Should we just take Theresa May's deal? — Evil

No, we should seek a better one. There should be a no confidence vote on the government when the time is right. But if that fails, and it's either May's deal or no deal, then yes, we should take May's deal.

No, we should seek a better one. — S

What basis do you have to think there's a better deal? The government has prioritised control of the UK borders, goods over services. If you want a better deal you need to adjust priorities or there's nothing better to be had.

What basis do you have to think there's a better deal? The government has prioritised control of the UK borders, goods over services. If you want a better deal you need to adjust priorities or there's nothing better to be had. — Benkei

That might be true, but a different government would have different priorities. There could be a change of government as a consequence of a successful vote of no confidence against the government. A government lead by someone other than Theresa May would have a different set of priorities, which would lead to seeking a different deal, and a different deal could arguably be a better deal.

You can say that that seems unlikely, but the same can be said of May's deal passing a vote. So if we're setting aside these kind of considerations in our talk of what should happen, then my preference is for an alternative deal.

Is there still time to get a better deal?

You can say that that seems unlikely, but the same can be said of May's deal passing a vote. So if we're setting aside these kind of considerations in our talk of what should happen, then my preference is for an alternative deal. — S

Sure. And for any government to have enough time to negotiate a new deal will require revocation of the article 50 notice. Works for me.

is that what has to happen?

Given the deadline of March 29, I don't see how else it could work to have elections, a new government with new priorities, which will then negotiate with the EU over a new deal. Given the holidays they would have 3 months. That doesn't seem possible without delaying the deadline and the UK can only do that unilaterally by revoking its article 50 notice.

It would to some extent be an act of self-harm by the establishment within the political system to that very system of which both they and we are a part. That political system is, by the way, a form of democracy. So, although it might not mean or want to be, it is in a sense anti-democratic. — S

I don't see what the contention is here. A referendum would happen if the Parliament voted for it to happen, so would satisfy the current system of democracy and simply be an extension of it.

Just because a second referendum would be more directly democratic than alternatives, that doesn't mean that it wouldn't undermine the democracy of the United Kingdom; and if it risks doing that, then it's not so different to threats of an explicitly anti-democratic nature. — S

I don't see how this works. Why would parliament calling a second referendum undermine UK democracy?

I've argued against some of those reasons. As I've said, the only circumstances in which I would accept a second referendum as a viable option is as a last resort if we were headed straight for a no deal Brexit. — S

This seems to directly contradict your next statements:

The referendum results being treated as binding would mean that the government does everything in their power to follow through on them, i.e leave. It wouldn't just mean triggering article 50, because they have the power to revoke it. The promise wouldn't be fulfilled if the government did anything that risked undermining or effectively invalidating the results, like holding a second referendum. — S

If the referendum was a binding mandate to leave, "does everything in their power to follow through on them, i.e. leave", then there's basis to have a referendum nor a vote in parliament that could revoke article 50. Parliament could vote down the deal, but then there must be a no-deal Brexit.

It's not a principles position to say on the one had "the referendum was binding to leave" but on the other hand "I would accept a second referendum [...] if we were headed straight for a no deal Brexit". It may feel principles, but thee principles are no consistent. The refernedum wasn't a vote for "negotiate a good exit from the EU and if that doesn't work cancel it", so if you want to stick to the results of the referendum as binding to leave, then what follows from this principle is leaving the EU deal or no-deal.

If you accept revoking article 50, either by parliament directly or by parliament calling a second referendum that revokes it, is better than a no-deal Brexit, that is to accept either mandate of the referendum was not to leave deal or no-deal or then the situation has changed enough to warrant reviewing (by parliament or a referendum) the decision to leave.

Your position seems to be that sticking to a principle until it's too inconvenient and then abandoning it, is a more principled position than accepting the position can be abandoned on a more nuanced discussion of the many principles in play.

