Here’s what Boris Johnson wrote back in February:
There is only one way to get the change we need, and that is to vote to go, because all EU history shows that they only really listen to a population when it says No.
He may have had in mind the second Irish referendum on the Lisbon treaty which followed after the Irish voted ‘no’ in the first – and secured further concessions from the other Member States.
“Say ‘no’ for a better ‘yes'” isn’t bad as a negotiating ploy. But it’s not much of a campaigning slogan. The Leave camp ditched it for ‘Take Back Control’.
And the rest is recent history.
It wasn’t only Boris who saw the attractions of a second referendum. So did Nigel Farage. Speaking to the Mirror he said this:
“In a 52-48 referendum this would be unfinished business by a long way. If the remain campaign win two-thirds to one-third that ends it.”
It’s fair to say he meant a 52-48 win for Remain rather than that very vote for Leave. But, you may think, what’s sauce for the Goose…
But could we have a second referendum after a Leave vote? And what might it take to bring such a thing about?
Let me begin my task by clearing away a little undergrowth.
The referendum result creates a democratic imperative for the UK to depart but, as the great legal blogger David Allen Green has set out here, it doesn’t create a legal one. The legal one follows not from the referendum result but from our decision to trigger the exit procedure in Article 50 (which I turn to below). Some have mooted that our Parliament could simply ignore the referendum result. Although that may be right in legal theory I don’t, myself, consider it a practical likelihood. But, what democracy has commanded shall be done it can also command to be undone. Or, to put the matter less grandly, a second vote, this time for Remain, would undo the democratic imperative of the first.
So I see a refreshed democratic mandate as key.
How might such a thing be delivered?
I can see two routes.
First, were we to have an early General Election fought by one party on an explicit Remain platform and were that party to prevail it would, I think, amount to a ‘refreshed democratic mandate’. The electorate would have spoken such that the result of the Referendum would be superseded.
Second, even without such a General Election, Parliament might decide that circumstances had changed sufficiently, as in Ireland, to put the proposition to the electorate again.
What would make these routes more or less likely?
The General Election route requires that three things happen.
First, there would need to be a General Election. The Fixed Term Parliament Act 2011 requires that (absent a no-confidence motion in the Government) the motion for an early general election achieve a two-thirds majority in the House of Commons. But if the Government took the view that such was desirable – and several Brexiteers have already mooted such a thing – it is unlikely that the Labour Party would stand in its way.
Second, one or other side would have to stand on an explicit Remain platform. That would not be the Conservative Party. And such also seems inconceivable under Labour’s present leadership. Writing to Labour members on the 24th of June Jeremy Corbyn said this:
After yesterday’s European referendum, politicians of all parties must listen to and respect the vote. Millions of voters have rejected a political establishment that has left them behind. Communities that have been hardest hit by government cuts and economic failure have voted against the status quo.
This is not the language of a Leader who wishes to Remain. But Jeremy Corbyn is to face a leadership challenge and the overwhelming majority of the Parliamentary Labour Party – and indeed its voters – support Remaining. Were a new Labour leader to be selected, Tim Farron’s pitch for a pro-EU social democratic coalition might fall on fertile ground. And, of course, Nicola Sturgeon has made plain her intention to keep Scotland in the EU.
And, third, that Remain platform would need to win. You will have your own views about the likelihood of that prospect. But Luke Baker has referred to the possibility of Buyers’ Remorse about Leaving. Not even a day in there is much anecdotal evidence of this. And if the Project Fear predictions of the poor, derided “experts” come to pass it is possible that the population might come to welcome an opportunity to Remain.
The other possible route to a second Referendum is much simpler. Again, it has three steps.
First, it would require a recognition on the part of the EU that the concerns of the local electorate be met with concessions. The public could, I think, only sensibly be confronted with the In/Out question afresh if the circumstances had changed since last it was asked. This was, in effect, Boris Johnson’s “Say ‘no’ for a better ‘yes'” strategy. This has, in fact, happened on three occasions: Ireland (twice: Lisbon and Nice) and Denmark (once: Maastricht).
Second, there must be a desire on the part of the Government of the day to deliver a second referendum. This will in large part be contingent on whether the public’s attitude to the prospect of Leaving sweetens or sours: Buyers’ Remorse again.
