Archive for the 'Article 50' Category


What’s missing this Christmas is any sign of peace and goodwill between LEAVE and REMAIN

Tuesday, December 20th, 2016


Alastair Meeks on “The Remains of the Day”

It’s coming up to six months since the referendum and there doesn’t seem to be much sign of peace or goodwill in the Christmas period between Remain and Leave.  Remain-supporting newspaper op-ed writers vituperate the behaviour of Leavers.   Leave-supporting newspaper op-ed writers screech at the perfidy of Remainers.  On Twitter, the Brexit debate has become egg-bound.

Nor is this confined to the empty vessels making the most noise.  Opinion polls consistently show that the public remains as split about the correctness of the original decision to Leave as it was six months ago.  YouGov recently released a survey in which they asked supporters of each campaign to detail the main reasons why people voted for the other side.  The results were unedifying.

43% of Leavers thought voters chose Remain because of fear and uncertainty – as much as every other reason cited put together.   A further 9% cited stupidity or ignorance or Remainers being misinformed.  Remainers were still less complimentary about Leavers.  43% thought that immigration was the main reason for a Leave vote.  A further 36% thought that one of racism or xenophobia, Leavers being misinformed, stupidity or ignorance or lack of knowledge was the main reason.

It seems that Leavers think that Remainers are cowardly cretins and Remainers think that Leavers are bigoted cretins.  A political chasm has opened up.

So how is Britain going bridge that chasm?  What will post-Brexit reconstruction look like?  Both sides need to think carefully about the terms on which they are prepared to coexist.  This is a challenge for both the referendum victors and the vanquished.  For now, let’s stick with the losers.

Leavers are exhorting Remainers to move on.  What Leavers really seem to mean by this is that Remainers should recant their views, but the surface suggestion is a fair one. What does moving on mean?

Remainers first have to accept the fact of the vote.  Britain voted to leave the EU and you can deplore that all you like but that’s democracy.  In any case, Humpty can’t be put back together again.  The Article 50 notice has yet to be served but Britain is leaving the EU.  Even if Britain tried to perform a volte face, the EU should not want to stay tied to such a flaky, demanding partner.

The vote needs to be honoured in spirit as well as the letter.  From that YouGov poll, Remainers clearly accept that the vote was won through Leave campaigning on immigration.  The ability to place restrictions on freedom of movement from the EU is therefore a democratic necessity, no matter how disgusting you might find the basis on which that was achieved.

Next Leavers tell Remainers that they should work with them to make the best of it.  This is where it gets difficult.  If you think that a decision was an appalling mistake but must be respected, what’s “the best of it”?

Just because something is difficult, however, does not mean that it should not be attempted.  Too many Remainers have self-indulgently evaded responsibility, defining themselves not by reference to a positive vision but negatively in opposition to all that they despise in Leavers.  The referendum vote was lost in large part because the establishment had taken for granted that the benefits of the liberal consensus of the last generation were obvious.  For the last six months it has continued to do so.  By doing this, the field has been left clear for the battiest Leavers to put forward the most autarkic, introverted and soft-boiled visions of post-Brexit Britain.

There is no requirement to work with Leavers on this, whatever Leavers might say, unless those Leavers are themselves demonstrably prepared to move on.  Out of the ashes, Remainers can argue for a Britain that may well be far inferior to the Britain that would have remained in the EU but that could at least be better than the ravings that Leavers have in store for the country. By honouring the form of Brexit, Remainers can continue to argue for constructive engagement with EU countries, the pooling of sovereignty and a recognition that most immigration is good for the country, holding the government to account.  If, of course, that is what they still believe in.  So what do Remainers now believe?

Alastair Meeks



POLL ALERT: Polling Matters / Opinium: Voters back ‘soft Brexit’ but reject second referendum – even if the economy worsens

Saturday, December 17th, 2016


The first poll commissioned by the ‘Polling Matters’ podcast, conducted by Opinium, shows little appetite for another referendum but we shouldn’t assume voters want a ‘hard Brexit’ either writes Keiran Pedley

Since the EU referendum result was announced last June, many have sought to explain on behalf of voters why they voted the way they did and therefore surmise what they want from any Brexit deal. To try and understand what is really going on we have commissioned our first poll with pollsters Opinium (and we are delighted to be working with them on this project).

What type of Brexit do voters want?

The poll focused on two subject areas. The first was to explore attitudes to a potential ‘hard’ or ‘soft Brexit’. We put two potential scenarios to respondents and asked them to choose between them. We deliberately did not use the terms ‘hard’ and ‘soft Brexit’ in the survey to try and avoid any bias that may result in using them. Respondents just saw the descriptions below. The results suggest a ‘soft Brexit’ is preferred overall by 6 percentage points with the public divided (as we might expect) by how they voted in the referendum.

