A Brexit scenario when exit is not so easy

by George Hatjoullis

The weight of money seems to be on a Remain vote. Nevertheless there is a non-trivial probability of the Leave vote prevailing. Does this automatically mean exit will follow? The odd answer is that it does not. The Referendum is not legally binding on Parliament and Parliament must still pass the legislation necessary to give legal force to exit. Parliament as currently constituted does not favour leaving the EU. What if Parliament refused to ratify the necessary legislation?

The Prime Minister would almost certainly call a general election (assuming he can persuade 2/3 of sitting MPs to agree otherwise the situation remains until the next general election is due). However, a general election might still produce a parliament constituted against leave because the electoral process is first-past-the-post. There might be cries of constitutional crisis and demands for electoral reform but the UK would not yet leave the EU. What arguments might parliamentarians conjure up to justify defying the referendum outcome?

The main one would be the turnout and the narrowness of the majority of votes cast. If the turnout is 60% and the vote is 51%/49% of votes cast then only 30.06% of the electorate would have actively voted to leave. Unless the turnout is 100% or the % in favour of leave exceptionally high this argument will be possible to some extent. Of course, this argument works both ways but in the case of a vote to remain there is no parliamentary test to pass. MPs would no doubt argue that the UK’s first-past-the-post system better represented the will and interests of the passive (non-voting) electorate. You may not agree but they will argue the case.

The second justification will be Scotland. There is no question that the Scottish referendum was influenced by uncertainties such as the use of the pound and the immediate EU status of an independent Scotland. The Scottish people seem to value membership. If the UK votes to Leave then the Scottish Parliament will immediately demand a referendum on independence and appeal to the EU for the right to remain. It is easier (though not easy) to conceive of the EU allowing an existing entity to remain than to leave and re-enter. Constitutional crisis and cries of ‘save the union’ would resound in Parliament and provide another argument for not ratifying the referendum result.

Those of you that are indignant even at the suggestion of this scenario are naive. The political imperative to remain in the EU is very strong and this is reflected in the present constituents of parliament. It will, given any plausible excuse, defy an unwelcome referendum outcome. Moreover, it may well succeed.