That interpretation is susceptible to the criticism that there was what was essentially a verbal contract - which was made public knowledge - which stipulated that the government would treat the results of the referendum as binding, even though the referendum was technically only advisory, and even though the ECJ has since ruled that the UK can revoke article 50. It certainly wasn't sold to us as advisory or as a preliminary indication. It could be further argued that if the government were to violate that verbal contract.. — S

The problem, as I've mentioned, is that "parliament" nor "the government" is a single moral agent to begin with, so any MP can argue "they didn't make that promise". On-top of that "what exactly was the promise" is up for debate.

then they should be held to account in some way. There should be repercussions. — S

The available repercussions to levy are voting those responsible out of office.

Moreover, you mention a final say, yet there is already due to be a final say. — S

This is the core problem in your position. If you accept the parliament can have a final say then that final say could be to hold a second referendum to have a "final-final" say (in other words it's not a final say). If you accept the parliament can decide vote one way or another, then they are legitimate in deferring whatever decision they might make to a second referendum.

You seem to be interpreting things already assuming that there won't be a second referendum and the parliament has the right to not-call a second referendum, and somehow that parliament could do this is justification in itself. I agree nothing is forcing UK parliament to call a second referendum, but that they have the power to decide not to call a second referendum implies that they have the power to call a second referendum. The main purpose of my arguments is to show a second referendum isn't somehow anti-democratic, and that parliament could base a decision to hold a second referendum on a wide range of reasonable and sound arguments (that doesn't make those argument true).

Given the deadline of March 29, I don't see how else it could work to have elections, a new government with new priorities, which will then negotiate with the EU over a new deal. Given the holidays they would have 3 months. That doesn't seem possible without delaying the deadline and the UK can only do that unilaterally by revoking its article 50 notice. — Benkei

The process to extend the deadline isn't revoking article 50, nor even require any action on the part of the UK. The deadline is an imposition by the EU, and the EU states can vote to grant an extension; legally speaking they could do it unilaterally but I assume UK would need to ask.

There was an article the other day discussing exactly this, and that France and Spain may be motivated to block granting an extension.

However, I feel no one has any real principles to refer to in casting a veto against an extension for a second referendum to happen (although there's lot's of principled reasons to not grant the extension simply for the UK negotiate more), and it's very difficult to block a whole continent wide "almost consensus" for narrow self-interest (or just to spite the English). There's too much at stake and there would be too much pressure from Germany and the Nordic EU members and EU bureaucrats against a potential French veto for more time for a referendum.

I'm not saying it's guaranteed ... it would be a crazy irony that the French give UK time to have a second referendum, while dealing with the yellow-vests who have mostly consolidated around a demand to have more referendums in France. So it wouldn't be comfortable for France ... but the UK revoking article 50 is I think also sufficiently humiliating for the English political class and still weakens the UK's position within the EU for some time and simply revoking article 50 is a lot easier to deal with (French businesses don't want Brexit either).

All the options are bad now that the UK has verified that the EU won't give them a better deal (including not being willing to bend core EU principles to solve internal UK problems that any form or Brexit creates), but a second referendum seems to me the only way to really "settle" the issue and move on.

A no-deal Brexit would be an order of magnitude greater political suicide for the conservatives, potentially lead to large social unrest and serves no purpose.

If May's deal has no Parliament or public support (since it's clearly just a worse way to stay in the EU), then there's really no reason to pass it and even if they (whoever thinks it's a good idea, presumably May) managed to force it through it may result simply in wanting to get back in the EU later.

Parliament voting to revoke article 50 simply proves the Brexiters fear-mongering that the Parliament would never respect a leave vote and would just dilly-daddle and then cancel it. A second referendum is much easier to defend and provides some closure. The argument "it's not fair to vote again" simply doesn't holdup to scrutiny, and Brexiters holding on to this would eventually just be sulking in a corner.

Edit: Brexiters would probably still say it was dlli-daddling anyway, but there is actually a deal on the table and plausible basis to believe it's close to the best the EU would offer. More importantly, the prominent leavers are no where to be seen, so the "bad-faith" argument is much easier to throw at the leave campaign of not having a clue how to actually leave. For instance, UKIP hasn't been stumping everyday demanding that they should lead the negotiations since they would easily get so, so many concessions so easily from the EU and that a "better deal" would be this, this and that (the embarrassment of demonstrating their ignorance about what to do is worse than staying silent and implicitly accepting their bad-faith, but having the consolation prize of re-emerging after article 50 is reversed to accuse everyone else of bad-faith too). In other words, if Leave is A. better for the UK and B. the government was negotiating in bad faith, then certainly we'd hear about it from the Leavers: since we don't hear from them on how they would be easily doing it better, it's pretty easy to argue that they weren't of good faith to begin with (that their campaign was to build momentum for isolated aspects of their platform, such as anti-immigration, that they would have continued to beat on about when remain won the referendum, which everyone assumed, and their campaign was not some actual plan to leave the EU and resolve all the issues that creates).

