After weeks of tumultuous news, we’re surely due a break. But on two critical fronts, we may not be near the end at all, only the end of the beginning. We have entered a world in which, as a recent book on Putin’s surreal Russia put it, Nothing is True and Everything is Possible.
The first, and nearest to home, is the growing legal challenge to Brexit. Scottish Legal News reported this week that more than 1,000 barristers and advocates have urged the Prime Minister to allow parliament to determine whether the UK should leave the European Union.
This “revolt of the lawyers” raises searching questions about our political constitution: whether major issues are to be settled by the free votes of MPs, or a declamatory or delegated democracy in which major issues are settled, either by direct verdict of voters in a referendum or by an election in which MPs are mandated to vote in line with the wishes of voters.
The second is the long but fizzing fuse that the UK’s Brexit vote has lit under the current political order in Europe. Warnings in the past two weeks from the IMF and credit rating agency Moody’s have pointed to the growing threat of instability and major political upsets over the coming months. Joseph Schumpeter’s concept of “creative destruction” could prove as applicable to contemporary politics as to economics.
What is the substance of the Lawyers’ Letter, and how legally valid are the objections? It argues that the referendum did not set a threshold necessary to leave the EU, commonly adopted in polls of national importance, eg, 60 per cent of those voting or 40 per cent of the electorate (a hurdle, ironically, to which the SNP strongly objected when introduced for the 1979 devolution referendum). “This,” says the letter, “is presumably because the result was only advisory.”
It says a parliamentary vote should take place “with a greater understanding as to the economic consequences of Brexit, as businesses and investors in the UK start to react to the outcome of the referendum”.
The letter calls “as a matter of urgency” for a royal commission or an equivalent independent body to receive evidence and report, “within a short, fixed timescale, on the benefits, costs and risks of triggering article 50 to the UK as a whole, and to all of its constituent populations. The parliamentary vote should not take place until the commission has reported.” Edinburgh-based Advocate Manus Blessing, a signatory and member of Arnot Manderson Advocates, told Scottish Legal News that having a vote in Parliament “is both the correct thing to do, and the only legal thing to do… Failure to have Parliament’s authority to such an action means that the executive would disregard the European Communities Act 1972. Such a course is undesirable generally, and is of doubtful legitimacy.”
I have received advice from a senior Scottish legal authority on this letter and its implications. It tells me the referendum is not legally binding because there is no express provision in the EU Referendum Act 2015 to this effect.
Under traditional constitutional theory, the government can, legally, acting solely under the Royal Prerogative, enter into, and withdraw from, international treaties without parliamentary consent. However, this is subject to qualifications in giving notice under Article 50.
Strict constitutional theory, it can be argued, has been departed from in practice and that a convention is recognised that the Royal Prerogative would not, or even could not, be exercised without at least Parliamentary deliberation, if not consent.
Were this legal challenge to succeed, the government would need to introduce a bill giving effect to activating Article 50. A Commons majority is by no means assured. The SNP would be solidly opposed, as would many Labour and Lib Dem MPs, together with determined Tory Remain MPs.
Prime Minister Theresa (“Brexit means Brexit”) May, could then call an election. But this may not settle matters either as the new Commons could still choose not to support. The wider political consequence of the Commons going against the referendum vote is likely to be volcanic. While most voters in Scotland would be delighted, many of the 17 million Leave voters – the biggest mandate ever in UK history - would feel embittered and betrayed.
Meanwhile, what of likely events in the EU? European Commission president Jean Claude Juncker may ooze confidence that it is business as usual; that Brexit is a purely UK problem and that EU integration can carry on – and may now be able to do so at a faster pace.
But that would be to ignore growing political risk in the eurozone. Even before the UK referendum, the IMF warned about political tensions in the region. An IMF report just before the UK referendum said that “growing political divisions and scepticism have put the euro area at a critical juncture”.
With interest rates in the eurozone already at record lows, the IMF has downgraded its economic forecasts and warned there is “very little policy space to cope with adverse shocks”.
Now credit ratings agency Moody’s warns of warned of spreading shockwaves from Brexit. The UK vote, it said, could even topple the whole EU project.
Two flashpoints lie ahead. Italy faces a critical constitutional referendum in the autumn. Prime minister Matteo Renzi is fighting a rise in the polls of the Eurosceptic Five Star party. The banking system is staggering under £300 billion of bad debt (17 per cent of loans are bad). The government is helpless, but the EU, and Germany in particular, are opposed to a bail-out.
In France, president François Hollande is badly trailing the Euro-sceptic Marie Le Pen in opinion polls with presidential elections due in April and May next year.
Both countries face deep political as well as economic challenges, and the outcomes in both will have a major bearing on the future of the EU’s direction of travel and the cohesion and stability of the EU as a whole.
Whether at home with the legal challenge to Brexit or at the heart of the eurozone, little looks settled at all. Fast changing news really should now come with a warning: “Nothing is True and Everything is Possible.”