I thought it worth sharing, exceptionally, the case I took to the UK Council of the European Movement earlier this month (a distinct version of this piece may appear elsewhere this week). It is predicated on two things – the constitutional and practical implications of the referendum result.
Constitutionally, it is important to reflect that the UK (incorporating in effect, for this purpose only, Gibraltar) is the member state of the European Union and that it voted by majority to leave the European Union. That is the preference (I am going to return to that word) of the people of the United Kingdom taken collectively and no one should attempt to ignore that fact. Nevertheless, it runs up against the constitutional reality that the vote was in four separate legal jurisdictions. Only one of them, England & Wales, voted to leave the European Union. The remaining three – Scotland, Northern Ireland and Gibraltar – have each clearly and freely expressed their preference both for remaining within the European Union by a greater margin that England & Wales voted to leave it; and for remaining within (or associated with) the United Kingdom at recent referendums in which both the turnout (at over 80%) and the margin of victory (at over 11 points) was greater than the Leave vote in England & Wales in each case. Thus, although no one should doubt the validity of the overall result, there is a constitutional reality that three out of four jurisdictions voted Remain to a greater degree than one voted Leave; in any true federation, this would be a problem (for example, Australia requires not just a majority of votes but also a majority of votes in a majority of states for a referendum to pass).
I have already recommended a solution to this – the Convention could be by random appointment, or a Royal Commission, or indeed even a Lords Committee.
Practically, there is another obvious problem. Again, the validity of the vote should not be denied – the motion “the United Kingdom should leave the European Union” was passed by majority of those voting, and the United Kingdom is the member state. The UK Government should re-negotiate its relationship with the other European Union member states (“EU27”) with regard to the preference expressed that it should leave the European Union. However, it is not only the constitutional implications of this (the defiance of the clearly and democratically expressed will of the people of Scotland, Northern Ireland and Gibraltar) which should be considered. There is also the straightforward practical implication that if the UK Government takes the referendum result as an absolute rather than as a preference, it will be entering into negotiations with one hand behind its back and will thus find it impossible to negotiate the best deal for the people of the United Kingdom in line with the views they expressed. Put simply, “invoking Article 50” invites the EU27 to sit on their hands for two years and wait for the UK to exit the EU with its economy in recession and without a single trade deal in operation to help it back on its feet – a route which would potentially appeal to the EU27 to warn others against taking the same course. It is thus simply impractical for the UK Government to invoke Article 50.
The solution here is to be frank about the context in which the referendum took place. Positions were adopted by leading campaigners on each side after the renegotiation of the UK’s membership, which concluded in March. That some Leave campaigners only opted for that side of the debate after the renegotiation is a clear indication that a different outcome may have resulted in them adopting a different position. Put another way, at least some of those campaigning for and voting Leave were doing so specifically to express opposition to the outcome of the renegotiation; had the outcome been different, they would have considered voting Remain. Their opposition to EU membership is thus not absolute; it is opposition to membership under the current conditions (i.e. those negotiated between December and February).
That leaves at least open the possibility that in negotiations with the EU27, the UK could achieve an outcome which is acceptable to enough Leave campaigners (in addition to the Remain side), but which maintains (or is even in return for) the UK’s “special” membership of the European Union. Simply by way of example, the new UK Prime Minister may wish to negotiate an arrangement, suggested by many Leave campaigners, that the UK maintains access to the Single Market but restricts free movement of labour so that EU nationals are only be allowed to come to the UK to visit for a limited period or to take up a pre-existing offer of work (or in certain other circumstances determined by Parliament). There is simply no chance of the EU27 allowing that in return for absolute Single Market access (EEA membership). However, presented with that choice alongside the option of keeping the UK within the European Union (thus reducing the prospect of other member states opting to leave), perhaps thus clarifying that absolute free movement of labour would apply only to the Schengen Zone (of which the UK has never been a member), it may at least offer the basis for negotiation. Why should the Prime Minister be denied all the cards available to negotiate an outcome which would be acceptable to many, quite possibly even a majority, of Leave voters?
In conclusion, I return therefore to the word preference. The preferences of the population – for maintenance of the constitutional integrity of the UK (and Gibraltar’s association with it), for membership of the EU, for membership of the Single Market, for greater control of the UK’s borders – all have to be balanced. It is important to reflect and record all preferences fairly and to attempt to implement them all to the greatest possible degree. However, it is ludicrous, both constitutionally and practically, to place one preference above all others simply because it is the one most recently expressed, particularly when it was expressed by the tightest margin.