Invoke Article 50? Never say never—but it is becoming less likely by the day

The Leave campaign won the referendum battle—the question is now whether it can win the Brexit war. This is in doubt. Winning the referendum was not enough. The vote was not legally binding. This means that it was nothing more than a glorified consultation exercise. An expensive and politically significant one, but one also of no formal legal consequence.

This lack of legal consequence took many by surprise. David Cameron had said that the result would come into effect “straight away.” But that was back when the government was expecting to win.

If the fault of the “Remain” campaign was its complacency, the fault of the “Leave” campaign (or at least those “Leave” campaigners who wanted to win) was that it thought winning the referendum would be enough. There was little or no planning for what would come next.

And so when the prime minister resigned without making the notification of the UK’s intention to withdraw to the European Council, an unstable political situation was created. It would be for the next prime minister to decide when to send the formal notification. This notification triggers a process with a hard deadline of two years: whether or not an exit deal is agreed. In other words, the UK would be out of the EU in two years or less. Extensions need unanimity and so cannot be counted on.

By detaching the referendum result from its immediate implementation, the prime minister created the possibility that the notification would never be sent at all. This is in part because of the natural tendency in British politics for events and excuses to intervene and slow down constitutional change. And it is in part because few British politicians with any power actually want the UK to leave the EU.

The leave “establishment” certainly had a real fright at the unexpected popular vote but focus is being regained. There is little the “Leave” campaign can do. Their leading politicians are further away from the “red button” than “Remain” politicians, and the government’s intention is to keep it this way.

There is now talk of a further parliamentary vote, perhaps even a new statute, being required before any notification is sent. Views differ between constitutional lawyers on whether this is strictly required in this unprecedented circumstance. But if the government says one is needed then there is nobody who can at law gainsay such a view. And a parliamentary vote in turn makes it less likely that the “Leave” win in the referendum will convert into real Brexit. Members of parliament do like to pose as “representatives not delegates,” and so many will not feel fettered by any referendum vote.

There will also be preconditions before the notification can be sent. These will be like the famous “five economic tests” used by Gordon Brown to delay the UK joining the euro. Candidates to become the next prime minister are already speaking of “no absolute deadlines” and that the time must be right. The UK will need to be “good and ready.” You can expect Euro-type tests to be proposed next.

The thing about expectations and fears is that they can often be augmented. Markets adjust. Risks are factored in. Once urgent matters become background noise. Threats become embedded. Such stand-offs can sometimes last for a long time, especially when there is no political will to resolve them. That may happen over Brexit.

It is up to the UK as to when (and if) any Article 50 notification is sent. There is nothing the EU can do to hurry that notification along. In turn, the EU does not need to negotiate with the UK until the notification is sent. So every day it becomes less likely that the notification will ever be made. This is not to say “never” but it is not a certainty either.