Given the deadline of March 29, I don't see how else it could work to have elections, a new government with new priorities, which will then negotiate with the EU over a new deal. Given the holidays they would have 3 months. That doesn't seem possible without delaying the deadline and the UK can only do that unilaterally by revoking its article 50 notice. — Benkei

It wouldn't necessarily lead to a general election. The Tory party would have a chance to form an alternative government. Either way, I don't think that it's impossible to obtain an alternative deal either in that in time or with an extension. I'm sure that contingency plans have been considered and discussed, and the opposition party has been in talks with the EU from the start, so it's not like there'd be starting from scratch. And a general election takes place over just a single day.

According to the guy who actually drafted article 50, who probably knows what he's talking about, you're wrong about a delay:

Almost certainly that will require some extension of the article 50 deadline beyond 29 March. The treaty is very clear about this – it can be done but requires unanimity among all EU states. If our purpose in asking for an extension was to allow time for a referendum, there is no doubt that all would agree. Brexit would be bad for everyone, though obviously worst for us. — John Kerr, The Guardian

https://amp.theguardian.com/commentisfree/2018/dec/06/drafted-article-50-brexit-referendum-eu-state

And there are other articles accessible online which confirm that it is possible for article 50 to be extended.

One possible option would see Parliament having a role in deciding whether to extend the transition period or enter the backstop arrangement, if no trade deal has been reached by the end of December 2020.

The transition period is due to kick-in when the UK leaves the EU on 29 March. It can only be extended once for "up to one or two years" - but if the two sides have still not agreed a deal by the end of that second period, then the backstop will apply.

[...]

They could, as the agreement already suggests, just extend the "transition period", giving the two sides longer to come up with a free trade deal that would mean the dreaded backstop is never used. — BBC News

https://www.google.com/amp/s/www.bbc.co.uk/news/amp/uk-politics-46472824

Corbyn has said that the earliest an election could take place is February - as a month needs to pass after a government has resigned before a vote can take place.

If Labour won, he said he would still want to pursue Brexit, and try to get a deal agreed before 29 March 2019 - the day the UK is set to leave the EU.

When asked about a second referendum, he offered no support, saying: "I think we should vote down this deal; we should then go back to the EU with a discussion about a customs union."

https://www.bbc.co.uk/news/amp/uk-politics-46658335

It seems to me my post was spot on:

the UK can only do that unilaterally — Benkei

I'm not banking on the support of the EU for a delay at this point.

It wasn't that part that I was taking issue with, it was the part immediately after, where you said "by revoking article 50". As I understand it, it wouldn't be revoked, and it wouldn't need to be. It would just be extended.

And I've just seen this:

The process to extend the deadline isn't revoking article 50, nor [does it] even require any action on the part of the UK. — boethius

Which basically makes the same point. So, spot on? I don't think so. :snicker:

I'm not banking on the support of the EU for a delay at this point. — Benkei

Nevertheless, it could happen.

Extending the deadline is not a unilateral action. That would have to be agreed. The only unilateral action available to the UK would be a revocation. My post didn't deal with any agreements to be made with the EU, because parties can always agree to whatever new terms they want. That isn't an interesting point to make.

Extending the deadline is not a unilateral action. That would have to be agreed. The only unilateral action available to the UK would be a revocation. My post didn't deal with any agreements to be made with the EU, because parties can always agree to whatever new terms they want. That isn't an interesting point to make. — Benkei

I don't really get your focus on unilateral options available to the UK. What's relevant is that article 50 can be extended if need be, whether you find that point interesting or otherwise. And it's relevant because it could pave the way for alternative paths.

