Update: 2016-11-06
Writing up an idea in detail can be an effective way to share it, but also to more quickly discover any errors in it by giving others the opportunity to scrutinise it. In this case, a significant error in my understanding of the role of the Supreme Court has been pointed out to me, large enough that the approach described below clearly won't work.
The only judicial function that the House of Lords has retained since the formation of the Supreme Court in 2009 is related to impeachments, which isn't relevant. As a result, cases on the legality of the government issuing an Article 50 notice without the consent of parliament will be heard at all levels of appeal within exclusively judiciary bodies. Further, time has been scheduled for the Supreme Court to hear the case next month, meaning that all avenues of appeal will have been exhausted before any Article 50 notice is issued.
The reverse psychology game remains a feasible strategy of course.
(original text below)
Why the punitive stance of multiple EU member states towards any population attempting to escape the EU's grip might actually help the UK to abort Brexit, even after notice has been given under Article 50.
If you don't know where you're going, you might not get there.
-- Yogi Berra
I have been meaning since the first legal challenges to Brexit were announced earlier this year to describe a mechanism by which the UK government could potentially abort Brexit, with broad public support, even after an Article 50 notice had been issued. This definitely belongs to the category of ludicrously absurd conspiracy theories, except that events are playing out in a consistent fashion, particularly around the central question of whether parliament gets to authorise or veto an Article 50 notice. I would also point out that this mechanism is so uncertain that depending upon it as a primary strategy could be politely described as unforgivably reckless. That said, it might make enough sense as a safety valve that the UK government will have reason to fight very, very hard to keep parliament out of the loop, at least until the final moment.
Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
-- The Lisbon Treaty, Article 50, Paragraph 1
This rather straightforward statement hides a world of detail in its closing words:
- For most EU member states, those words describe a single document (as amended) addressing all of that state's constitutional arrangements, ratified on a single day or over no more than a few years, often less than a century ago.
- For the UK, those words describe an extraordinary series of actions spread over the last 950 years.
By itself this is not a terribly important distinction for Article 50 purposes, but it does mean that in the UK's case those words include - but are not limited to:
- An invasion and successful permanent occupation by a relatively weak foreign force.
- The resulting tradition of common law.
- The creation of extraordinary privileges for the City of London in order to incorporate it by treaty rather than by conquest.
- The invention of limited monarchy, and its later evolution with Cromwell.
- The resulting role of the peers (lords) collectively as the court of last resort.
It is this last item in particular that gives rise to the mechanism that I have in mind. In contrast to most other EU member states (possibly all, I've not checked state-by-state), the UK's court of last resort is not exclusively, nor even primarily, a judicial body; it's a political one. This doesn't mean that they are able to disregard the law, but it is likely to cause them to make greater efforts than the courts of last resort in other member states to reach legally justifiable conclusions that are also politically savvy. The Brexit abort mechanism that this might enable is as follows:
- Members of society at large - a hairdresser named Santos for example - have standing to bring an action to require the government to get parliamentary consent before giving notice under Article 50. Several have done so.
- The government that played chicken with the Brexiteers and lost is clearly not an appropriate one for the next few steps. Her Majesty promptly appointed one better suited to the task.
- The exit government needs to simultaneously adopt a stance of doing what the majority voted for, while also doing everything possible to cause a majority of Leave voters to realise their monumental blunder and to recoil in horror in time for Brexit to be aborted with their overwhelming support. Skipping this step risks civil war. (Think this can't happen - again - in an affluent, developed place like the UK?) The best way to do this is to play a gigantic game of reverse psychology with the electorate by pursuing the most complete exit possible, thereby maximising predicted and observable economic devastation: e.g. it is claimed that smaller banks have already left in response to Brexit fears. It is no doubt a coincidence that Her Majesty chose the more radical of the two options open to her for forming an exit government.
- The hairdresser and friends will successfully argue to the High Court that it does not make sense to claim that parliament intended the 1972 act to be used to exit the EU and - therefore - that the government requires the consent of parliament to give notice. The government will appeal the case to the Supreme Court and successfully argue that the documented intent of parliament in the 1972 act - to give government complete ability to exercise all powers created by the EU - is unambiguous and that it is impermissible for the court to trespass upon it. The Supreme Court will overturn the High Court's ruling. (This is the weakest link in the entire chain, and is the reason that depending upon it is reckless: the Supreme Court might not agree with the government.)
- With luck, the backlash will be sufficient for it to be clear to all that the electorate does not, in fact, support exiting the EU. This will presumably require appointing yet another new government, one which is instead committed to remaining in the EU.
- Should the opportunity to call off the process this early not arise then it will be necessary to give notice under Article 50 to start the 2 year exit clock and negotiation session. If parliament consents, then there will be no way out; the only way to keep an abort option open is to give notice (a) without parliament's consent and (b) with the Supreme Court's ruling that doing so is lawful.
- It is certain that the hawks among EU member states will impose a very bad deal on the UK, in order to strongly discourage the populations of other member states from pursuing the same path. Several have already made public comments to this effect. During the (at least) 2 year process the UK economy will suffer terribly as capital flees, tax revenues fall, and transfer payments collapse. This will wipe out the economies of Birmingham and Manchester and cause a severe downturn elsewhere. Quite what this will do to institutions like the NHS is harder to predict, but it certainly won't improve them. With luck, this degree of economic damage will, finally, cause the Brexit camp to be overwhelmingly viewed as a tiny group of idiots, not as the established position of the majority of the electorate.
- The hairdresser and friends will finally get their case in front of the House of Lords. The Lords - faced with a compelling political interest in aborting the process - will find a legally defensible basis for overturning the Supreme Court's ruling, thereby putting the High Court's ruling back into effect, thereby rendering the Article 50 notice - which must be made "in accordance with [the UK's] constitutional requirements" - constitutionally invalid. As a matter of law, a valid notice will never have been given, which means that Article 50 will never have been triggered, which means that the UK will still be a member in good standing of the EU. Presumably disputes over this will end up in front of the ECJ, but unless the ECJ makes it its business to interpret member states' constitutions - which will endanger the entire Union - the Lords' ruling will stand.
A great deal of the above depends upon a view that the Queen of England is an active part of the governance of the UK rather than a mere figurehead and further that she's engaging in strategic planning and activity rather than simply fulfilling an operational role left over from the Medieval era. I can't prove that this is so, but would suggest that the view that she's simply watching and reacting doesn't make much sense: she's now the world's longest reigning monarch and has perhaps the most peaceful and prosperous reign of any post-1066 monarch of England, despite having had to dismantle the remnants of a global empire. This suggests an engaged and capable monarch, rather than a figurehead.