An EU contemplating an existential crisis of its own in consequence of the UK’s likely departure – perhaps facing demands from other Member States for referendums of their own – might increase the pressure on our Government by dangling concessions directly in front of the UK public. You might even think that this was Wolfgang Schäuble’s intention when he talked of the UK having “associate member” status. You might also read into Boris Johnson’s comments of Friday morning a desire to keep this door open:
In voting to leave the EU it’s vital to stress that there’s no need for haste, and as the Prime Minister has just said nothing will change in the short term except work will begin on how to extricate this country from the supranational system. As the Prime Minister has said there is no need to invoke Article 50.
Any or all of these circumstances could create huge public pressure for the question to be put afresh. Pressure no sensible Government could ignore.
Third, a renewed Referendum would have to be won. But, as this rather elegant piece by Ece Özlem Atikcan explains, they do tend to be.
Of course, had we left in the meantime, all of this would be academic. And the timing is important. Too soon and we may not have time to see Buyers’ Remorse. Too late and it may be difficult to derail the process. Again, a close reading of Mr Johnson’s comments suggest a sensitivity to the possibility of a golden moment.
If you assume this golden moment arises before we have triggered Article 50 (and, for reasons I don’t want to get sidetracked by why I regard as hollow the threat to treat the Referendum result as triggering Article 50), we can simply ignore such conditions as it imposes. But what if you assume that, under pressure from an EU with problems of its own to resolve, we have already triggered the process?
Were you to read Article 50 as you might a piece of domestic law, you would note it has no reverse gear. Once you start the process, you’re on the way to the exit door. This is a point that David Allen Green has made here. But for myself I have little doubt that the process can be abandoned once started. As a general proposition, in my experience, EU law bends much more to pragmatism than does English law. This was also a point made by Professor Derrick Wyatt QC in his oral evidence to the House of Lords Select Committee on the European Union. And Sir David Edward, former judge of the European Court of Justice, giving oral evidence on the same day said:
It is absolutely clear that you cannot be forced to go through with it if you do not want to.
Perhaps we might all feel differently if Article 50 stated explicitly that a member state, having triggered the Article 50 process, cannot abandon it. But it doesn’t; it’s just silent on the issue.
So. Let me sum up.
Form your own view, but I think Buyers’ remorse is likely. I think the electorate will come quickly to appreciate that the ‘look behind you’ of the Remain campaign did not warn of an approaching pantomime villain. Rather, there is a very real likelihood of a very meaningful deterioration in the lives of a great many people. The fruits of victory may quickly turn to ashes in the mouths of Brexiteers. It is, I think, likely that the EU will seek to engage the UK public directly – and I very much hope they do. And, although here I speculate, I do sense an ongoing ambivalence on the part of Boris Johnson to the creature he has delivered. Where lies his place in history on delivering a disaster to a country he loves? Mix these ingredients together and you have the recipe for a refreshed democratic mandate for Remain.Follow @jolyonmaugham
Dare we hope?
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Is there any way we can get this message out to politicians? I’m desperately sad that I voted to leave now I reflect on it, as do many of my family and friends.
I just wish we could have that referendum again.
Keep tweeting it out. Give it a push tomorrow. Lots of Labour politicians – and a few Tories – follow me on twitter.
You are clutching at straws but you could be proved right. This weekend’s meeting of the six founder member states may prove crucial. The EU had a chance to ward off Brexit through promising meaningful reform but rejected that (and leading figures still do).
Those second referendums in Ireland and Denmark were ‘approve the treaty’ ones, not ‘in/out’ ones.
You can say ‘Look! A better treaty!’ a lot more easily than going ‘You know you voted to leave, you didn’t really mean it, did you?’
Something like this may be tried. Here’s hoping. I’ve had fleetingly optimistic hopes like this, but I listened to Johnsons’s speech and it didn’t feel likely. And, God alone knows where the Labour party is heading. Still, optimism and a plan is important. Not much evidence today, but tomorrow? Here’s hoping.
On the basis of the reported reaction from within Europe this evening, from other member state leaders; MEP’s; and Brussels, this seems an unlikely scenario. What is coming across is that many key actors are totally pissed off at a personal level with those they have to deal with at the same levels here in the dis-United Kingdom.
A typical example was a Polish MEP interviewed on channel 4 news tonight who having completed the interview in an objective and professional manner added a prologue after the interview concluded telling the interviewer that ‘Polish airmen would never come to the aid of Britain again’, adding his father had flown for Britain in WW2 and he had known many Poles who who had fought for Britain. His parting shot was along the lines of not any more.