I was replying to what you thought was a mistake. And perhaps as a contracts lawyer the obvious to me might be of interest to you but I assumed everybody knows parties can always change their agreement. That goes for agreements between sovereigns as well. Apparently that assumption is a bit too optimistic. At the same time, not everybody is aware of the ECJ ruling though because the right to unilateral action is usually restricted. Otherwise treaties wouldn't be worth the paper they're written on.

Meanwhile I'm still waiting for that apology for not reading carefully what I wrote and insisting I was wrong where I wasn't (twice).

Alright, I admit that you got me there with the unilateral qualification. I didn't read carefully enough and missed that. Twice. Sorry! :razz:

You may consider that rare admission of error and apology a Christmas present. :grin:

I'm not sure if the confusion has been cleared up already, but there are two extensions.

Extending the negotiation deadline is a EU decision, i.e. the EU could unilaterally decide to not impose border controls and tariffs and extend the article 50 deadline to some later date. For instance, if the UK is in parliament deadlock, vote of no-confidence the week before the deadline, and simply does nothing, the EU could decide to grant an extension (there is no set process that the UK must request a extension by some formal mechanism, the EU could decide it by themselves to; to avoid chaos for EU citizens and business for instance).

However, absent parliament deadlock and a collapsed government, presumably it would be a mutual thing to agree on an extension. I mention the EU could grant an extension unilaterally just to underline that article 50 is an EU law and changing it would require an EU decision process: The consensus of all the EU countries. So in theory a single EU country could block an extending of the article 50 deadline (apparently France and Spain would be the most motivated).

These are small details but could become suddenly relevant.

Extending the article 50 deadline is not the same as extending the transition period that is part of May's agreement. Once May's agreement is in place, the whole article 50 deadline goes away and a new bilateral treaty between the UK and EU is in place ... which basically keeps the UK functionally in the EU for a period that could be extended unilaterally by the UK for up to 80 years (expressed by using 20XX as date placeholder, which to me is a weird way of saying it).

I'm not banking on the support of the EU for a delay at this point. — Benkei

I don't really get your focus on unilateral options available to the UK. What's relevant is that article 50 can be extended if need be, whether you find that point interesting or otherwise. And it's relevant because it could pave the way for alternative paths. — S

I agree here with Benkei that the EU would not help in the case of UK wanting to extend article 50 simply to negotiate more.

However, if the UK asked for a 1-2 month extension in order to do a referendum, in diplomatic parlance the EU would "look like a douche" for not granting that, so I think it would be likely. At the end of the day the EU still doesn't want the UK to remain and a referendum to remain would be the best way to put the issue behind to rest.

Given the cost of Brexit to the UK and that many issues still have no way to resolve (good Friday agreement) and that Brexit will supercharge Scottish independence and maybe Whales, and all the prominent Leavers jumped ship, I think the EU would be confident that the UK wouldn't start the whole thing over again any time soon.

The only unilateral action available to the UK would be a revocation. — Benkei

The more I think about this, the more tricky it becomes. At the moment it isn't official, just the recommendation of some top EU lawyer. But if it was official, any country could trigger article 50, try to get a better deal and if not revoke article 50; doing it whenever they want as much as they want. This may lead to the EU being forced to simply not negotiate whenever article 50 is triggered but offer only "crash-out or revoke"; not sure if this would be a good development or not, nor if the EU court would consider this scenario in a final decision to allow unilateral revoking (of course, revocation could always be bilateral).

Edit: Unilateral revoking of article 50 would even allow a group of countries to do it together, protesting this or that, and create one-sided brinkmanship since they can just cancel a minute before the deadline. Since all countries have to be treated equally within the EU, there's nothing the EU could do to disincentivise this sort of behaviour. As a contract lawyer, , I imagine you'd never accept a party able to cancel a deal, try to negotiate a better deal and shop around, and then be able to simply cancel the cancelling and go back the first deal if they don't find better.

I agree here with Benkei that the EU would not help in the case of UK wanting to extend article 50 simply to negotiate more. — boethius

Even under a late change of Prime Minister who was open to a deal seen as more attractive by both the EU and parliament? I guess they could try to force us into cancelling Brexit or leaving without a deal. If it was Corbyn in charge, maybe he'd fail to get a better deal and bow down to the pressure of having a second referendum. Or it could all backfire spectacularly and we end up leaving without a deal, with both sides ending up worse off than otherwise.