Table 1: ‘Hard’ versus ‘Soft Brexit’

  1. You may have heard different descriptions of what sort of deal the UK might receive when it leaves the EU. Assuming that Britain does leave the EU and these were the options available, which scenario would you prefer?


Before we go further we should acknowledge that this is a difficult exercise to undertake in a survey environment. We are not suggesting that Britain’s choice – insofar as it has one – is as binary as described above. Indeed, many Brexiteers will dispute the idea that there is an economic trade-off with a ‘hard Brexit’ at all. However, we still feel that this is a useful exercise. In presenting the choice as we have above we can start to understand what voter’s value most in any Brexit deal and therefore the prism through which they will see what is eventually agreed.

So what to make of these results? The obvious conclusion to draw is that the debate over Britain’s exact future relationship with the EU is not yet settled. One in four polled either offer ‘no preference’ or ‘don’t know’ whether they would prefer a ‘hard’ or ‘soft Brexit’ whilst 15% of Leave voters actually prefer a ‘soft Brexit’.

There is more than enough ammunition here to challenge those that claim it is obvious what Leave voters wanted from Brexit and therefore also challenge the nature of the mandate Theresa May has when negotiating Britain’s withdrawal from the EU. Also, irrespective of how people voted last June, at the very least the Prime Minister would be wise to keep in mind that a large body of public opinion prioritises Britain’s economic future (and the future of Britain’s public services) over immigration or Britain’s withdrawal from certain EU institutions.

However, those that want Britain to maintain as close a relationship as possible with Europe shouldn’t get too excited. Delving into the numbers further complicates matters in that Theresa May’s base is largely in favour of a ‘hard Brexit’. Conservatives prefer a ‘hard Brexit’ by 13 points and those aged 65+ prefer one by 19 points. In contrast a ‘soft Brexit’ is preferred by Lib Dem voters (72%), Labour voters (58%), Scots (56%) and those aged 18-34 (52%).

Should there be a second referendum on Britain’s EU membership?

The second subject area our poll focused on was the concept of a second referendum on Britain’s membership of the EU. We asked respondents whether they thought there should be a second referendum on Britain’s membership of the EU once the terms of withdrawal were known and also whether there should be one in the event that the British economy significantly worsens as a direct result of Brexit. The results will make sobering reading for Remainers. Surprisingly, a second referendum is roundly rejected in both circumstances. In fact, the results are identical.

Table 2: Attitudes to a second referendum

  1. Once we know what terms the government has negotiated, should there be a second referendum on Britain’s membership of the EU, where voters can choose between leaving under the terms negotiated or remaining in the EU after all? 
  1. If the British economy is shown to get significantly worse as a result of Britain leaving the EU do you think there should be a second referendum on Britain’s membership of the EU?


In any case, right now public opinion is squarely against revisiting Britain’s membership of the EU in a referendum. Of course this could change in the future. If the economy does get worse then the reality of that could change minds.I must confess I was shocked by these results. Not so much the first as I expected a second referendum to be rejected there. Other polls have given similar numbers.

However, I did not expect such a strong rejection of a second referendum in the event that the economy significantly worsens. The scale of the rejection occurs because a significant proportion of the Remain vote (27% and 26% respectively) rejects a second referendum in each instance. Perhaps this is because these people simply consider the matter resolved by the first referendum in June or perhaps they were never that committed to Britain’s EU membership in the first place. We cannot say for certain. The idea of the Remain vote being soft in parts is rarely discussed but seems in evidence here.

Nevertheless, for now the message from the public seems to be that all sides should focus on the type of exit Britain should secure from the EU rather than whether Britain should exit at all. Theresa May’s challenge therefore will be to deliver an exit that satisfies the Brexiteers in her party without being seen to deliver significant harm to Britain’s economy and public services. Whether she can deliver will ultimately determine her legacy and how long she occupies Number 10. Time will tell.

Keiran Pedley

Keiran Pedley is editor and presenter of the Polling Matters podcast and tweets about politics and public opinion at @keiranpedley.

You can listen to the latest Polling Matters ‘Review of 2016’ podcast episode below.

For more information on the above poll (and data tables) contact Keiran at or consult the Opinium website. Opinium interviewed a nationally representative sample of 2,000 UK adults between Dec 13-16, 2016.


