Category: United Kingdom Law and Policy

7th January 2020

Historians and others pundits will spend many years discussing and disputing why and how Remain lost.

They will have access to documents and private information not available to onlookers at the moment, and so they may be able to provide better explanations than any of us currently can.

That said, there is a certain value in setting out how things looked at the time, as contemporaries can often be aware of many things that a historian can never recapture.

And so this is a brief post setting out the reasons why Remain lost, as they seemed to an observer at the time.

(I will below use Remain(ers) and Leave(rs) as shorthand, and I hope readers can see beyond the shorthand to the substantive points.  If your only objection to what follows is the shorthand, then this really is not the post for you.)

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To begin with, my view is that Remain lost rather than Leave won.

After over forty years of membership of the EEC/EU, there should have been a more compelling Remain case made at the 2016 referendum.

And even after the narrow referendum result for Leave, the lack of clue of Leavers about what to do next meant Remain still could have secured a further referendum with a Remain option.

But there were (again, it seems to me) three reasons why Remain still failed.

First, Remainers became accustomed to Leave failures – and so became complacent.

There was mistake and mishap after mistake and mishap by the May and Johnson governments.

It often appeared that Brexit would fail all by itself, just because of the accumulation of pratfalls and folly.

There were even three extensions to the planned departure date, and so it appeared that there would always be another extension.

Second, the focus and efforts of Remainers were too often away from the political battle.

There was crowd-funded court case after court case – some worthwhile (for example the Miller cases) and others far less worthwhile.

There was excellent investigatory journalism, exposing the irregularities of the various Leave campaigns, followed by regulatory and police investigations.

There were also marches and petitions and hashtags.

But none of this led to any political breakthrough.

The majority of MPs remained opposed to a further referendum and, in the 2019 general election, little of the Remain passion was converted into concrete political achievement.

Third, at the crucial political moment – just over two months ago, but now an age  away – the Labour and Liberal Democrat parties enabled a general election which neither party turned out to be in a position to exploit.

Neither party were required to consent to this, but they did.

Until mid-November 2019 it was still plausible that a further referendum could be forced, with the prospect of a Remain victory.

The Labour leader even proposed that in return for a being able to head a government there could be a referendum where Remain would be an option.

But the window of opportunity was closed, and then boarded-up.

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It was not inevitable that Remain would lose either the 2016 referendum or the campaign for a further referendum before any departure.

Indeed, the idiocies and antics of Leavers in government provided far more opportunities for Remain than Remainers perhaps deserved.

Yet Remain still lost.

Of course, many Remainers will be quick to blame and accuse others.

And they are right, in that Leavers were and are culpable in many ways.

But both the 2019 general election and the campaign for a further a referendum were there for the taking.

Brexit was not inevitable at any point before the December 2019 general election, and the only reason it is now virtually certain is not because of any genius move by Leavers but because Remain let Leave win.

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18th December 2019

Last week the general election returned the Conservatives with a substantial majority.

Until the exit poll was published there were still hopes, based in optimistic readings of some polls, that there would be a hung parliament.

But that turned out to be wishful thinking.

The period of hung parliaments, from 2010 to 2019 (bar two years), is no more.

Things have changed.

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The greatest change is about Brexit.

The time of Remain resistance is over: there is now no viable political (or legal) path to Brexit being blocked.

It is now virtually certain that the United Kingdom will leave the European Union and that, unless something currently unforeseen happens (say, a logistical or administrative problem), that departure will be at the end of next month.

The United Kingdom is now set to leave the European Union by automatic operation of law on 31st January 2020.

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This post sets out some observations and thoughts on the wider significance of the general election result on Brexit – the bad and the good – and it then sets out an important warning about the next stage of the Brexit process.

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One way, perhaps, of seeing the general election result is as the third manifestation of the “will of the people” on Brexit.

The first “will of the people” was, of course, the referendum result of 2016: that, in principle, the United Kingdom was to leave the European Union.

The second “will of the people” was the 2017 general election result: that the exit from the European Union was to be done by the means of a hung parliament, that is by consensus between the main political parties.

And the consequence of this second “will of the people” was to make it difficult, if not impossible, for a “hard” Brexit without any withdrawal agreement.

The current prime minister was in fact only able to obtain a further general election by accepting that departure had to be with a withdrawal agreement.

The third “will of the people” was last week’s general election result: that the government would now have a comfortable majority for the negotiation of the follow-on trade relationship with the European Union.

The United Kingdom and the European Union would then have the confidence that anything agreed would not be frustrated by parliament.

Seen in this three-stage way, you could say that the “will of the people” was the wisdom of the people (echoing the notion of the wisdom of crowds): (1) providing a mandate, (2) tightening the leash, and then (3) loosening it.

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Of course, the three-stage scheme above is an illusion.

It is a neat pattern one can only see with hindsight.

At the time it was far more messy and, of course, general elections are not like referendums and cannot be easily compared.

The current United Kingdom electoral system is not an efficient register of what is the “will of the people”.

For example, looking at numbers, the Conservatives only increased their total vote by only around 300,000 to get their thumping majority; the main shift in terms of absolute votes was the collapse of the Labour vote by 2.6 million, from 12.8 million to 10.2 million.

Some of you will be more interested in clever things like swings, shares and percentages, but I am always interested in the numbers of actual human beings who make the deliberate decision to vote – and on this basis it is difficult to see the 2019 general election as a strong endorsement of anything in particular.