Key players interviewed were scornful of any suggestion of waiting to complete the divorce over two years and scoffed at the notion of going along with Boris Bunters idea of waiting a further two years before triggering article 50. They are not even prepared to wait till Cameron is replaced as they want to start next week at commence of business Monday morning to complete the ejection ASAP in order to avoid contagion.
Euh … And the rest of the EU? Just hangs on waiting for the UK to sort itself? You should have worked all that out before. Get a grip!
Difficult to be hopeful right now. Especially up North. But thank you.
Really good analysis Jo. But it must be wishful thinking. On the first route, will any new Tory PM willingly push for an election when they have nearly 4 years of leadership available to them? Calling for an election expressly to give the UK an option to change its mind on a referendum that brought one to power requires a level of self-sacrifice and commitment to the common good that’s not typically displayed by senior politicians.
The second route feels even less likely. The main incentive of European leaders now is to discourage others from following Britain through the emergency exit, and their main way of doing that is making exit look and feel as painful for the exiteer as possible. I can’t see any reason they’d offer us more concessions now. Why would they, when we’ve just given up the last leverage we had, willingly and for no particular benefit?
I agree with you that there’s going to be people regretting what has happened. However, I fear not enough. It seems many decided to leave on a basis of immigration.
I also see, from the EU point of view a question of saving face. By bowing to UK demands which will make them seem weak. I cannot see a second referendum returning a much different result than what we have now. That’s speaking as a person that voted to remain in the EU.
I am afraid the EU will make an example out of Brexit. They have an opportunity to do so and to quell the populist uprisings causing uncertanties in the EU member states. They will give the UK a bad deal that will be devastating for the UK and they will be able to wash their hands afterwards and point to the fact that it was a democratic decision in the UK. They might even initiate some internal reforms in order to further strengthen groups of voters wanting to remain inside the EU in the member states. That together with the voters of member states front seat view to the devastation across UK economy will put the final nail in the coffin for exiters across the continent. All doom and gloom and rather cynical I know, but I am sorry to say that this is what I believe would happen.. The EU will be marginally better of in the long run but the UK will suffer. Maybe in 10-15 years time the EU will be ready to approach the UK and use some flexibilty in it’s laws to give the UK better deals, but not untill the dust has settled.
Mr Maugham – please, please lets try to do this. I am heartbroken. I am a European. I want to remain so.
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This does seem to me to be clutching at straws and to be underplaying the strength of the rejection of conventional political and economic wisdom that underlies the exit vote, slim though the result was arithmetically. We are debating in a different world to that of most of those who voted to leave.
The demand by senior EU figures that Britain must start withdrawal negotiations immediately seems to me to underline their arrogance that has in no small part contributed to anti-Eu feeling. In effect they are saying they have the power to dictate constitutional procedures within they UK as they please. Shades of Greece. Much as I dislike the man, I can only hope that Boris Johnson, assuming he will be in charge, will have the stubbornness to stand up to EU negotiators.
This is a decent idea. However, the Swiss example of a close vote against joining followed by two massive defeats for proposals to join is less optimistic.
We don’t get what we want and like the EU and SNP we want a neverendum until we get what we want. Sour losers to democracy.
Try reading the Treaty of Westphalia 1648 when sovereignty of the nation state was established and each state was allowed to choose it’s religion without interference from the Vatican which cause religious wars for 30 years. Get the EU to fund a Remain campaign under a sovereign nation.
Maybe like Syria or Libya you should get funding from Saudi and Qatar and the US neocons to destablise the UK government. That worked well.
…but as the EU is already calling for an *immediate* activation of the process?
What would you do if you wanted to signal to wavering Brexiteers that this stuff is serious?
Farage’s quote is priceless. I hope someone has put it to him since yesterday.
There must be fair prospects of a vote of no confidence in the House of Commons to trigger a general election in the next 6 to 12 months – the Conservatives have a majority of only 16, and there may be at least 9 anti-Brexit Tory MPs who would rebel (or at least 17 who would abstain) against an explicity Brexit leadership.
I have little doubt that the EU would agree a fudge to permit the UK to remain, if it changed its mind during the Article 50 process. Query what the cost of that agreement might be.
Perhaps also worth adding that the UK is unlikely to get the favourable terms it enjoys now (such as the indefinite “transition” of its VAT zero rates, and the budget rebate) if it leaves the EU and then decides to rejoin at some point in the future.