Article 50 can’t be invoked, surely, without the country knowing whether its revocable or not

Wednesday, December 14th, 2016

Latest Betfair Article 50 betting


Betting on the delay at 2/1 might be a good bet

The Laura Kuenssberg Tweet reporting that Brexit Sec, David Davis, saying that the government doesn’t know if Article 50 process can be stopped once it starts highlights an issue that’s been around for some time and featured a lot in the Supreme Court case – whether once the move has been made its ‘revocable’ or not.

This is such a massive step that the country needs to know one way or the other before pulling the trigger. It strikes me that if it is not revocable then it very much weakens the government’s negotiating position with Brussels and it would be politically foolhardy for Mrs May to institute such a move without knowing.

The problem, of course, is that to get clarity the matter would have to be referred to the European Court of Justice which could delay things considerably and would certainly make it much harder for TMay to achieve her deadline of March 31st 2017.

Trying to clarify this question is a key part of the crowd-funded court case that is being brought in Dublin by the London QC, Jolyon Maugham.

Mike Smithson


Never gonna give EU up. The latest Brexit legal challenge, this time to keep Le Royaume-Uni within the single market

Sunday, December 11th, 2016


Picture: Protester outisde the Supreme Court whilst the Article 50 appeal was being heard

We’ve known each other for so long but it’s time to say goodbye to UK membership of the single market.

Overnight it was reported

Theresa May is facing a fresh legal challenge to her Brexit plans as campaigners prepare to petition the High Court for Britain to stay in the single market. 

The claimants, including one Remain and one Leave voter, are seeking a judicial review into Ms May’s apparent decision to opt for a hard Brexit – meaning foregoing access to the single market in exchange for withdrawing Britain from freedom of movement for European workers.

Such a review could theoretically give MPs the power of veto over the terms of the UK’s exit.

Peter Wilding, chairman of the pro-Europe pressure group British Influence who is credited with coining the word Brexit, and Adrian Yalland, a Conservative lobbyist who voted to leave, launched the High Court bid to ensure the country got a “win-win, smart Brexit; not a lose-lose ideological hard Brexit which will damage the UK”.

They told The Sunday Timesthere was no mandate for leaving the single market and were concerned the country would be acting illegally if it did not get a proper mandate. 

Mr Yalland, whose partner is Polish, said: “The Government thinks we leave the single market‘automatically’ when we leave the EU. I think they could be wrong. 

“So my judicial review will ask the court to decide who is correct.

“Why does this matter? Well, because membership of the single market is the ‘ace’ card which the EU obviously wants in its hand during the Brexit negotiations. 

“But if the UK can trigger Brexit and not be forced out of the single market then the ‘ace’ card is actually in the UK’s hands, which significantly enhances the UK’s Brexit negotiating position.”

He said if the courts rule the Government is wrong about single market membership, they must also trigger Article 127 of the Lisbon Treaty which regulates it. 

If they do so, he argues, they may need to get the permission of Parliament as membership was originally ratified there in 1993.

Speaking as someone who campaigned for Remain I don’t think these  plethora of cases isn’t helping the cause even if one of the claimants voted Leave. A full commitment’s what I’m thinking of when it comes to the single market because I’m a supporter of free trade and consider the single market as one of Mrs Thatcher’s finest legacies, it was clear during the referendum campaign that both sides said Leaving meant leaving the single market and the customs union, as a democrat, the wishes of electorate must be respected and enacted.

The only positive I can draw from these cases is that it helps enrich the legal profession.



After the advocacy, what next for the Article 50 case in the Supreme Court?

Friday, December 9th, 2016


Picture credit: Twitter

Alastair Meeks: current odds on the Government winning are value

2016 has had many twists and turns, but from a lawyer’s viewpoint one of the treats has been the unfolding of the Article 50 case.  We have been given the opportunity to observe perhaps the most important case in constitutional law for nearly 200 years.

Let’s set to one side the disgraceful behaviour of the press and some extremist politicians in seeking to bludgeon the judiciary into submission regardless of what the law itself might require.  The case itself has so far been a fantastic advertisement for British justice.  We have seen the law move speedily – Jarndyce v Jarndyce is an out-of-date cliché that is going to be a lot easier to shrug off now.  It has captured the public’s imagination because of its potential impact on Brexit.  The Supreme Court has made full transcripts of its hearings available at the end of each session and anyone who wished to could follow its proceedings live, watching some of the cleverest people in the country tussle with legal precedent and practical principle, with the parties’ written arguments made freely available also.

The advocates had their arguments tossed and gored in public, with proceedings being live-tweeted by professional journalists and legal enthusiasts.  Judgment is now expected some time in January.

