A C Grayling thinks this Brexit mess has gone far enough

David Davis’s visit to the EU this week has all the elements of farce. He goes without a plan, without a road-map, without an idea, without any prior documentation sent to Brussels other than Mrs May’s letter of March this year, and without a mandate for talks about any form of Brexit.

So what is Davis doing in Brussels? May’s government did not get the authority she asked for to send him there. Why is the EU bothering to talk to him, knowing that he has no authority to speak for the United Kingdom on Brexit? They are acting correctly, but a question arises about the role of the EU itself in protecting the rights of EU citizens – and in this case that means British EU citizens – whose government is acting in unacceptable ways, politically and constitutionally.

For one clear-cut example: exclusion of expatriates from the EU referendum franchise if they had been resident abroad for more than 15 years is contrary to their rights under the ECHR. There is a legal action in process on this. Both May and her predecessor as Conservative Prime Minister had promised to rectify this anomaly. When judgment is made in favour of the expats deprived of their rights, will that void the referendum result?

The mess that the UK is currently in requires at very least two things:

First, it requires that the Article 50 notification should be withdrawn (if indeed it was ever successfully made in the first place. There is legal doubt about this, soon to be investigated, and it would be par for the government course if the notification had not in fact been properly issued). The confused situation and a government perilously on life-support in a hung parliament cannot enact major constitutional changes.

Second, it requires at very least that there should be a second referendum on the question of the UK’s EU membership, given that the first referendum, and the subsequent general election, gave such an indecisive outcome – and given that in the first referendum the Leave campaign was premised on false information, false promises, distortions, and possibly – so it now begins to appear – on illegal funding, all matters now in the public domain. It would be unacceptable, indeed unconscionable, for these matters to remain unchallenged and ignored.

The government is tenuously propped up by a near-deal with the DUP in violation of the terms of the Good Friday peace arrangement. The DUP is a profoundly unappetising political entity, to put matters mildly. It seem that the Conservative government will do anything, get into bed with anybody, risk whatever it takes, to try to force through its unmandated will. The EU is itself a party to the Good Friday Agreement; parlaying with the current UK government puts it at risk of violating the neutrality accord cemented into that agreement.

All the forgoing is, of course, predicated on the supposition that the many pro-EU Remainer MPs in all political parties will do nothing to stop the attempt by May’s rump government to force Brexit through. It is already obvious that Brexit threatens serious harm to the UK economy, and serious harm to the UK social fabric – seven years of cuts and austerity have done great harm to that fabric already, with tragic results in west London, attrition of the NHS, undermining of policing, and a growing and dangerous inequality gap in general.

In assuming – and I both hope and expect to be proved wrong on this – that Remainer MPs will do nothing to ‘stop Brexit’ I do not qualify by saying ‘stop ‘Hard’ Brexit’. The one and only thing May has ever said that has any genuine content is, ‘Brexit is Brexit’. She is right; there is no hard, soft, lite, open, or any other kind of Brexit. Why? Because the idea of a ‘Soft (lite, open, etc) Brexit’ is a nonsense. Access to the benefits of association with EU cannot come without observing EU conditions and requirements across a significant range of issues.

The idea of placing oneself under those conditions, and their future variation and development, without having any say on them, is a particularly stupid one. If one were to have the benefits of association with the EU and concomitant observance of the level playing field requirements and regulations, one should and must be a member of the EU. As we, at this moment, are.

Labour’s relative success in the general election can be attributed to a number of factors, but one of them is that a lot of Remainers voted Labour not because they agree with Labour’s confused official take on the matter, but because they were voting against the Conservatives. Labour’s position on Brexit is a disappointment and a puzzle. In a rather cosmetic and unthought-out manifesto presenting itself as more socialist than any Blairite manifesto would be, where is the internationalism? Why is the typically right-wing hostility to immigration kow-towed to? How can the party not see that those most at risk of being hurt, and hurt badly, by Brexit are those on low incomes in deprived areas of the country? The Labour stance is incoherent.

The general election result has killed the idea of a ‘Hard’ Brexit. For the reasons given above, this therefore means Brexit itself is dead – or all but. The politicians who would like to kill it are simply seeking a way to deliver the death-blow without appearing to be undemocratic. The fact that they cleave to the crudest and least accurate view of what democracy, and our British democracy, actually is, makes one shake one’s head.

Too many in the Westminster bubble fetishise the misleading EU referendum result; not only have they all allowed themselves to be hustled past the ‘advisory’ point and their own duty as a sovereign body to consider whether to take that advice, but they appear to overlook this key fact: it is not the votes cast but the proportion of the electorate that is the key factor in determining whether a mandate exists for major constitutional change. Look at the 1970 Scottish devolution referendum conditions, and reflect. Why were the same conditions not applied in the EU referendum? The inconsistencies and make-it-up-as-you-go-along air of the 2016 referendum and what follows gives one a nasty sense that the words ‘gerrymandering’ and ‘coup’ are too appropriate here.

Why say ‘all but’? Because it is not unimaginable that some sort of fudged spatch-cocked arrangement will be reached in a few years’ time which is dressed up as ‘Brexit’ without being Brexit, but instead is in fact a version of the renegotiated terms of membership that Cameron – in his lazy and inattentive way – was seeking before the 2016 referendum. That in turn will pave the way for complete and full reintergration into the EU, which is an historical inevitability given the way the world is.

But here’s the catch. The arrangement that the UK has for its EU membership currently is a very advantageous one. The opt-outs and exceptions are in the UK’s favour. The EU is developing, and its best minds are working at reform. If there occurs a fudged cosmetic arrangement that politicians can pretend is a Brexit, then in several years’ time when the UK is well over this absurd current spasm and seeks full re-entry, the terms will not be as they are now.

That is why what we need is for someone to take a leading stand in our politics today and say, ‘That’s it: this mess has gone far enough; we are withdrawing the Article 50 notification, and deciding that it is not in the UK’s interests to leave the EU’.

What a blessed relief that would be. And then we could turn to the serious issue exposed by the debacle we are living through: the urgent need for reform of our constitution and of our electoral system; the urgent need to address the lack of transparency surrounding the way big money and partisan interests hijack our democratic order; the urgent need to punish the tabloids for outright lies and manipulations; the urgent need to hold to account such election behaviour as the implied promise of £350 million a week to the NHS – a lying promise soliciting votes, which should be punishable as any fraud is punishable.