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‘No deal’ has no democratic mandate

by David Harrison | 24.01.2019

The prime minister likes to use the 2017 general election result to justify her dogged pursuit of Brexit. She did it again last week: “In 2017 80% of people voted for parties that stood on manifestos promising to respect (the 2016 referendum) result.”

But if Theresa May takes election pledges so seriously, why does her government not immediately rule out a chaotic no-deal Brexit, given that they were not elected to carry one out?

The Conservative manifesto said pretty clearly, on page six: “We need to deliver a smooth and orderly departure from the European Union and forge a deep and special partnership with our friends and allies across Europe.”

The same point is repeated no fewer than eight times in this 84-page document, in case the electorate was in any doubt. For example: “With Theresa May and her team we will secure the best possible deal with the European Union and chart a course to a new global future” (page 84).

The manifesto does say – once – that “we continue to believe that no deal is better than a bad deal for the UK” (page 36). But that just confirms the position. The government obviously does not think its own withdrawal agreement is a bad deal, or else it would not have endorsed it at the European Council in November 2018, and then recommended it to Parliament.

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The IMF has said this week that a no-deal Brexit is a potential trigger for a global economic slowdown. This prospect was never put to the UK electorate in 2017, who were told instead that the UK “is a significant influence for good around the world” (page 37), which “will continue to give strong support to an international order in which rules govern state conduct; in our own behaviour we will support this system and apply it in a principled way” (page 38).

Under EU law, the UK can only leave the EU under Article 50 “in accordance with its own constitutional requirements”. One of our quaint constitutional habits in Britain is to elect governments on the basis of what they say they will do. If they don’t or can’t, they don’t have a mandate.

And, as the European Court of Justice pointed out in December, the UK cannot be forced to withdraw from the EU against its will. No-deal Brexit threatens both the UK and global economy. It would also create utter confusion over the fundamental EU rights belonging to UK nationals and businesses, which the UK has a duty to protect under the EU Charter of Fundamental Rights. There is, again, no electoral mandate for this rupture in the rule of law.

A final commitment in the 2017 manifesto bears repeating. This is that the UK will enter the Brexit negotiations “in a spirit of sincere cooperation” (page 36). If the UK cannot meet its own constitutional requirements for implementing the government’s withdrawal agreement with the EU (because Parliament will not ratify it), and if withdrawal without any agreement has no democratic mandate, then – in the spirit of sincere cooperation – it should come up with a different solution that does meet this requirement, and then inform the EU of the new position. There is no more excuse for running down the clock.

David Harrison is a lawyer, author and former diplomat specialising in EU issues. Publications include The Organisation of Europe (Routledge 1995) and Price and Financial Stability: Rethinking Financial Markets (Routledge 2018).

Edited by Luke Lythgoe

5 Responses to “‘No deal’ has no democratic mandate”

  • Strictly speaking, since the Conservatives lost their majority in 2017 their manifesto has no mandate for anything at all. And the idea that the second-placed party’s manifesto has any kind of implied mandate — the basis for the 80% claim — is just laughable. May invited the electorate to back her Brexit vision in 2017. The invitation was declined. And so was Corbyn’s fantasy “jobs first” oxymoron.

    -A.

  • Sadly, I believe that there will be no “People’s Vote”. In order for this to happen, the Government would have to propose this to Parliament, which would then vote on it. If passed, this would then go to the legislature to become law. There would then be at least six months in order to “beta-test” various questions and decide on the right question. Only then would it be placed before the public – so you’re looking at the autumn at the earliest – long after we’ve left. Of course, if such was proposed by the government, they would have to ask for an extension on Article 50 and I daresay the EU would agree. But even then, there is no guarantee that the outcome would be any different from 2016. So I honestly think that May’s deal, or maybe a softer version, is the only way forward, given that not leaving would be political suicide for many MPs. And Cameron says he has “no regrets” about calling the referendum. I find his attitude staggering.

  • I am a self confessed Remainiac, but I honestly believe ‘No Deal/WTO Brexit’ would have to be on any referendum ballot otherwise the Leave True Believers would be able to claim that the referendum had no validity.

    The Remainers would have to be able to show that there was no democratic mandate for what every other country in the world (bar Russia) would consider national economic suicide. Sadly we are rarely exposed to the way other countries see our exercise in National Flagellation.

    Unfortunately our reliance on facts may well end up being the cause of our failure, since Brexit seems to me to be more about values, rather than anything else.

  • The ‘leave without a deal scenario’ often discloses a lack of knowledge of the intertwining legal systems that have been built up in partnership for some 40 years. We would think it irresponsible for a partner to walk out on a 40 year marriage telling the remaining partner just to get on with the children and family home, but they were off into the sunset. Brexit is similar.
    And the tricky question of international commitments to the Good Friday/Belfast Agreement remains… the New IRA flexed their muscles last week in a destructive car bomb week in Derry/Londonderry. Is it worth it?

  • Totally agree with the article today in the Independent by Hugo Dixon. Let the MPs spend 5 days debating the merits of No Deal. Lets hear Boris Johnson and Jacob Rees Mogg expound the theories with some facts and figures with some peer reviewed analysis of the Economists of Free Trade theories. Lets hear the pros and cons of their arguments, who will be the winners and losers. Lets hear them in an unambiguous way, rather them being able to hide their real aims in the shadows, with their shallow mantras ” We have nothing to fear about trading on WTO tariffs”. Lets hear them explain their vision of “Britannia Unchained” with its Victorian view of employment law. Its time they all came clean about the cliff edge they are leading us to. It may even wake up a few Labour MPs who seem prepared to facilitate Brexit because of their fear of losing their seats. £65,000 pay as an MP is more important to some than the livelihoods of 500,000 people that are on the line because of Brexit.