Off the back of this and after some feline testing by some of the Supreme Court judges of the Government’s position, the betting public has concluded that it is pretty likely that the first instance judgment will be upheld by the Supreme Court.  At the time of writing, “overrule” was last matched on Betfair at 5 (4/1 in fractional odds).  Is this right?

Before the case was heard at first instance, I ventured the opinion that the applicants’ case stood a good chance.  At the time, I was going out on a limb because the weight of the legal academic argument was very much tilting the other way.  This now seems to be completely forgotten about.  Yet the legal academic argument on the Government’s side is still all there and was made in great detail and with great skill for the Government by James Eadie QC.  This is not one of those cases where all the arguments point one way.

So what happens next?  There’s a latent assumption by many that at the end of the advocacy, the judges’ thinking stops.  This simply isn’t true.  It’s not true of the most routine case in front of one judge (I’ve seen a judge have further thoughts after he had issued a draft judgment) and it especially won’t be true of perhaps the most important constitutional judgment for nearly 200 years that’s been heard by 11 judges.

In fact, Lord Neuberger, President of the Supreme Court, gave a speech as recently as three weeks ago when he explained the process:

“40. A rather different aspect of Supreme Court judgments is how they come to be written. I have been keen to encourage a more collegiate, even a collaborative, approach towards judgment-writing. Although the trend is somewhat variable, there has been a greater tendency towards decisions with single judgments, and a definite increase in the number of jointly authored judgments…

41. So far as mechanics are concerned, following the sending round of draft judgments, we often have email discussions and we not infrequently have meetings, sometimes to see whether we can agree on a single judgment, sometimes to reduce or eliminate differences, and sometimes for competing views to be discussed. These discussions often, but I must admit not always, result in some re-drafting and a greater measure of agreement than existed before.

42. I hope – and believe – that these practices not only help foster good relations, a good sense of collegiality, between the Justices, but also serve to produce judgments which are of a better quality than if we did not adopt them. These practices do however have two disadvantages. First, greater collaboration means that Justices have to give more time to each decision than they otherwise would have to give. In one or two cases, Justices have found themselves writing the eleventh version of a judgment in order to deal with different colleagues’ different concerns – or even the same colleague’s changing concerns. Secondly, for the same reason, it means that litigants may have to wait a bit longer for their judgments.”

Only Supreme Court judges themselves will know exactly how this works but it seems pretty clear from this detailed account that there can be a lot of additional debate.  The words of their judgments will be studied for generations to come. They will want to make sure they impress.  With eleven judges deliberating on a hugely controversial case, the advocacy in this case will be likely to prove only a springboard for the discussion to come.

So I have to say that I find the prices in this market quite absurd.  While I stick by my original view that the applicants’ case has much to commend it, this is a long way from a done deal and even taking the bleakest view I can of the Government’s case I can’t see it as worse than a 2/1 shot.  At 4/1 or thereabouts on Betfair, it’s clearly worth backing.  Do so.

Alastair Meeks



Day 3 of the Supreme Court hearing opens with the Government’s Betfair chances down to lowest level yet

Wednesday, December 7th, 2016


You can watch live here.

In the Commons today there is the debate on the Labour motion on the triggering of Article 50 and its neat amendment by the Government to accept the principle but links in a statement on the referendum outcome itself.

Whether TMay is able to set the process of extraction going by her self-imposed end March deadline isn’t clear. Her problem remains that a sizeable group of her own backbenchers are against her and that she does not have a Commons majority for doing it her way.

Mike Smithson


The Article 50 Supreme Court case betting moves a notch to the government on the first morning – but still behind

Monday, December 5th, 2016


Whether you can read anything into this I doubt

If you’ve got lots of time on your hands you can watch the case live here.

The best comment so far is “OJ Simpson it ain’t”. This is all dry legal argument and will go on like this for most of the week. The verdict’s not expected until the new year.

Mike Smithson


As the A50 Supreme Court hearing starts YouGov finds just 46% having a favourable view of senior judges

Monday, December 5th, 2016


LEAVE voters give them a net negative

Yesterday Ipsos-MORI released its latest trust index and found that 81% saying that judges tell the truth. The fieldwork took place nearly a month ago.

In new YouGov polling asking about favourability a very different picture emerges as the chart above shows. This is based on fieldwork carried out in the middle of last week in the days before today’s start of the historic Article 50 Supreme Court hearing.

The split between the views of REMAIN and LEAVE voters is very striking highlighting the huge divide that had has existed since LEAVE won 51.89% of the votes on June 23rd.

I wonder what the next round of polling on judges favourability is going to look like.

Mike Smithson