@Thomas Harvey “I’m desperately sad that I voted to leave now I reflect on it, as do many of my family and friends.”
Funny how many of these entirely unprovable claims are now being made.
@Dave Hansell “A typical example was a Polish MEP interviewed on channel 4 news tonight who having completed the interview in an objective and professional manner added a prologue after the interview concluded telling the interviewer that ‘Polish airmen would never come to the aid of Britain again’”
Yeah he may want to open a history book. Also ‘Boris Bunter’ – very good, personal abuse worked so well in the referendum.
The sight of a wealthy QC scheming to overthrow the vote of essentially poor and ignored Labour voters and calling in aid the Labour Party is almost tragic.
Simon, I tend to agree with you and N J Dyson about what is happening here. The proposal is not far short of an attempted coup. Yesterday was a clear democratic decision on a high turnout after the London Bubble threw the kitchen sink at preserving the status quo……which works overwhelmingly in its favour. There was also no dodgy voting system effectively disenfranchising large swathes of voters…..unlike a General Election. Some of the best writing on the underlying issues has been by John Harris in the Guardian who is no fan of Brexit. We would do well to heed what he has to say.
I’ve made a petition – will you sign it?
Click this link to sign the petition:
Take account of the wishes of those who will have to live longest with EU result
Following the EU referendum on 23 June 2016, the UK voted to leave the EU by a narrow margin. However, voters aged under 45, who will have to live with this decision for the longest time, showed a desire to remain.
As the referendum is only advisory and the result is not legally binding, I ask that, as the result was close, the government take into account the wishes of those who will have to live longest with the decision and not invoke Article 50 of the Lisbon Treaty.
Enlightening and thought provoking as ever. Many thanks Jolyon.
Thanks for giving a moment of hope, but this won’t fly. People are still failing to look at this from the EU’s point of view. They are still talking as if uk can lay down terms of an agreement. There is no upside for the EU in allowing uk any renegotiation. The EU is duty-bound to punish uk, they have no other sensible option. It’s simple self-defence. I doubt very much whether membership of the single market will even be on the table for us. I wouldn’t have BoJo’s job for anything.
Within the UK the second alternative may look not only attractive, but also possible (thanks, confirmation bias). From the EU perspective I see it impossible. The UK having second thoughts? Let them fix their own mess. We can help in being understanding, but not in making concessions. As others explained, the precedents of Ireland and Denmark do not apply (to move on we need consensus, and negotiate until we get it. Not the case here).
I voted leave. Not because I’m an uninformed and stupid racist as some of the bilious generalisation I’ve seen over the last 24 hours, but because I’ve seen the EU slowly expand from an economic bloc into a large body intent on supranational integration. I don’t want that and my vote was for that reason.
When Cameron proposed changes, with the weight of the upcoming referendum, he was only given watered down change. Lip service.
And Juncker’s comments a couple of days confirmed my suspicions: voting to stay in the EU would give them full mandate to continue and we would have little opportunity to change the EU from within.
So, I hope Boris is playing a long game, as that would be the best chance to drive change whilst achieving a more United Kingdom and Europe.
Dave McManus (@EllDave) – I can understand your annoyance, but fact is that most young people did not vote. I have seen figures that suggest that only about 45% of U25s voted, compared to nearly 80% of 60+s.
Fact is that if U25s and 25-34s had voted in the same numbers as the 60+s the result could have been very different.
But – more than that – we only go to have a referendum because U25s/25-34s had not voted in previous general elections in the same numbers as their elders. The current government is only in place because too many young people sat on their hands.
If you do not take part in democracy you cannot complain about the result.
I guess it comes down do democracy versus the legal view. David Cameron had the opportunity to establish, say 60:40 as a minimum requirement for the Referendum – but he didn’t – the outcome therefore stands. While I voted to leave I certainly didn’t do so on the basis of immigration, and I’m sure I wasn’t alone.
I appreciate there is concern over “what happens now?”. In terms of exit options – I suggest you read the Flexcit Plan, or its summary The Market Solution, both viewable and downloadable from eureferendum.com. This is the EU Exit Plan which was offered to and rejected by the Official Leave campaign, but which is required reading by the Civil Service in contingency planning. It took 2 years of navigation of the labyrinthine EU Treaties to write, and has been maintained and updated for the last 10. It offers an accurate review of the exit options, recommends a pragmatic adoption of the EFTA/EEA as a first step on a staged withdrawal from the EU, and offers reassurance to the financial markets. Of course this option retains Freedom of Movement, however EFTA/EEA provides more granular control plus a true “emergency brake”, which has been used by Liechtenstein since the late 1990s.
