A guide to local Brexit-softening actions

I thought it might be useful to distill my bespoke, world un-famous proposed local activist process for softening Brexit, as it has got a bit scattered over blog posts, as opportunities to advance the cause have come and gone.

I start from the unapologetic position that Brexit as it is currently headed is an unmitigated economic and cultural disaster, and that I have a deep moral imperative to help soften it to a full SM/CU/EEA position if I am to look the next generation in the eye.

Such a position is entirely compatible with respecting the mandate of the referendum, which I accept has the force of law. The referendum did not dictate that Hard Brexit should follow, and nor did it dictate that future relationships with the EU should be beyond the jurisdiction of the European Court of Justice, which is a sound court making generally sound legal judgments, albeit in the context of a European Union which took a wrong course towards competitiveness . and away from convergence (see Marcon’s recent Sorbonne speech for an astute analysis of this).

I do not currently think avoiding Brexit is possible, or even advisable, but that position may change as the economy starts to tank even more badly, and the human cost grows even before March 2019. However, I am very clear that the authority provided by the referendum vote of June 2016 no longer applies at the point in March 2019 when Brexit is done.

There are two linked parts to my local-activist-route-to-soft-Brexit, and they are applicable differently to all areas of England & Wales, including one quirky area of London to which I make specific reference below, but not (sadly) to Scotland or Northern Ireland:

1) An application to the Secretary of State for for Communities and Local Government under the Sustainable Communities Act 2007 (substantially revised 2010) (SCA) seeking the devolution of power from the centre to allow the submitting or named local authority to undertake its own negotiations with the European Union, such that e.g. non-UK EU citizen rights are guaranteed immediately for those people living in the area covered and, more ambitiously, that the area becomes recognized as continuing with Single Market/Customs Union status on the basis that it respect the four freedoms, even if the national authority does not (more detail on this below)

A parish council can submit a SCA application in its own name, and this can be a fall back position, but my view is that it is better if it comes from a local authority (or preferably many local authorities submitting a joint bid with support from the mayoralty).

Now, of course the government will turn down and seek to ridicule such an application, but in a way that it is the whole point. The publicity around the application submission is the important aspect, with councils able to show that they are more in tune with shifting public sentiment than central government, and are taking this highly unusual step precisely because they care about the “sustainability” of the communities they serve — any application must provide evidence that this is what it is for, and in this case it is easy to link it to continuity of living standrards post-Brexit etc.

Nevertheless, there is a legal twist to the SCA process which potentially cuts in our favour. As and when an application is refused by the Secretary of State, the Act legally entitles the applicant council (or councils) to make a case to the “selector”, which is currently the Local Government Association (LGA) for higher tier councils (and National Association of Local Councils for parish councils). If the LGA determines that the application is reasonable, then the government is bound by law to “seek to come agreement” with the applicant council, over a one year period. While not wishing to project too far, it is possible to foresee this both creating good publicity but also an opportunity for late legal challenge on the basis that the government of the day cannot simply override its own legislated process even when it has the power to leave the EU under a later Act. That would be an issue for wiser heads than mine, but I can see a prima facie case.

2) A parish poll, called under Schedule 12, Paragraph 18 of the Local Government Act 1972, with a referendum-style question along the lines of, I suggest:

Should xxx borough/city council [being the higher level local authority for the area in which the parish lies] seek the devolution of local power to negotiate with the the European Union over the terms of the areas withdrawal from the European Union?

This possibility is, by a quirk of the original act which might be itself be open to legal challenge, open only to residents who lived in a parish area , of which there is only one in London (Queen’s Park, formed in 2014). However, within that geographical constraint, the process to get to a poll/referendum is remarkably simple (I last used the process in 2005 over keeping housing in public hands, but the law has not changed in this respect).

All that is needed is for six public-spirited electors to provide a public notice of the requirement for a public parish meeting to then debate and vote on whether the public poll should be heard. The notice should as courtesy be signalled to the parish chair and clerk (assuming they are not already on-side) and to the Returning Officer of the higher tier council which will be charged with organizing the poll if the parish meeting agrees to it.

The meeting itself is usually chaired by the usual parish council chair, though should s/he refuse a member of the public or another parish councillor can do so. The meeting does NOT need a majority vote in favour of requiring the higher tier local council to host the vote. It only needs, under the 1972 Act, 10 electors in favour, or a third of those present, whichever is the less.

With this done, the higher tier authority is legally obliged to go through with the poll, with voting stations open from 4–9pm as a minimum and the Returning Officer responsible for running the poll and declaring the poll result, as with an election. The Local Audit and Accountability Act 2014 does make provision for the Secretary of State to impose regulations on this process as a way of stopping it (this was in light of parish council representation about abuse of the 1972 Act) but has never, to the best of my knowledge, done anything on it, and in any event such a move would create as much or more publicity as the poll itself.

Note also that the higher tier council is able to pass the polling day management cost on to the parish council, so while not legally necessary, it is courteous to check what these costs are likely to be with the Returning Officer’s staff, ask whether a passing on is proposed, and formulate a response on this — either an intention to fund raise/part fund raise the costs or simply the argument that the costs incurred by the parish council are worth it.

The poll is only advisory to the higher tier council, and its value is in the publicity. It is not therefore a necessary part of the process, and the SCA application summarised at 1) can be done in isolation by a willing city/borough council. Nevertheless, the process of the local poll has grassroots action inherent to it, and it may even be welcomed as part of the process by a local authority keen on submitting a SCA, because it strengthens its application by showing public support. It is also, self-evidently, a first opportunity to vote on Brexit, and can be marketed as a qusi-second referendum, especially if it is a large parish council (note: parish and town councils have the same legal status and while I have referred to parishes in line with the 1972 Act, a larger town council in Southern England could get involved).

The remaining thing to detail is what the effect might be. Frankly, it is hard though not impossible to conceive of a single area actually achieving single market/customs union status while others around do not, though the common misconception that the problem would be around the movement of people can be rebutted quickly; the single market is based on freedom of movement of workers, not people, and so unless the government were intent on a mind-bogglingly stupid introduction of time limited visas for all EU visitors, thus trashing the tourist trade, then this really is a non-issue.

The greater issue is, in theroy, how a customs union might work in such ‘enclaves’, since — barring the whacky drone-based ‘solution’ mooted by Legatum for the Northern Irish border, it is hard to see how that would operate other than by spot check etc, and this of itself demands compliance from non-CU bits of the UK.

However, this level of technical detail is not so relevant at this stage, since demanding local power to negotiate is really, in the end, about proving that in an ever greater number of local areas the tide is turning/the facade cracking (other metaphors are available) towards a SM/CU/EEA deal with a view to almost instant reapplication, with Labour MPs in particular reassured by the actions of their local councils that the shifting mood (and demographics) is with a near-Remain strategy if and when they come into government.

Finally, there is the issue of how the EU negotiating team, and the European Parliament, might react to such goings-on. This will depend to a great extent on who introduces the concept, and there will need to be clarity about the fact that the process is intended not so much to lead to SM/CU enclaves, which is not desirable overall, but to a break from the national level Hard Brexit course.

Even so, provision may need to be made for such enclaves, especially in respect of the big cities and, for other reasons which nevertheless assist the cause, Northern Ireland. A Customs Union needs a border, but a temporary soft set of borders may be negotiable with the bigger picture in mind.

Such an approach needs to be led by Keir Starmer, with suitably informed MEPs in support.