Corbyn and Farron are troubling from a European point of view.

a) Both seem to choose to ignore that the ref was non binding. They are conveniently yielding to the political pressure placed on them by Theresa May (side note: good for her). As Remainers point out I) the ref was non binding II) the decision was 52-48 not 65-35 III) much of the population did not vote.

At the end of the day, all that is the UK's business. What those of us not British in the EU have a say in is:

b) What Tim Farron says involves the rest of the EU. As I pointed out in a previous post, he seems to be under the impression "Europe" is going to wait for the end of negotiations and give the UK the chance to change its mind and remain in the EU if it the UK does not like the Brexit deal! Does he even consider the precedent that would set for other members?

As a non British analyst of UK affairs (and European ones), it seems to me that:

1) Once Article is triggered, Brexit is Brexit (as May says). The choice set becomes what type of Brexit. If MPs give it the go ahead, Brexit is Brexit, no turning back.

2) The only way to avert Brexit is for Parliament to reject triggering of Article 50, clearly and directly, have a second referendum, this time binding and well informed, and decide, for good, for all sides concerned.

There are no trial separations and wait and see how the divorce negotiations work out. The UK has been a complaining "spouse" in the "marriage" with the EU for decades, the ref was not the start but the end.

It is maybe up to the 48%, the Remainers, to explain these facts of life to MM Farron and Corbyn.

The role for us in the rest of the EU is to make clear, here and now, that once article 50 is triggered, Brexit is Brexit and there is no turning back.  Maybe in 15-20 years, but not in two.

PS. Some people I have spoken to have suggested that a No vote by the Parliament and a new ref would lead to civil unrest and that the drafter of Art 50 has said that is reversible.

a) About Art 50: This is not a law that carries an explanatory memorandum. What matter is what the text says. And it does not foresee untriggering. Of course the ECJ will have the final say if need be.

b) About unrest:  If in 2 yearrs there is 60-40 Remain ref the 40% will not cause unrest then? People are afraid to speak a foreign language in the street, the damage has been done.
Tbh I think Brexit is by now a done deal, the best scenario is soft Brexit. Not what we would have wanted but events have proved too many in the UK don't want the EU or foreigners. Sadly. Very sadly.

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