To echo politicians and media throughout the campaign by using cliches – “The die is cast”, so stop your self-serving political posturing and “get your noses to the grindstone”
I voted remain, but I would certainly vote leave on a second referendum. Whatever the consequences of our choice, democracy and its procedures have to be respected. The people have voted to leave, so Article 50 must be invoked.
Many people in this country, particularly the white working classes voted to leave due to their anti-immigration beliefs. I believe many of them will be opposed to immigration regardless of origin. By not leaving the EU, we will be sending these voters to parties of the extreme far-right.
In order to “take back control” there should be some choice over what Britain is heading towards, not just a choice of what it’s heading away from. The logical time to have a referendum on what we’ve actually voted FOR, not what we’ve voted AGAINST, would be after we know who the next Prime Minister is, and before Article 50 is invoked, which is the legal commencement of the withdrawal process. At this point we should have at least some vague idea of what these new arrangements might look like. It should also be clearer how the economy is going. At that point in time the ballot paper should include:
1) Do you want to accept the package of treaty changes put forward by the Government?
2) Do you want to remain a member of the EU?
This is not fantasy. The referendum decision is not legally binding. A majority of MPs don’t support the decision. The Leave leaders have already started backtracking on sentiments expressed before the referendum, on the NHS and on immigration. It’s too early to say what will happen to the economy. This result also begs the question of how decisions can be made if Parliament – which is meant to have supreme legal authority in the UK – do not agree with the basic premise of leaving the EU.
I’m really sad about the result of this referendum, but it’s democracy at work, with all its flaws.
What now? Well, for now nothing changes, since triggering art 50 will keep UK in the EU for 2 more years.
What I think is that now the EU is in a dominant position, and that the UK has lost the power to set conditions. The agreement achieved in Feb 2016 is already gone and, in my opinion, now it’s just: 100% in or 100% out. No more space for extra wishes and victim complexes (this is how it looks from here).
The UK may keep the Pound, but little else.
Ironically, voting for Leave the Brits may have tied themselves even more to the EU.
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On ‘buyer’s remorse’, I am noticing the fact that about thirty hours on leading figures in the Leave camp have either started backtracking, or have basically disappeared from public view.
Johnson – who is not normally shy of a spot of publicity – has made no public appearance since his press statement yesterday morning. Neither has Gove.
This is not the behaviour of a victorious campaign, or of a leadership of said movement ready to take the opportunity to seize the moment to take Britain out of the EU and into it’s glorious future.
I suspect that Johnson and Gove in particular are petrified about what they’ve unleashed. And if they are, then what should we be thinking right now?
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You seem to be the king of wishful thinking, living in Lalaland rather than the wasteland of Brexit. None of the above is gonna happen. The bastards who got us into this hole will not stop digging any time soon. All the rest of us can do is stand by and watch.
If it’s about the other EU countries sending a message, there’s one far easier way.
Let Boris (or whoever) prevaricate on Article 50 while our economy tanks, then a second ‘Remain’ referendum would allow us to put the red button back in the box without ever having pressed it.
Of course we’d have to make some concessions (bye-bye rebate), but the terms would be better than any Associate Nation status, and the other Nationalist groups around Europe would have seen the chaos and been duly chastised.
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Here’s something that might actually work within the arcane rules of Parliamentary Democracy, provided the numbers stack up. There are, according to http://www.bbc.co.uk/news/uk-politics-eu-referendum-35616946, only 156 Leave MPs in the House of Commons (136 Con, 10 Lab, 8 DUP, 1 UKIP, 1 Other).
Only Conservative MPs are currently honour bound to give effect to the result of the referendum, since MPs that belong to all the other parties were elected on the basis that there shouldn’t be a referendum anyway – you shouldn’t respect the choice the electorate has taken if you were elected to oppose the choice even being given to them in the first place.
Of course the 185 Remain Conservative MPs (who were elected on a manifesto pledge to hold the referendum) cannot really, as things now stand, vote down the result, however much they might want to. But they have two options: firstly, they could resign their seats and stand again on a pledge to oppose the result, in which case, if elected, they have a new mandate from their own constituents to oppose the ref result. Or, if they haven’t got the stomach to contest a by-election, they can send in a sick note when Parliament votes on the matter.
