If a week is a long time in politics, then with the extraordinary times we are enduring I have no idea how to describe the just under a year between now and the prospective date that the Scotland and the UK may leave the EU. The excellent David Allen Green wrote this week that the legal doors to stop Brexit are closing or closed (Financial Times “The three legal paths to stop Brexit are blocked” – paywall). Where I would not dispute his analysis, I would disagree with his conclusion and, unlike the vast majority of people in these islands, as a Member of the European Parliament I’ll actually have a vote on it.
First a confession: my position is clearer than most. Scotland voted quite clearly and unanimously across all regions to remain, and that is my instruction. I also accept the current constitutional reality that Scotland is part of the UK and 52 is a bigger number than 48. Democracy matters, and something has to be delivered or the grievance that the ideologically pure, untainted, Brexit was somehow stolen will put rocket boosters on the next iteration of UKIP that will by then feel free to morph into something more like Britain First.
And I agree with Mr Green that we should of course care about what happens if Brexit does go ahead, but that doesn’t mean we should abandon the fight to make sense of it before it is inevitable. Opposing Brexit does not mean we give up our right have our say on what it will bring if it does happen.
The Scottish Government has put forward a range of solutions to a notably tin-eared UK government. The softest Brexit possible, with the UK in the Single Market and the Customs Union, is obviously the least damaging form of of brexit. But that would still be damaging to the UK and Scotland’s economy, and leave us in the position of having no representation in EU decision making bodies and scant influence over their decisions.
This is Brexit. Even the least bad Brexit is still pretty bad.
The legalities of Brexit are complex, but important. The EU is a legal construct. We have constitutional laws, no matter how often the UK Government tries to get round or indeed ignore them. I’m one of the litigants in the case to establish, as the UK Government refuses to, whether Article 50 can be revoked unilaterally. This is a crucial question and a lot could end up resting on it. This is a live case before the Inner House of Scotland’s Court of Session. To stop Brexit, Article 50 will have to be revoked, and the case hinges on the extent to which the Courts should gainsay the stated policy of the UK government not to revoke. But I think it is a fair statement that things are rather more fluid than usual and it would be irresponsible not to seek clarity on all our potential options.
Mr Green also rightly argues that law is subject to politics. Nothing is more political than Brexit. It was politics that put us where we are now, it’s politics that can get us out of it, and the politicians of the EU say we can stop Brexit whenever we want up to Brexit day.
If nothing changes, the law, such as it is, says we’re out. But things happen in politics and especially now. All that has to happen to trigger the process of stopping Brexit is that Westminster MPs must vote against the withdrawal agreement, or vote to give the people a final say on it. This would probably mean that the Article 50 negotiation period would need to be extended, but there is already contingency planning going on behind the scenes in Brussels for that eventuality. As a colleague tartly put it: “anything could come out of Crazy Island.”
All credible analysis is clear: Brexit has nothing but downside. Leave voters were deceived by charlatans into believing whatever version of Brexit they wanted was what they’d get. Leaving the EU was presented as a cure-all for whatever ails you. Many know that now, and as more detail dawns it’ll become clear to even more. Non-voters in the EU referendum won’t make the same mistake again.
And it is even more important to remember, nothing whatsoever is agreed. There’s a lot of text in a lot of drafts but it is all in the conditional tense. A lot of it also will not pass the European Parliament’s red lines and we will have a right of refusal, just before the European elections when my continental colleagues might find some votes back home in being tough. If it gets that far. At the moment, we can’t even say for sure that there will be an agreement at all. Unless Mrs May faces down her ERG Ultras, caves on the Northern Ireland-Ireland border, and ditches the dead-on-arrival 3 baskets policy, there may well not be one. If there’s no agreement, no remotely responsible Parliament could allow the car crash of a no deal Brexit to happen and I do not see how my Parliament in Brussels could in all conscience allow the UK to crash out without a managed process. Brexit is not just a UK problem.
No version of Brexit has a majority in the House of Commons behind it. The government is just as split. No deal Theresa May brings back to Parliament is going to be popular. No withdrawal agreement will get anywhere near to meeting Labour’s six tests, let alone the long list Hilary Benn’s Brexit Committee has produced. Moderate Tory rebels are sick of being ignored already, they’ll be sick right to their back teeth of it by then.
We have to be realistic about our chances, yes. Most MPs might plod through the lobbies muttering about what a disaster it all is, like so many did for the Article 50 bill. Negotiations might turn up a deal everyone loves. Hey, the unicorns might turn out to be real.
The thing that makes politicians think hardest though, is public opinion, and here I remain positive. In all referendums everywhere, there is a coalescence behind the winning side whatever it was, but not with Brexit. Quite the reverse, it has shifted to Remain, but it needs to shift more, and I believe it will for two reasons. First, people will see what real-world brexit actually means, it is not what was promised. Second, the UK political parties need to do what they should have done before the star-crossed referendum, explain the merits of the status quo and the significance of what might be about to be lost. I’ve a few tips from Scotland I’m happy to share. I’m pro-EU not because I’m some starry eyed europhile, but because I want the best for the people I serve.
Any Brexit will hurt Scotland and the rest of the UK. Least harmful isn’t good enough for me and my country, and it shouldn’t be for you either. We might have to take it if that’s all that’s on offer, but for the moment anything is possible so long as we keep going. Maybe we’ll fail, but I’m going down fighting, and the very day after Brexit day, if it happens, will start the campaign for Scotland, and the UK if it comes to it, to rejoin.