Votey McVolte-Face – why Britain will not leave the EU

The 24th June was a busy day for press offices across the university sector, as senior management teams scrambled to prepare statements for staff and students on the result of the EU referendum that few were prepared for.

The template for such announcements went along the lines of: ‘1. We would like to reassure you all that there will be no immediate change for anyone, 2. We very much value our international staff, students, partners, and mission, 3. We will get back to you when we have worked out what is going on in the world.’

The week that then followed in British politics was tumultuous as the pound collapsed, the prime minister resigned, the chancellor disappeared, the front-runner for the Conservative Party leadership withdrew from the race, and the official opposition ceased to function. We are now at an impasse and awaiting the outcome of the election of a Tory new leader (expected on September 9th) before anyone knows what the next steps for the country will be.

Universities have different reasons to be concerned about the current favourites in that leadership contest: Theresa May, a Home Secretary, who has refused to listen to university lobbying over international students, or Michael Gove, who as Education Secretary expressed a strong preference for moving the higher education brief from BIS to Education. Let’s just say that the situation is fluid.

The extended period of uncertainty that has now engulfed us is as bad for universities as it is for the wider economy and the nation in general. At this point we have no clarity on access to European research funding, the visa status of staff and students, the likely impact on international student recruitment this autumn, the future of the science budget and what remains of direct public spending on higher education, as well as the capacity of the UK to continue with a student loan system that relies on its ability to borrow money on the global bond market. The prospects for the Higher Education and Research Bill, are up in the air, as is the identity of the next minister for universities. To say that all of this is unsettling for universities would be to venture an understatement.

Yet there may be light at the end of a potentially very long tunnel.

It was Enoch Powell, a strong Brexiteer if ever there was one, who said that ‘all political careers end in failure’. As David Cameron stood outside Downing Street the morning after Britain had voted to leave the European Union in a needless referendum of his own devising, it looked as if he would be remembered as one of the worst prime ministers of all time.

However, Mr Cameron said something, or more accurately did not say something, very significant in that speech. In so doing he did something rather clever, which might just mean that in the end he wins the referendum even if it means that uncertainty has now settled in, like a wet British summer.

He did not invoke Article 50 of the Treaty of Lisbon, the legal means by which a member state can leave the EU. Instead, he said that a new leader should decide on the time to confirm an application of Article 50. Again, he did not say that his successor will initiate Article 50 but rather it would be their decision. By sacrificing his own job, Mr Cameron may have made it possible for the UK to remain in Europe.

We must now all become experts on EU law. Article 50 requires a member state to inform the European Council of its intention to leave the union and begin a two-year programme negotiating terms for departure. Once initiated, the departing state is excluded from meetings of the other 27 states at the European Council. If the discussions are not concluded within 24 months and have not been granted an extension by the unanimous approval of the other 27 countries, the exiting state will depart without agreed terms. The treaties of the EU simply cease to apply to that state.

For now, Britain is still part of the EU and will be so until the British government completes the process specified by Article 50. There is a lot of water to flow under a good many bridges before that happens. The first issue is that no matter who wins the Conservative leadership contest, that individual has no democratic mandate to invoke Article 50. There is no clear path between the referendum result and a mandate for a government in this parliament to take us out of Europe. Referendums in the UK are not legally binding because, as the Leave campaign constantly bemoaned but seemingly failed to appreciate, parliament is sovereign.

We are then in a constitutional crisis in which the democratic will of the people has been expressed but cannot be implemented by a sovereign parliament. It is possible that a new Conservative Prime Minister will emerge from the leadership contest and announce the start of the Article 50 process, and certainly, the candidates will come under pressure to make such a commitment. But it is doubtful. The mood appears to favour kicking that can down the road until next year. The longer we go without initiating Article 50 the less likely it is to happen.

A form of words will be found in the Tory leadership race about arguing for the best deal and not rushing to Brussels’s timetable, etc. A reluctant new Prime Minister faced with a growing recession might ask us to reflect on the economic impact of Brexit and ask the Treasury to draw up strict economic tests that need to be met before Britain leaves the EU.

It could be argued that the invocation of Article 50 is the prerogative of the PM. However, it has become common on contentious issues for prerogative to be deferred to a parliamentary vote, as in the proposal for airstrikes on Syria. Without an elected mandate, the pressure to put any Article 50 process to a vote in Westminster would be overwhelming. Legal opinion is divided on whether legislation is required to repeal the 1975 act that first took Britain into Europe.

Should it come to a vote in both Houses, the big question would be whether the political context had changed enough for parliament to believe that it could thwart the result of the referendum. Ostensibly, there are enough votes between the opposition benches and embittered Remain Tories to stop it. The vote would give rise to calls for a general election to resolve the crisis. The Fixed-Term Parliaments Act makes that rather difficult. Unless two-thirds of the House of Commons passes a vote of no confidence in the government (and a second 14 days later), then we are stuck in deadlock until the scheduled 2020 election. At this moment in time, only UKIP would benefit from an early election and both Conservatives and Labour will be keen to avoid this outcome.

At a general election, the parties would be expected to make a manifesto commitment on their approach to an Article 50 process. Until last week it was more likely that Labour would make that pledge than the Conservatives. It is telling that the only politician to call for an immediate exercise of Article 50 on the morning of June 24th was Jeremy Corbyn. It is almost as if he wants out of the EU.

