Ronan McCrea: 'Remainers are frozen to the spot as all around them Brexit flames grow higher'

The last weeks have seen several Remain politicians pass votes in the House of Commons that restrict the UK government's ability to raise taxes if there is a no-deal outcome and to force Theresa May to come back to parliament with a new plan within three days if her plan is rejected by MPs today.

Leading Remain figures such as former prime minister John Major and influential academic and commentator Timothy Garton Ash have also joined the fray calling for the UK to pause the Brexit process in order to convene a kind of constitutional convention to decide what the UK wants from Brexit and how to achieve it.

Behind both of these proposals is the hope that the defeat of Mrs May's deal will lead the UK to think again and, ultimately, to abandon Brexit. I share their view that Brexit is a historic mistake but worry that, at this late stage it may be too late to reverse.

A no-deal outcome happens automatically under EU law on March 29 unless one of three things happens. The first would be for the UK to ratify the Withdrawal Agreement. The second would be for the UK to revoke the decision to pursue Brexit entirely. This would require a second referendum, an outcome currently rejected by a large majority of MPs.

The third option is for the other 27 members unanimously to agree to extend the deadline beyond March 29.

Might the EU27 agree to extend Article 50 to allow the kind of constitutional convention on Brexit suggested by John Major, to take place? That is highly uncertain. Many member states will not be significantly affected by Brexit and already resent the vast amount of time and energy that Brexit has taken up over the past two years.

While the EU27 would almost certainly agree to extend Article 50 for a few months to allow the UK to pass legislation to implement the Withdrawal Agreement, agreeing to a pause for a constitutional convention would involve adding months, maybe years, to the process.

Furthermore, there is no sign of any emerging consensus on Brexit in the UK, meaning that the UK may be as divided at the end of a convention process as it is now. In these circumstances, it is hard to see all 27 states agreeing to a lengthy extension of a process that many of them see as having dragged on far too long already.

Looking back, the British political system's utter failure to manage the Brexit process is striking. Unlike Ireland, the UK has very limited experience of referendums, and this lack of experience has shown. Ireland's written Constitution means that in advance of a referendum the precise legal consequences of it passing have to be spelled out.

In contrast in the UK, no detail on what form Brexit would take was given. Unbelievably, Theresa May, and a huge majority in the House of Commons, voted to trigger Article 50 knowing that it had a strict two-year time limit when the UK had yet to work out what it wanted out of the Brexit process.

John Major is right that there was a strong case for a constitutional convention to work out a form of Brexit that could command widespread support, but the time for that was before Article 50 was triggered, not 11 weeks before Brexit day.

Shocking as the mistakes have been, they cannot be undone. The problem for Remainers is that there is insufficient time for them to take the steps necessary to reverse Brexit and they are unlikely to succeed in extending that time without much more political support than they currently have.

Deciding to change your political position is difficult at the best of times. Doing it under the current fraught conditions in the UK may be almost impossible.

The danger for Remainers is that if they 'freeze', refuse to compromise and reject Mrs May's deal, they risk bringing about the hardest Brexit possible.

They are right that the decision to vote Leave was misguided but digging in and wishing the Brexit vote had not happened may leave them in a position akin to refusing to flee a burning building because if people had only listened to you, the fire would not have broken out in the first place.

 

Ronan McCrea is Professor of Constitutional and European Law at University College London