I guess they could try to force us into cancelling Brexit or leaving without a deal — S

Yes, this is the EU's current position.

It could change of course, but Benkei and I both agree that it's very unlikely the EU would grant an extension simply to see if the UK could get a better deal.

Benkei finds it unlikely the EU would grant an extension even for a time to have a proper second referendum, whereas I think they would do that; but the decision would be up to EU governments. Without EU governments being unanimous in changing the treaty, EU technocrats in Brussels would be forced to eject UK from the EU, as that's the law as it stands.

Even UK's right to revoke article 50 (i.e. without all the EU governments agreeing) is not officially a law, just recommendation as I mentioned. It could be basically the EU trolling the UK (messing with May's ability to say "Brexit is locked in, it's deal or no-deal"), and they'd actually not give unilateral revocation rights (as it's a crazy precedent; an analogy would be the right to give your work 2 weeks notice, then just send an email the night of your last day and then just show up and keep working there if your other plans fell through; "no backsies" is a pretty well established legal precedent, so this whole "right to revoke article 50" doesn't have any legal foundation as far as I can see).

Or it could all backfire spectacularly and we end up leaving without a deal, with both sides ending up worse off than otherwise. — S

As it stands, the EU views a no-deal Brexit far more painful for the UK than the EU, whereas showing the EU red-lines (the so called "pillars") can be bent would undermine all further EU negotiations with both member states and trading partners as well as create a "UK trading backdoor".any country could exploit. This is why most experts say there simply is no better deal to be had, and May's deal is way better than they expected (expectation was UK would be punished in someway, whereas May's deal is pretty fair and allows UK to simply delay the real problems leaving entails until the end of the century; problem is there's no real basis to say the deal is better than staying in the EU, and 80 years of transition would basically be a diplomatic farce).

It could change of course, but Benkei and I both agree that it's very unlikely the EU would grant an extension simply to see if the UK could get a better deal. — boethius

I'm not just talking about the UK getting a better deal, I'm talking about a better deal for both. But anyway, I don't think that I'm disagreeing with either yourself or Benkei to any great extent on this point. You may well be right that it's a long shot. But it's not impossible or absent of any incentive, and it's what I'd push for until I'd exhausted all of my efforts and concluded that it was necessary to turn to a Plan B.

The more I think about this, the more tricky it becomes. At the moment it isn't official, just the recommendation of some top EU lawyer. — boethius

Case law ECJ to revoke article 50

I haven't studied the decision in detail but a quick scan suggests that the article 50 notice is considered a declaration of intent to leave and not a formal notice. The distinction seems a bit silly so maybe someone who had more time can read the whole thing.

In any case, not just opinion.

In Wigan, people constantly tell me that they will never vote again if the result is overturned. There has long been a loss of trust in politicians, but the chaos surrounding Brexit is provoking a collapse of trust in democracy itself. There is no route to healing the country and beginning to rebuild those communities that have lived through decades of decline without that trust.

In Britain, we are beset by waves of populism and a resurgent far right that thrives on fear, mistrust, and democratic crisis. Our institutions—from Parliament and the political parties to the media and civil society—are simply not fit to respond. The vote to leave the EU was a political earthquake, a clamour for change that has been a long time coming. As Abraham Lincoln put it, in no less a moment of historical rupture, “The dogmas of the quiet past are unfit for the stormy present.” That is the hard truth for our political system. We elected representatives cannot carry on divorced from an understanding of the sentiment out in the country. We either adapt and change, or we will be erased. — Lisa Nandy MP

In any case, not just opinion. — Benkei

By opinion I meant simply to differentiate with a ruling by the court. But I seem to be behind the times, I wasn't aware a court has made a ruling recently, previously I had only read about the ombudsman recommendation, or is this a separate thing?

Also, it says in this document "preliminary ruling", is there further steps to get to a final ruling, or this legaleze to say final ruling in this context for some reason?

