Tuesday 21 June 2016

UK and the EU (12) - Final post of this series

On Thursday 23rd June, the United Kingdom will make its decision in the EU Referendum: Remain or Leave.  This series of 12 posts and an earlier post (Brexit ~ referendum ~ a few points) are my attempt to present factual information to assist with what is undoubtedly a most difficult decision about the future of our nation.

I spent a considerable amount of midnight oil writing a longer piece setting out my view and the reasons for it.  It was an interesting exercise but it also led me to the conclusion that it is not the role of a law blog to seek to persuade anyone to vote one way or the other.  I have therefore settled for setting down the links to the main official information issued by government and Parliament as well as links to the earlier posts in this series.

Above all, cast your vote.  As Abraham Lincoln said - "Elections belong to the people. It's their decision. If they decide to turn their back on the fire and burn their behinds, then they will just have to sit on their blisters.”

For my own part, principally because of the likely economic impact of Brexit, I will vote to remain.  The EU is far from perfect but the issue before us is very complex and a vote to leave will have massive economic and political consequences.  For instance, the EU is highly unlikely to be willing to offer the UK the same access to the single market that it enjoys as a full member.  That could result in profound and adverse impact on business in the UK and future trading arrangements may take years to establish.  There are also likely to be serious consequences in other areas such as the fight against terrorism and crime with an international dimension.  In the event of a Leave vote, much will depend on future negotiations as to what kind of arrangement is achievable.  Politically, depending on the outcome, it could call into question the very future of the United Kingdom as a "Union" of England, Wales, Scotland and Northern Ireland.  Regarding Ireland, would a customs border between Northern Ireland (out of EU) and the Republic of Ireland (in the EU) be acceptable?  Almost certainly not!  Given the common trading arrangements across this border, the imposition border controls will have the potential to destabilise the Northern Ireland "peace process" based on the 1998 "Good Friday Agreement."  [See BBC News August 2019].

The referendum has some serious flaws.  For example, there is no requirement in the EU (Referendum) Act 2015 for there to be a pro-Brexit majority in each of England, Wales, Scotland and Northern Ireland - (i.e. the constituent parts of the UK). Thus, a simple majority will decide the issue and the result - either way - could be very close and that would lead to serious division in the UK.

There are further likely problems with the Article 50 process by which the UK will leave - if that is the decision.  Article 50 is not, in my view, well-drafted and has never been tested.  Just one such question is whether a notification of leaving can be unilaterally withdrawn.  Better understanding of this process is certainly required before committing the UK to it.

The question on the ballot paper seeks to reduce this entire complex question to a simple binary "in or out" vote and places no controls over how Ministers might go about withdrawing the UK from the EU.  There are no questions about the form that leaving might take.  Will there be an agreement for the future relationship and, if so, what form will it take.  What would be the consequences if such an agreement is not reached?

A further question exists as to the role of Parliament in the event of a leave vote.  The referendum outcome cannot be binding in law because the Referendum Act does not even try to make it so.  Action by Parliament to implement the outcome therefore seems to be necessary and that raises deep questions about whether Parliament should act independently and make its own decision or merely rubber stamp a referendum leave vote.  Referendums cut across both the sovereignty of Parliament and UK's tradition of representative democracy.

The main official information:

The results of the Prime Minister's negotiations with EU leaders are set out in European Council Conclusions of 18 and 19 February 2016.  This "deal" will only apply if the UK referendum is in favour of the UK remaining a member.  This analysis by Slaughter and May takes a useful look at the deal. 

The Referendum Act 2015 required that certain material be published to inform the referendum -

The best of both worlds: the UK's special status in a reformed EU

Alternatives to membership: possible models for the UK outside the EU 

Rights and Obligations of EU Membership

Parliament has published - The UK's EU Referendum 2016 explained and  EU Referendum: impartial information to help you decide and - Impact of an EU exit in key UK policy areas 

The Balance of Competencies Review conducted between July 2012 and December 2014 produced 32 reports.   This was an extensive examination of most key policy areas.  It looked at what the EU does and how it affects the UK.

: Earlier posts in this series :

20th February - Brexit ~ referendum ~ a few points - including link to the deal secured by the Prime Minister

UK and the EU (1) - History and Background

UK and the EU (2) - The EU Treaties - key points

UK and the EU (3) - The Parliament, the Commission and the Court

UK and the EU (4) - Freedom of movement of persons

UK and the EU (5) - Referendum - People need facts not slogans (Lord King)

UK and the EU (6) -Will Brexit be a simple process?

UK and the EU (7) -Your Rights

UK and the EU (8) - Trading bloc or emergent State

UK and the EU (9) - A monumental referendum - information to assist

UK and the EU (10) - What if it is Brexit 

UK and the EU (11) - The event horizon approaches - What if it is Brexit

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