Is Brexit Reversible?

Before the UK General Election, the country was experiencing a real momentum towards Brexit. Leaving the world's largest trading bloc was seen by most people as inevitable. Remainers chose silence or, at least, they did not articulate loudly the message of "Remain". Many of those who wanted Brexit entertained no possibility of a reversal and a few even regarded advocating remaining as a form of sedition. But could the UK still choose to remain in the EU? Could the UK change its mind? Indeed, has the pendulum begun to swing?

The pendulum may well have swung towards a softer Brexit. Many commentators now believe that a majority of MPs in the new Parliament favour a softer Brexit but could it ever swing all the way to Remain?

States change their mind all the time. France left NATO in 1966 but returned fully in 2009. The USA left the International Labour Organisation in 1977 but then rejoined three years later. Indonesia announced in 1965 that it was leaving the United Nations but changed its mind the following year and everyone moved on. Norway indicated twice that it would join the EU but it changed its mind twice. Equally, Ireland changed its mind in various EU referendums. Indeed, the UK voted in a referendum in 1975 to remain and then voted in the 2016 referendum to leave. So the UK changing its mind is not impossible. 

However, there are several substantial obstacles to a change of mind. Most of the UK's media is very firmly in favour of Brexit and any reversal would have to withstand sustained criticism - one need only recall how the three English High Court judges who decided that Parliamentary approval was needed to trigger Article 50 of the Treaty on European Union were labelled "Enemies of the People". There is a stoicism about the UK mindset that the vote was held and now the result must be implemented and it "would not be cricket" to force a re-run. Many politicians who were Remainers have become Brexiteers - Theresa May made potent arguments for Remaining in the weeks before the Referendum but once the result was announced, said she would implement the will of the people and did so with vigour. 

What would it take for the UK to change its mind? Are there any lessons to be learned from other situations where countries changed their views?

First, a period of reflection is needed before a country is likely to change its mind. In the case of Denmark and Ireland, the second referendum occurred many months later. Absorbing a referendum result is like a grieving process - you just have to work through the stages.

Secondly, the EU has to make concessions. The EU must recognise and address the issues involved. The EU must meet the UK some way. It is tempting for the EU not to do so: the UK was always the most troublesome Member State and its departure could help the EU to become more deeply integrated. It is also tempting for the EU to avoid the UK being seen to be rewarded for threatening to leave.  But the EU would gain by the UK remaining. So what could the EU do to encourage the UK to remain? 

Without taking sides on the issues, there are many bridges which the EU could build - statesmanlike - with the UK.

A key issue in the UK is migration. The EU could adopt a regime whereby all Member States could choose on an individual basis to limit future migration (or, more accurately, movement) from elsewhere in the EU to a certain percentage level of the host population - States would not be obliged to agree to the limit and could choose to do so or not - this is no different that the EU agreed in various Accession Treaties in respect of new States acceding where the pre-existing States could choose whether to admit workers from the new Member States. However, this choice would be accompanied by a limitation in some other area.

The EU could engage much more in the public dialogue and discourse in the UK. It could participate in media discussions. It could reach out to civil society and business to explain the consequences of leaving and the benefits of staying. It needs to explain to the UK's population why it is sensible to stay. The EU should make the case in the UK for the EU and should avoid any negative or unhelpful tone or disposition towards the UK.

The EU needs a cohort of people to champion or advocate the EU to the UK people. It has been several years since someone from the UK held the most senior position in an EU institution. It is a pity that  the UK's main role in recent years in regard to, for example, the appointment of the President of the European Commission was more to block a candidate than to advocate one of their own. It may be too late but it could be part of a reform package.

There is little point in having a second referendum unless there is a change in circumstances and what is on offer.

Another key part of the possible reversal is for the EU to ask, in a serious and incisive manner, why people voted the way they did. This was done, for example, in Ireland and helped to calibrate a response from the EU which may well have changed the direction of the vote in the second referendums. The same might just happen in regard to the UK - the General Election outcome might well be a hint that change is underway but the question is can the EU be statesman-like and seize the moment?

For more information, contact Dr Vincent J G Power, Partner in EU Law, A&L Goodbody.

Date published: 29 June 2017