We may no longer have a hung parliament but we still seem to have a hung electorate.

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As many will know (and no doubt some have scrolled down already to start typing this as a comment), total voter numbers matter little with the the First Past The Post electoral system.

To a certain extent (but only a limited one) the FPTP system itself affects voting behaviour: some don’t bother voting in safe seats, and in perceived marginal seats some may vote for parties they would not do otherwise.

And, of course, the FPTP system in effect distorts the result, so that whacking majorities can be based on minority votes.

In respect of Brexit, a plausible case can be made that the majority of those who voted were actually in favour of parties either against Brexit or in favour of a further referendum (Labour, Liberal Democrats, Scottish National Party, Green Party, Plaid Cymru, SDLP), and only the minority (Conservative, Democratic Unionist, Brexit Party, and United Kingdom Independence Party voters) were in favour of Brexit.

Plausible, but inconsequential, in a FPTP system.

The reason, however, why these points need to be emphasised is that, although the political game is now over on resisting Brexit before it happens, the ultimate political issue is still not settled.

There is reluctant resignation as to, but certainly not consensus for, the United Kingdom’s departure from the European Union; and for Brexit to be based on such resignation rather than consensus does not bode well for Brexit in the longer term.

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Another observation is about lies and honesty in political campaigning.

As this blog has averred before, pointing out that politicians lie is not enough if voters do not mind being lied to.

(Yes, it is still important to expose lies as a public good.)

How can this situation change?

There seems two ways: the hard way and the progressive way.

The hard way is there to be some crisis or “crunch” where it becomes of immediate importance to voters that there should be an alignment between what politicians say and reality: that it becomes urgent to voters that politicians tell the truth.

Brexit may well create such a situation, a reckoning, though no sensible person would want this to happen.

Or Brexit may not ever get pushed to such a brink, and that those in favour will still get by with lies to cover every new predicament.

The progressive way is for there to be political (and media) leadership: for those with political (and media) power to make make voters care that they are being lied to.

The current state of the opposition parties in the United Kingdom is not encouraging in this respect.

They sometimes seem to be too busy lying to themselves, and blaming others, to be able to focus on exposing the lies of those who govern us.

The one benefit of the general election result is that it creates an opportunity (though no more than an opportunity) for the opposition parties (at least outside of Scotland) to get their acts together.

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A further observation is that Remain – insofar as it can be said to be a cohesive entity – failed when it mattered.

Both in the period immediately before the general election and in the general election campaign itself, politicians in favour of Remain (or at least a further referendum) could have done things differently, and this may have made a difference to Brexit.

There was a possibility of a “government of national unity” (GNU) but that was unacceptable to the (leaders of the) Labour and Liberal Democrat parties.

There was the possibility of electoral pacts.

Of course, such a GNU and/or pact may have just created new problems, and it may have meant that Brexit was only delayed rather than avoided.

But those roads not taken had at least the possibility of a destination other than departure.

And no doubt the lack of a GNU or a pact will be discussed and disputed for decades to come.

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Brexit, of course, is yet to begin.

All that has happened to date has been a mere prelude to what will follow departure.

The general election result has changed little as to the actual problems of Brexit: the task is still as massive and complex as before, and Brexit should not be done at speed and with shallowness of thought.

The capability of Boris Johnson and Dominic Cummings to win a general election just as they won the referendum does not make their approach to other activities any better or likely to succeed.

And so to the warning I mention above: after departure on 31st January 2020 (or whenever), Article 50 comes to an end.

This means the leisurely, last-minute nature of obtaining extensions will also come to an end.

After departure the key Brexit dates will be as set out in the withdrawal agreement, and these dates cannot be varied quickly or easily.

A decision needs to be made by July 2020 whether to extend the transition period beyond 31 December 2020.

Already the United Kingdom government is displaying the self-limiting bravado that served it so badly in the exit process, and it is now committing itself to no extension (and this will be “enshrined in law”).

This is lapped up by the uncritical press and its readers, but the real problem is that politicians will think they can still get quick fixes at the deadline.

Such extensions are far less possible (perhaps not even possible at all) and shows the usual lack of seriousness.

The transition period should continue as long as it needs to, and should not be artificially curtailed.

Let’s hope we don’t learn this lesson the hard way.

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And now to end this post on some positive notes.

The European Union will be more comfortable negotiating with a government with a working majority and this is a good thing for both sides.

The government majority also perhaps lessens the leverage of the “European Research Group” should the prime minister wish to dump on them as he dumped on the Democratic Unionist Party at the end of the last parliament.

The withdrawal agreement being in place will mean that on citizenship issues, and on many other practical matters, there is legal certainty now in place whatever happens at the end of the transition period.

The transition period means that the United Kingdom remains aligned with European Union law and policy for longer, and so may make rejoining or a close association agreement easier in the medium to long term.

And the government’s wish for a speedy trade agreement means that, as with the exit agreement, it will no doubt be on the European Union’s terms, as the United Kingdom has not given itself enough time to formulate any alternative, and this again makes rejoining or a close association agreement easier in the medium to long term.

These may not be great consolations for those committed to Remain.

But the story of the post-Brexit relationship of the United Kingdom and the European Union has not yet begun, and it is not only down to Brexiters to shape what happens next.

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