It would be a very brave wonk to predict the outcome of a general election when the last one barely produced a functioning majority government. By the time we come out the other side of all this the political world will look very different. The economy could well be in a very different place, and the crippling effects of continuing uncertainty would be well known. Even if a pro-Brexit Conservative Prime Minister entered the next parliament with a majority and a manifesto commitment to enact Article 50, after all that delay there would, in fact, be increased pressure to pass a bill through both houses rather than declare executive prerogative. The referendum will not have resolved the split in the Conservative Party over Europe; it will have made it much worse.

No sitting British Prime Minister without a substantial parliamentary majority will be able to invoke Article 50. No sitting British PM charged with ensuring the economic health of the nation and its security, provided with overwhelming evidence from their civil servants, will want to invoke Article 50.

It is not a question of ‘surely they must respect the democratic vote’. The result itself was decisive but close enough to introduce doubt into the process. The referendum was an abnegation of the responsibilities of parliamentary democracy to resolve an internal dispute within the Conservative Party. Now that this tactic has blown up so spectacularly for everyone involved we are looking at a new political landscape, in which the reluctant Remainer, Theresa May, plays the role of Fortinbras, who inherits the kingdom at the end of Hamlet as the rest of the court have slaughtered each other.

Invoking Article 50 would lead to a second referendum on Scottish independence. It is a manifesto commitment of the SNP government, a party with a much larger parliamentary majority than the Conservatives. The Scottish government would be part of the exit negotiations and, as part of any conscious uncoupling, the EU may insist on respecting the Scots’ wish to have a vote on remaining in Europe, perhaps on the condition that they would then adopt the Euro. In an unpredictable situation, the European Council might also suggest that Northern Ireland be allowed to express a preference for the status of its own borders. No Conservative and Unionist prime minister can allow either of these things to happen and so will be reluctant to enact Article 50.

Other scenarios are possible, including the possibility of a second referendum in this parliament offered by the new Conservative leader. This second vote might equally be the manifesto commitment the Tories offer in a future election. It would be a referendum that actually set out what a future relationship with Europe might be rather than one based on the vaguest of premises. But it would be one that was gilded with promises from the EU to entice the British electorate to vote Remain. There are several precedents for second referendums whenever Europe has been rejected as a proxy for a protest vote against national governments.

This is why the EU is threatening to make an example of Britain by offering it a trade deal similar to that given to Turkey (deep irony duly noted). The threat is in part an attempt to prevent exit contagion across Europe. This is what the EU did to the Syriza government in Greece, which was forced to accept worse bail out terms than had been previously on offer before its ‘Oxi’ vote. The EU Council’s modus operandi is to make an example of nations as the worst of the worst so that everyone else falls in line. It can also be interpreted as a coded threat to the UK not to invoke Article 50.

In the months and years of constitutional paralysis that follow from the non-exercise of Article 50, or during a second referendum, we can also expect the EU to be much more proactive in offering pragmatic concessions to a UK government and making a direct appeal to the British electorate. The British population already suffering from buyer’s remorse over the first referendum will be love-bombed into remaining in the EU on a second ballot. The discussion that follows in the EU is between Donald Tusk and Angela Merkel, who will be both more conciliatory to the UK and actually have the political capital to do a deal, and Jean-Claude Junker and François Hollande, who fell more immediately threatened by Brexit. The EU can publicly call for Brexit all it wants, but ironically the Article 50 process is a sovereign decision for the United Kingdom.

Even if an Article 50 process were ever initiated, it is almost certain that the unique risks of a genuine British exit would enable the European Council and the British government to find a creative way of halting the supposedly irreversible progression as new circumstances emerged or as better terms become available. Compromise and procedure are what European technocrats do well. Politicians will say that circumstances have changed, opportunities are available that were not foreseeable at the time of the original vote etc. All along the way, a process can be invented, and words found to make what today seems impossible to seem politically inevitable in 18 months.

The final result for the UK could be membership of the European Economic Area rather than full membership of the EU, at which point UK universities and students would have access to all European funding and schemes. However, such a re-configuration of the boundaries of the European Union would have such a profoundly transformative effect on what inclusion or exclusion means that all rules and classifications would be in flux. Under such circumstances the EU council knows it will have to, in the words of Shakespeare’s sonnet 116, ‘bend with the remover to remove’.

And what of those communities who voted for Leave in such large numbers? Some will change their minds by the time of a second referendum or election; many will return to their historic party loyalties when faced with a general election; those who do not normally vote but who came out for the referendum will go back to not voting, certain of the duplicity of politicians and that the system is stacked against them. Others may turn to different siren voices offering easy answers to difficult times; these are the ones to be concerned about. The myth of the great betrayal of the English working class by the liberal elite will be a powerful recruiting serjeant for the far right.

The Leave vote in certain areas was not a comment on the Common Agricultural Policy, qualified majority voting, or the benefits of the European Regional Development Fund; it was a cry for help from those for whom democratic representation has failed, ignored by the Tories and taken for granted by Labour. The inequity of British democracy is the cause of this referendum result, but it is the one thing that will not be changed by it. The British electorate is coming to realise that it was taken for a ride to facilitate a right wing coup within the Conservative Party.

The uncertainty around all of this is not going to end anytime soon. It is a cultural and economic wound that will scar the nation for years and years to come. Universities will just have to negotiate their way through it as best they can; making a re-commitment to their core values of critical thought and to their mission to educate would be a good place to start. After last week few will want to make a more confident prediction than that.