Patrick Birkinshaw a abordé dans son éditorial automnal de la revue European Public Law la question récurrente d’un nouveau référendum sur le Brexit. Dans le dernier paragraphe de son analyse, il identifie les difficultés d’une telle option, quand bien même pourrait-elle être souhaitable sur le fond. Nous publions l’extrait de cet éditorial qui contribue à mieux comprendre rapidement les enjeux d’une nouvelle consultation du peuple britannique.
Nous remercions une fois encore Patrick Birkinshaw de sa participation active à nos réflexions. Nous en profitons pour vous annoncer la publication de son ouvrage coécrit avec A. Biondi et M. Kendrick : « Brexit : The Legal Implications » aux éditions Wolters Kluwer. Nous en produirons prochainement un compte-rendu sur le site.
Extrait de ‘Brexit Editorial, European Public Law, 24, no. 4 (2018): 621–628.
The escape route toavoid a hard Brexit, should the impasse continue, would appear to be either afurther referendum (with what questions?) or a cobbled together transitional‘as you were’ period requiring an extension of Article 50. Such a developmentas the latter may prevent a serious undermining of the economy and security,but it is neither a permanent nor a stable solution. So, what of a furtherreferendum? Perhaps, with an electorate now better informed on both sides ofthe pros and cons of Brexit, another vote on EU membership would be desirable.The context has changed and the national mood may have changed from over twoyears ago based on fuller information. Democracy entails the right to changeone’s mind and to express a new view. As I have written before in these columnsthis would meet with hostile, possibly violent, opposition. Should the vote be‘Remain’ by a narrow majority the Leave group will re-iterate similar argumentsfor yet a further remain/leave referendum. If the vote emerges again as a ‘No’to membership of the EU, would it be advisable for a referendum to take placeon what sort of exit should follow: a no deal exit or one based on the White Paperwith the implications of both spelt out clearly in advance of the vote? Mrs Mayhas been adamantly against a further referendum. It would undermine her ‘Brexitmeans Brexit’ mantra. Assuming she conceded, Parliament would need to legislatefor such referendums and the time involved in preparations would go well beyond29 March 2019. There are MPs in the Labour party opposed to a new remain/leavereferendum. An extension of the Article 50 timeframe will be inevitable requiringthe unanimous agreement of the European Council of twenty-seven with the UK. Any extension will be up against the constraint of EU elections and will eatinto the 31 December 2020 deadline for the end of a transition period. Thisproblem has become too big for resolution by another general election – thepreference of the leader of the Labour Party. An election would be more likely tocompound the impasse. Both Nigel Farage and Jacob Rees-Mogg have previously arguedfor further referendums – Farage specifically in the event of a narrow ‘Remain’victory, Rees-Mogg as a possibility after negotiation of the exit terms. AsVernon Bogdanor has written, they cannot deny their opponents a similaropportunity (1). A further vote for ‘Remain’ may well lead to a violent back-lash.But it would reduce the serious risk of economic and security catastrophe of ano-deal. In terms of national (and European) welfare, what is the right thingto do must be done regardless of intimidation. Against this background, on 10September M. Barnier announced that he believed an agreement under Article 50was achievable by November 2018. This will have to include proposals for afuture relationship the details of which will then have to be negotiated,agreed and ratified. In his annual state of the Union address to Parliament inSeptember, Jean Claude Juncker re-affirmed that a nonmember cannot enjoy theprivileges of a member. The President of the European Council conveyed asimilar message at the informal meeting of the EU leaders at Salzburg. MrsMay’s economic proposals risked ‘undermining the single market’ and were notacceptable in their present form. In a humiliating arena, she was advised tobring new proposals back within a month.
(1) V. Bogdanor,Brexit Broke Parliament; Now Only the People Can Fix It The Guardian (23 July2018).