“Bracksies”: how Brexit could wind up not actually happening

Fun fact: Brexit, the United Kingdom’s narrow vote to exit the European Union, is not actually legally binding.

The prime minister, be it David Cameron (who has resigned but could remain in office until October) or his successor (almost certainly pro-Brexit former London Mayor Boris Johnson) can simply decide to ignore the result. In practice, it’s hard to see that happening; the voters have spoken, and politicians are loath to overturn the express will of the people.

But Cameron still hasn’t done the one thing he needs to do to ensure that the UK actually exits: invoke Article 50 of the Treaty on European Union. And until he does, there are still ways he could keep Brexit from happening.

What is Article 50?

Here is the meat of Article 50, which establishes the procedures for a member state to withdraw from the EU:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

No country has ever invoked Article 50 before, so it’s still a little unclear how the whole process will work. But it appears that the order of operations is as follows:

1. The prime minister informs the European Council — the EU body comprising the heads of state/government of its member nations (Angela Merkel, François Hollande, etc.) — that the UK intends to leave.
2. The Council would then meet amongst itself and agree on a framework for the United Kingdom’s withdrawal.
3. Using that framework, the European Commission (the appointed executive branch of the EU, led by former Luxembourgish Prime Minister Jean-Claude Juncker) negotiates the precise technical terms of exit with the UK.
4. Once the deal is reached, it enters into force if the Council and the European Parliament both agree.

This whole process is supposed to take no longer than two years; after that period of time, if no deal has been reached, the UK automatically exits the European Union without any special deal letting it retain trade preferences or other benefits. However, the Council and UK can unanimously decide to extend that two-year period if they like.

Does this mean Brexit could just, like, not happen?

Absolutely — as long as Article 50 isn’t invoked. "Once Article 50 is invoked, the process is irreversible," Slate's Joshua Keating notes. "The UK can't back out."

But there’s no requirement that the UK invoke Article 50 in a timely fashion. Indeed, both Cameron and Johnson have said they think it’s appropriate to dawdle; Cameron says he’ll leave the decision to invoke to his successor, and Johnson has said there’s no rush.

It wouldn’t be tenable for the government to just completely ignore the vote forever, even though that is legally permissible. That said, there are some more plausible, clever ways that the government could get around actually exiting.

Scenario 1: Let Scotland save you. Under the Scotland Act 1998, it appears that the Scottish Parliament has to consent to measures that eliminate EU law's application in Scotland. At least that was the conclusion of a report on Brexit released by the House of Lords, the upper house of Britain’s Parliament:

Jo Murkens, an associate professor of law at the London School of Economics I spoke with about this, told me that this isn’t actually an iron-clad veto. The Scotland Act was passed by the UK Parliament, and Parliament can amend it on its own to reduce the Scottish Parliament’s powers.

To exit the EU and avoid a binding Scottish veto, "Parliament would have to repeal the European Communities Act 1972 (by which it became a member) and would also have to amend the devolution legislation pertaining to Scotland, Wales, and Northern Ireland," Murkens said. "That strikes me as technically easy, but politically difficult."

If the Conservative Party is insistent on Brexiting and is willing to overturn decades of law giving Northern Ireland and Scotland (both of which voted overwhelmingly to stay in the EU) local control over their affairs, then it can totally do so.

But, as Murkens also noted, such a dramatic action could risk a huge backlash. Scotland is already planning to hold another independence referendum, and seeing devolution curtailed would make its success much more likely. Northern Irish republicans would be emboldened to call for unification with the Republic of Ireland, which could occur, or they could just reignite the Troubles after decades of peace.

If the overriding objective of Conservatives, however, is to "preserve the integrity of the United Kingdom as a state," Murkens said, "the objective of keeping NI and Scotland in the United Kingdom would turn them into veto players … Scotland and NI have voted to remain and the cost of not listening to them would be to split the UK."

So here’s what Cameron or Johnson could do, in three steps:

1. Announce they are respecting the terms of devolution and allowing the Scottish, Northern Irish, and Welsh parliaments to vote before invoking Article 50.
2. Wait for one of them to vote against leaving. The Scottish and Northern Irish parliaments would be under a lot of pressure to do so, due to their constituents’ views. The Scottish National Party, which has the biggest bloc in Scottish Parliament, could want Brexit to go forward to build support for Scottish independence, but it would be hard for them to vote that cynically. The Northern Irish Assembly’s biggest party, the Democratic Unionist Party, was pro-Brexit, but it could understandably flip if it fears that actually leaving the EU could lead to Northern Ireland leaving the UK. The Welsh Assembly is led by the Labour Party; Wales voted to Leave, but Labour could vote its own position and shoot down exiting.
3. Once one or more of the subnational legislatures votes to reject Brexit, the prime minister announces he’s not invoking Article 50 after all, using the regional veto to save face.

Again, Cameron or Johnson doesn’t have to do any of this. But it’s a plausible way to avoid leaving.

Scenario 2: Dawdle on invoking Article 50 by having another referendum. This would be a bit odd so soon after the first one, but there’s nothing preventing the government from calling a do-over, and there might be political willpower for it.

For one thing, there have been anecdotal reports from numerous Brexit supporters saying they didn’t realize their votes would actually count, and that they regret voting to "Leave" now that the results are in. Searches like "what does it mean to leave the EU?" and "what is the EU?" surged after the referendum. And more than 2 million have signed a petition calling for a second referendum.

It would require a monumental act of political courage for Cameron, or especially Johnson, to call for this — not least because Cameron ruled out a do-over before the referendum was held. But Cameron’s political career is over anyway, and could reverse himself for the good of the country.

Scenario 3: Dawdle on invoking Article 50 and have an actual general election. "There's a reasonable case to be made that this should go to an election given that the prime minister resigned," Adam Posen, president of the Peterson Institute for International Economics and a former member of the Bank of England's Monetary Policy Committee, told me in an interview. Then, if either the Labour Party (which strongly opposes Brexit) or a split-off faction of the Conservatives that opposes Brexit were to win the election, they could claim that as a mandate to cancel the results of the referendum.

The problem here is that there’s little reason for the Conservatives to want another election, especially since they have yet to actually split. If they don’t split, their leader will probably be Johnson, who supports Brexit and whose election would not exactly be a mandate to overturn the referendum result. Unless they call an election, the Conservatives are safely in power until 2020, and calling an election to get Brexit overturned would not just risk a Labour victory, it would probably only work if Labour won.

"There's a very good incentive for the current Tory [Conservative Party] government to not call an election they'll lose, or which would make them have to share power with the UK Independence Party or the Scots," Posen noted.

But each of these three scenarios requires the current Tory government to do something drastic. Without Cameron or his successor’s buy-in, no effort to stop Brexit can succeed.