By my calculations, ALL Conservative MPs voting together with Leave MPs from other parties would have a majority of 56. So that would require 57 sick notes or 29 successfully refought by-elections to throw this out. It’s doable, but MPs are timid creatures and pressure needs to be applied to them individually.
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The British public has, to its surprise, voted to shrink the UK economy, export its younger, educated people (to the benefit of the US, Australia, and others) and likely begin the breakup of the UK itself, all because of a tiff amongst Tory toffs, plus old white folks who are afraid of the monsters in their heads with darker skins, weird names, and funny accents. The EU is furious, and will make an example of Britain to make it clear to other would be secessionists just what the price of exit will be. The only way out is a very public, very humiliating climb down that will be hard to manage and expensive in the short term. Good luck.
No. Smart ideas, a positive contribution and I wish you would get your way on this, but this probably isn’t going to happen.
Look at what major Remain campaigners have said on Twitter, look at the candidates in the last Labour election have said. Umunna, Kendall, Cooper, Jarvis too – all have said more or less explicitly that they’re going to accept this. Ditto Europhile Tories like Hunt and Nick Hurd. They may not like it, but Labour saw the results in Barnsley and Doncaster – they’re going to go with this. I can buy that a Labour candidate will stand on the platform you propose, but who? (My preferred candidate would be Bradshaw and if he stands this would get a lot more likely – but as an MP for Exeter he has little connection with Labour heartlands.)
Further, the buy-in from Europe isn’t there. Germany’s vision is cauterisation not charm offensive. They would rather have certainty about what will happen- any certainty – than another year of going round in circles à la Grèce where you have no idea if the government you’ve done a deal with can stay long enough to make it happen. And they’ve put up with years of UK opposition to many of their initiatives for Europe – isn’t, the argument goes, it better that we leave now with at least some kind of dignity than stay and light the fuse for the next explosion?
This keeps going round in circles. If we had a stronger economy and a strong pro-EU leader, a Blair or Thatcher (1970s model) in their pomp or someone better still, that person could pull us back from this. But no such person is currently leading a major political party or likely to soon lead it. If they were, we wouldn’t be in this mess.
“all EU history shows that they only really listen to a population when it says No”
Question : Why UE should grant UK wishes more than other country ones? And what are those issues actually?
A second referendum is not unlikely, and Johnson has the greatest incentive of anyone to deliver it. This is all exactly as I predicted in the FT in early April at the start of the campaign. See here: http://www.ft.com/cms/s/0/64159804-fc1f-11e5-b5f5-070dca6d0a0d.html. And, if not, Britain STILL ends up de facto in Europe a la suisse. You cannot escape reality.
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It appears to me that a large number of exit voters were mislead by the brexit campaign promising huge benefits to the NHS. I know lies from political parties are not un-common but I can’t believe there can not be some legal recourse as a result of a group of individuals politicians delivering lies and making promises they have no intention of keeping?
Well worth pushing.
But UK remainers may also need to be ready to counter a possible EU acceleration of exit negotiations.
The UK government has (or no doubt shortly will when the PM gives a statement to Parliament) confirmed its intention to bring about a Brexit in the light of the referendum, yet there is a suggestion that a formal, written, notification under Article 50 may be deferred.
That could be construed by other EU member states as not cricket, or in terms of the legal requirements of the Treaties, contrary to the ‘duty of sincere cooperation’ in Article 4(3) of the Treaty on European Union.
Taking the pragmatic approach which tends to apply in EU law, I wonder whether other Member States may take the view that as soon as the UK government makes its intentions public, the European Council will then have been notified of the UK’s intentions, and the Article 50 clock will then be ticking.
The European Council’s rules of procedures do helpfully give an address for correspondence, but they don’t specifically provide that any notification to the European Council must be in writing or in any other particular form.
If there is any doubt about this, and the other member states wished to get the CJEU to find in their favour, they could then use Article 4(3) in their favour.
Here’s what Article 4(3) requires:
“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”
The argument would be that by delaying written notification the UK is frustrating the orderly conduct of EU business etc, and should therefore not be allowed to succeed in this ploy.
I see that Professor Wyatt is on to a similar point and this has now been picked up by the BBC here: http://www.bbc.co.uk/news/uk-politics-36631518
If the UK government is not intending to notify the European Council for a while, it would make sense for that to be on the basis that it has yet to make up its mind in the light of the referendum, rather than simply playing for time.
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