Thanks for posting the link, it's an interesting read. They did indeed consider the crazy abuse unilateral revocation of article 50 would create:

38. The Council and the Commission, while agreeing that a Member State is entitled to revoke the notification of its intention to withdraw before the Treaties have ceased to apply to that Member State, dispute the unilateral nature of that right.

39. According to those institutions, the recognition of a right of unilateral revocation would allow a Member State that has notified its intention to withdraw to circumvent the rules set out in Article 50(2) and (3) TEU, which are intended to ensure an orderly withdrawal from the European Union, and would open the way for abuse by the Member State concerned to the detriment of the European Union and its institutions.

40. The Council and the Commission argue that the Member State concerned could thus use its right of revocation shortly before the end of the period laid down in Article 50(3) TEU and notify a new intention to withdraw immediately after that period expired, thereby triggering a new two-year negotiation period. By doing so, the Member State would enjoy, de facto, a right to negotiate its withdrawal without any time limit, rendering the period laid down in Article 50(3) TEU ineffective.

41. In addition, according to those institutions, a Member State could at any time use its right of revocation as leverage in negotiations. If the terms of the withdrawal agreement did not suit that Member State, it could threaten to revoke its notification and thus put pressure on the EU institutions in order to alter the terms of the agreement to its own advantage.

42. In order to guard against such risks, the Council and the Commission propose that Article 50 TEU should be interpreted as allowing revocation, but only with the unanimous consent of the European Council.

This argument makes complete sense to me.

I can honestly not follow how the conclusion to grant unilateral revocation rights is reached. Basically they refer to the principle that a country cannot be forced to leave the union against their will ... but the purpose of triggering article 50 is exactly a willful exit. It seems (to me) pretty weak quibbling to say a "that Member State changes its mind and decides not to withdraw from the European Union" is now "forcing the member state to leave against their will".

So will be interesting if this isn't the final decision if it gets reversed, likewise if the ruling become final, or is already final, it's interesting how the EU would deal with future article 50 negotiation (or that they have to amend the treaty to make the "exit as a member state" immediate at the start of article 50 but a 2 year status quo agreement, or something along those lines).

So will be interesting if this isn't the final decision if it gets reversed, likewise if the ruling become final, or is already final, it's interesting how the EU would deal with future article 50 negotiation (or that they have to amend the treaty to make the "exit as a member state" immediate at the start of article 50 but a 2 year status quo agreement, or something along those lines). — boethius

It's a final decision. It's based on a request of another court on the interpretation of EU law, in this case a Scottish Court. People can appeal the decision of the Scottish Court but not the basis of that interpretation which is now established EU law.

No, we should seek a better one. — S

Hasn't the EU already told us it's this deal or none? They are the biggest economic power bloc on the planet. Once we've left, we're just a third-world country struggling (and failing) to accept the end of our Empire. The position we occupy in the world, on the UN Security Council, and our privileged position in the EU, are all courtesy based on our history. We no longer rate that kind of respect, as we are about to find out when we leave our cosy seat in the EU....

Hasn't the EU already told us it's this deal or none? — Pattern-chaser

Jesus Christ. How many more times? Yes, they have told us that. It's called playing hard ball.

They are the biggest economic power bloc on the planet. Once we've left, we're just a third-world country struggling (and failing) to accept the end of our Empire. The position we occupy in the world, on the UN Security Council, and our privileged position in the EU, are all courtesy based on our history. We no longer rate that kind of respect, as we are about to find out when we leave our cosy seat in the EU... — Pattern-chaser

You are preaching to the choir. I voted to remain.

Then why mention a 'better deal'? There won't be one.

Then why mention a 'better deal'? There won't be one. — Pattern-chaser

Firstly, do you believe everything you're told? Secondly, can I borrow your crystal ball? I would like to know whether I'll win the lottery.

You are preaching to the choir. I voted to remain. — S

Given that you are happy to pay £13billion in fees, £4billion in fish, £4billion in benefits to EU citizens, to sustain a £95billion deficit in traded goods, for whatever benefit you think you get in return, why does no other country pay the same?

Firstly, do you believe everything you're told? Secondly, can I borrow your crystal ball? I would like to know whether I'll win the lottery. — S

I believe Project Fear has such a device, though it seems to be malfunctioning for the last couple of years.