6, September, 2019
Not serious! The European Commission have announced extra measures and emergency subsidies in the case of a No Deal Brexit scheduled for 31 October 2019.
Neither the EU or the Irish have a plan to put up border posts along the Irish / Northern Ireland border. This would be required if they took the ‘Irish Backstop‘ danger seriously. It is a complex border requiring much preparatory work. It is also politically sensitive with memories of the the IRA conflict. But this can’t be the whole story for doing absolutely nothing. What’s happening?
Some British may think that all will be over at 11 pm on 31 October. But in Brussels, the bureaucrats have read the treaty carefully. That is why we could be in for decades of Brexit crisis.
How many years will the Brexit crisis last? That is not clear. But don’t expect an exit on 1 November. The way Article 50 is written it could last several decades.
The key word ‘Constitutional’
The key word in Article 50, the Exit clause of the Lisbon Treaty on European Union is ‘constitutional‘.
“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” Article 50 paragraph 1.
But what is the constitutional position for Brexit in the United Kingdom? It does not have a written constitution. Even if it did, there might be a dispute about the government’s interpretation of a clause compared with an opposition party, a commercial organisation, a trade union or an individual who challenged this. That would take the matter to the Courts.
Constitutional disputes about Europe have taken a long time to resolve in Member States. Courts raised questions on the legitimacy of the Lisbon Treaty and whether Europe is democratic.
The German Constitutional Court judged that “It is first and foremost the national peoples of the Member States who, through their national parliaments, have to provide democratic legitimacy“
For the UK with no separate Constitutional Court and no written Constitution, the chances for a dispute are much wider. For the present UK, with unprecedented disputes in Parliament and in the country about Prime Minister’s conduct and allegations of lying to the public and Parliament, the question is even more open.
It is complicated further by the fragility of the government. At present Mr Johnson does not have a majority in Parliament. Normally he should resign on the basis of a vote of no confidence. But that is not the situation in UK now that the country under the Fixed Term Parliament Act.
Second problem. UK has a government that cannot resign. It needs a two-thirds majority vote against it to call a General Election. But the Opposition does not trust Mr Johnson and has refused this until it is sure that he will follow an Act that they are passing to rule out a No Deal Brexit.
The only other means to have an election is a vote of NO Confidence. But that requires the Government party to vote that they have not confidence in themselves!
Furthermore Mr Johnson has sacked a score of some of the most loyal Conservative MPs simply because they voted against his wishes on the government timetable. A severe penalty from a government, itself composed of many MPs who voted against the previous Conservative government. Mr Johnson himself voted against the previous government of Theresa May on the Withdrawal Treaty but hypocrisy does not seem to bother him. However, sacking 21 supporters when the government had only a majority of one vote, seems reckless beyond measure. It shatters the majority and embitters the party supporters around the country.
How will the Johnson Government get anything else through Parliament?
But that is not all.
Thirdly, the Courts. At present there are three Court cases dealing with the legality of Brexit. They attack the advice the government gave to Queen to prorogue Parliament, allegedly to cut back on democratic debate on a No Deal Brexit. These cases are likely to go to Appeal and even the Supreme Court.
Nor is that the end. If cases are open by the Scottish and Welsh governments against the central government on misuse of advice to the Queen to prorogue parliament, then there is likely to be further challenges on more substantial issues of the Constitution.
Fourthly Economic Cases. Any of these arriving at the Supreme Court would take far longer to deal with and require extensive research and therefore delays.
Billions of pounds and billions of euros are involved in the decision and repercussions of Brexit both in UK and on the Continent. The Government has already paid out millions in compensation for its ill-judged handling of the Dover-Calais fiasco. So challenges in UK Courts may continue.
Fifthly, the core issues are unsolved, and much more. There are two further levels of legal challenge.
For Brussels, the question must arise, about the legal competence of a beleaguered government, accused of misrepresentation and cheating in delivering a firm and reliable decision for Brexit. If Brussels recognized any action of the Johnson government it would likely bring in huge economic costs to those on the Continent. It is up to anyone inside the EU to challenge whether a fully constitutional governmental decision has been taken. If not, why did the Brussels machine recognize it?
That challenge could go to the European Court in Luxembourg and deny or delay London recognition of its decision to leave.
In UK many people doubt whether the legal basis for the 2016 referendum will stand up to the light of day. The British voter never agreed to the Lisbon Treaty and that is the basis of Article 50! The totally separate Euratom treaty, designed to stop Atomic War that the Government says UK must now leave, never came into the pre-referendum debate or any publication or statement of the government.
Irish Backstop still needs a solution. So does the Customs Union and Euratom. Whatever happens to the Johnson government and its replacement, UK still needs to resolve the Irish Backstop and its relations with the Continent.
Robert Schuman designed Europe’s peace system based on a democratic Assembly and a Customs Union in a Community. Leaving these institutions is equivalent to rejecting the peace. A new war is something no one in Europe wants. Does the UK not want to have full democratic relations with the Continent? Leaving a Parliament means marching on the road to tyranny.
The core problem that needs to be resolved is Democracy in UK and in Europe.
Will the dispute last decades? It already has!
A quarter century already
Crises in Europe tend to last decades or more. The Brexit crisis started well before the 2016 Referendum. It was then just called the Democratic Deficit crisis. In the UK, Brexit crisis can be dated back to at least 1994 — a quarter of a century ago.
James Goldsmith, an Anglo-French businessman, founded the Referendum Party with this aim. It made a deal with other parties, especially the Conservatives, for elected parliamentarians to pledge themselves to demand a referendum. The only referendum on Europe had occurred two decades earlier in 1975.
Many in Britain thought the Brussels system was autocratic and needed urgent democratic reform or UK exit. It was high time another took place. Nothing happened for decades despite promises of both Conservatives and Labour parties and the formation of the United Kingdom Independence Party. UKIP was actually formed in 1991 and took over the mantle of a Referendum when the Referendum Party dissolved thinking its work was done.
Brexit has been a crisis, ringing alarm bells and firing democratic Very-light flares, for decades. Don’t be surprised if the present Brexit crisis lasts as long again.
David Heilbron Price