In Brussels, EU diplomats now think a second Brexit referendum will happen – and Britain will stay in the EU

The decision by the European Court of Justice that the UK can simply revoke Article 50 has changed the perspective of the Eurocrats

Kim Sengupta
Tuesday 18 December 2018 15:36 GMT
Jean-Claude Juncker addresses public spat with Theresa May: 'we were not dancing'

The prospect of a fresh referendum over Brexit is now being regarded as a serious consideration for politicians and officials in the European Union as Theresa May faces gridlock over the plan she has negotiated and support grows for a new vote in parliament and among the people.

Brexiteers have complained regularly about supposed European interference in British domestic politics over Brexit. In reality, EU officials and diplomats have been extremely careful about what they say as the bitter arguments, accusations and recriminations have continued over leaving the union.

May’s cabinet – or what’s left of it after numerous resignations – has decided to implement an emergency no-deal Brexit plan with £2bn allocated to ministries and advising businesses to do the same. This is seen, at least partly, as a warning to Brussels of what may happen if there are no further concessions in the terms she has negotiated. But the feeling among diplomats is that a threat of a no-deal hard Brexit will actually coalesce support behind the call for a people’s vote from those deeply concerned by the consequences.

The campaign for a new referendum was not, the officials point out, something suggested by Brussels, but one that originated in this country – and is supported by The Independent. “We have seen how the call for this has grown and we have to take this into account, this is part of our job,” a diplomat from a European embassy pointed out. “It is obviously a matter for the UK whether they have another vote, but we would be failing in our jobs if we did not take this possibility into consideration. Of course we are taking account of the no-deal scenario as well – again, this is part of our job as well.”

Second referendums have taken place in EU countries before, it is pointed out. Three key treaties – Maastricht, Nice and Lisbon – were turned down by voters in Ireland and Denmark and only ratified in a second vote after changes were made. Diplomats acknowledge that these were on specific issues and not something on the magnitude of Brexit. But the precedent is there.

The time factor, however, is of great importance. The European elections are due at the end of May in which the seats of British MEPs have already been redistributed among other member states. However, the consensus among diplomats and officials is that the EU would be prepared to extend the time on Article 50 if a referendum was to take place with continuing membership of the EU one of the options.

Over the two and half years of wrangling over the terms, Brexit has fallen in the pecking order of European concerns behind issues including the eurozone, rising populism, authoritarianism in countries such as Hungary, Donald Trump’s antipathy to the EU and Nato, Russia and eastern Europe, and the coming European elections. The issue of foreign leaders speaking on Brexit surfaced early after Barack Obama, then in office, suggested that the UK would be at the back of the queue for a trade deal if Brexit took place. Brexiters like Boris Johnson accused the US president of interfering but, as one American diplomat observed, “the only mistake Obama perhaps made was not to speak up even sooner in the campaign”.

Statista (Statista)

Trump had been pressing May to go for a hard Brexit. But the US was among the first of the 20 countries that have attempted to block Britain from getting a fast-track deal with the World Trade Organisation (WTO) on leaving the EU.

There has nevertheless been wariness in the EU about making statements which might complicate negotiations. The claims of Brussels attempting to influence opinion in the UK has not come just from hardline Brexiters but also the prime minister.

May accused European officials of meddling in last year’s election after newspaper reports appeared in Germany with details of a discussion between her and Jean-Claude Juncker – these she claimed had been “deliberately timed to affect the result of the general election that will take place on 8 June”. This was just after May had triggered Article 50 and was presenting as someone who would be extremely combative with Brussels, stressing that she would be a “bloody difficult woman”, in the negotiations.

After the prime minister’s position weakened gravely following the election, this mood of caution continued because of a need to avoid even more political upheaval in the UK and the damaging impact that will have on the Brexit talks, say the diplomats. However, the current impasse has led to a view among many EU politicians and officials that signals must be sent that the UK would be welcomed to stay in the family if it so wishes; there is no need to jump off the cliff edge with a no-deal option.

Leo Varadkar, the Irish prime minister, has pointed out: “The option is there to revoke Article 50: while there may not be a majority for anything, or at least any deal, at the moment in the House of Commons, I do believe there is a majority that the UK should not be plunged into a no-deal scenario and it is in their hands at any point in time to take the threat of no deal off the table.”

The message was repeated by Donald Tusk: “We are prepared for a no-deal scenario but, of course, we are best prepared for a no-Brexit scenario. I don’t share [Theresa May’s] enthusiasm about Brexit as such. Since the very beginning we have had no doubt that Brexit is a lose-lose situation and our negotiations are only about damage control.”

The decision by the European Court of Justice that the UK can unilaterally revoke Article 50 has had a more widespread impact than it has, perhaps, been realised in this country.

The UK government had maintained that the legal action by a cross-party group of Scottish MPs, MEPs and MSPs to ensure that politicians in Westminster can halt the process without needing the consent of the other 27 EU member states should be ruled inadmissible. Lord Keen QC, representing the UK, had asked the court not to open “this Pandora’s box” and resist a move which “seeks to coopt this court into the ongoing political campaign of almost unparalleled controversy and sensitivity.”

But the EU too was against opening the “Pandora’s box”. Hubert Legal, representing the European Council, held that allowing unilateral withdrawal could lead to “disaster” of which “the main victim could be the European project altogether”. Article 50, he wanted to stress, was “not ambiguous” and “the prerogative of acting alone will have been exhausted by putting notification letters on the council’s table”.

A senior diplomatic source said: “There was alarm over this in Brussels, of course. Article 50 was meant to be the final decision. Unilateral cancellation means that member states can threaten to trigger it in disputes to get better terms or trigger it and then cancel it. But it has become a very important factor as far as Brexit is concerned.”

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There is acknowledgement that there remains those in the European capitals who feel that the EU will be better off without Britain, allowing France, Germany and other states to drive on ahead to ever closer union. There are also those who feel that what they see as British arrogance and divisiveness must be punished.

But, said a northern European diplomat: “There is a need for reconciliation but the terms have been negotiated, and it is up to the people of the UK to decide what to do now. This uncertainty, this confusion, is making matters very serious.”

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