Montesquieu Instituut: van wetenschap naar samenleving

A new Brexit scenario?

Aalt Willem Heringa i is hoogleraar vergelijkend constitutioneel en administratief recht aan de Universiteit Maastricht.

The latest elections for the UK House of Commons took place in Spring 2015; next elections are scheduled for Spring 2020. However, it is not at all unthinkable that earlier elections could be called for, despite legislation making such a move more difficult.

The Brexit referendum took place in Spring 2016 and for now it has been announced that the notification of withdrawal of art. 50 of the Lisbon Treaty is planned for March 2017. Considering that art. 50 provides for the effectuation of the Brexit at the earliest in March 2019, let's consider some other options.

1. The High Court has already ruled (appeal in the Supreme Court will be entertained in December 2016, judgment may be expected in the beginning of 2017) that the Brexit and its notification must be an issue for the legislature, which includes Parliament. This indeed might slow down the process and postpone the planned notification and bring it to Autumn 2017.

2. Negotiations with the EU may well take a bit longer than two years, or lead to a complicated package of compromises, or to a temporary solution, as a transition to a future Brexit.

3. Will it be wise or likely to effectuate a Brexit a short period before new elections? Would it not be more expedient to postpone a Brexit until after elections with a new strong government and after the months of election campaigning? With a government which has a new and strong mandate and with a prime minister who himself/herself has won the elections in his/her own right?

4. Moreover, if the focus is on the referendum result of 2016, why not put the Brexit package and the final decision again before the electorate? That would be truly honouring the pledge of listening to the electorate: let the electorate decide whether the package merits a true Brexit, or leads to a bleak future and ought either to be improved or not to lead to a Brexit at all? And in order to not again have the courts step in and order the legislature to decide, parliament may decide that this new in or out referendum will be binding upon the legislature.

5. Is this compatible with EU law? Well, judging from the text of art. 50, it may be not: under art. 50 there is no possibility to back down after a notification has been submitted. But well, the member states are masters of the treaties and could find a way out, by allowing the UK to reconsider its exit with a new referendum. Then there is simply nothing to lose: either Brexit is effectuated or not. The former was the case anyway, and the latter option is from an EU perspective preferable. So if it could be part of a negotiation package that it would be laid before the UK people, it could be done.

6. In the meantime all voters, experts and politicians will have had the opportunity to reflect, (re)consider and discuss and have a document on the table analyzing and showing what Brexit would entail and lead to. Sometimes wisdom comes with reflection and reconsideration, and at least the new decision by referendum will be grounded on specifics and precision about the consequences and the impact.

7. Brexit leavers will not like it probably. Why not? To involve the electorate also at that stage is the ultimate consequence of their referendum campaign and the reasons to have a referendum.

8. And finally, this scenario will never be acknowledged by the UK government as realistic or possible, since once it will do so, the EU will be given an excuse to push for a hard Brexit, with the likelihood or chance that the UK electorate might subsequently reject it.


Deze bijdrage verscheen in de Hofvijver van 28 november 2016.