Friday, 7 December 2018

Brexit – Where on earth do we go now?

I make no apology for returning to the subject of Brexit in a second successive blog post. At the moment “it’s the only show in town”, and the planning topics that are in my pending tray for future discussion are rather technical and, to me at least, somewhat tedious.

After three days of debate in the Commons, parliament is now taking a breather and has three days off over this weekend to take stock, and to try to work out what will happen when the Brexit debate is due to resume on Monday and Tuesday.

The full court of the ECJ (aka the CJEU) is due on Monday to deliver its judgment on the case referred by the Scottish courts as to whether the UK is legally able unilaterally to withdraw the Article 50 letter which formally initiated the current Brexit process, and so bring it to an end (at least for the time being). The Advocate General’s opinion is that we can, and whilst the Court is not bound to follow that opinion, there is a reasonable prospect that they will do so.

The importance of this decision (if the Court does share the view of the Advocate General) is that this will provide a clear alternative to ‘crashing out’ of the EU with no deal, if Theresa May’s flawed withdrawal agreement is thrown out by the Commons on Tuesday.

That said, it is clear from the speeches in the Commons over the past few days that, whilst there is a substantial majority of MPs in favour of avoiding a ‘no deal’ Brexit, there is no consensus as to what alternative course should be pursued. There remains, therefore, a distinct danger that the UK could crash out of the EU on 29 March simply by default.

Having thought about this over the past few days, I had reached the conclusion that the only safe course of action would be for the government (of whatever complexion, and whoever is Prime Minister) to withdraw the Article 50 letter in good time before 29 March, so as to give the country sufficient breathing space to review the whole issue of Brexit and all its ramifications, and to decide, without being under the pressure of a deadline, whether (and, if so, how) to proceed with Brexit.

I feared that I would be in a minority of one in putting this idea forward, but I was heartened yesterday to learn that the Mayor of London has reached precisely the same conclusion, and for the same reasons. The object of doing this would simply be to “stop the clock” and allow enough time to seek a resolution of what has turned into a major governmental and political crisis.

No doubt this will be met with shrieks of “Betrayal!” from the loony right of the Tory Party and from a ragbag of the other usual suspects (such as Nigel Farage and the Daily Excess), but what is being suggested is not a final end to Brexit, but simply a pause long enough for mature reflection on the way forward, which would otherwise be a practical impossibility in the present febrile atmosphere with the deadline of 29 March looming.

A General Election or a Referendum (maybe both) may be necessary in order finally to resolve the issue of Brexit, but these processes and procedures will require time, which we do not currently have with the fixed deadline of 29 March rapidly approaching. Simply extending the Article 50 deadline by two or three months, assuming this could be agreed with the EU, (and amending the ill-advised provision which enshrined that date in UK legislation) would not be enough to ensure that we could sort things out freed from the sort of time constraint which would inevitably skew decision-making.

I appreciate that only the government could take the step of withdrawing the Article 50 letter, and that Theresa May absolutely refuses (at least at present) to do anything other than steer the Titanic at full steam ahead straight at the iceberg, with the object of ramming it head-on. However, doubt and dissent about the course she is pursuing is no longer confined to the Tory back benches; it seems to have spread to most of her cabinet. Even members of her team inside No.10 seem now to be among the doubters. By one means or another, May must be stopped from pursuing her present suicidal course. This could take any one or a combination of steps – a cabinet revolt, a ‘no confidence’ motion among Tory MPs, and a large and decisive Commons vote not only against the ‘deal’ currently on offer but also against a ‘no deal’ Brexit.

We can only live in hope that we shall be delivered from the utter catastrophe that a ‘No Deal’ Brexit would cause. I believe that the course I have suggested above is the safest way of achieving that, whilst keeping future options open.

UPDATE (11 December 2018): I was interested to note today that Sir John Major has also joined those who are calling for the UK's Article 50 notice to be revoked. As I have explained, and as both the Mayor of London and Sir John have also observed, this is now essential in view of the very real risk of our running out of time, and 'crashing out' of the EU with no deal, purely by default. The problem has been greatly exacerbated by the crass decision of the PM to pull today's 'meaningful vote' and to jet off round Europe in a time-wasting and hopeless bid to save her political skin. It seems that the government has no intention of rescheduling the vote on the withdrawal agreement until mid-January (if then), which will leave the revocation of her Article 50 letter as the only practical alternative to a car-crash Brexit. This would not, of course, prevent a fresh Article 50 letter being sent in the future to re-start the Brexit process, if that is then the will of parliament (backed, if they think it necessary, by a confirmatory referendum).

UPDATE (18 December 2018): To coin a phrase, “Nothing has changed. Nothing-Has-Changed!” since my previous update. We are exactly where we were when I last wrote on this issue. Meanwhile, I have taken the opportunity to re-read the ECJ’s judgment of 10 December. Contrary to a statement made recently by ministers, there is nothing to prevent the UK’s withdrawing its Article 50 notice, but then (at any time) submitting a fresh Article 50 letter, if the country subsequently decides that it wishes to resume the Brexit process. The objection to this course of action to which ministers referred was voiced by the European Commission in their submissions to the ECJ but was firmly rejected by the Court. Withdrawal of the UK’s Article 50 notification, thus bringing the current Brexit process to an end, would not prevent the country from reviving its intention to leave the EU, if (after further consideration) it were to decide to do so. Convinced Brexiteers need not therefore have any anxiety that withdrawal from the Article 50 process within the next three months would represent a final and irretrievable end to Brexit; it would not prevent or inhibit in any way a subsequent resumption of the Brexit process. It would, on the other hand, remove the threat of a ‘no-deal’ Brexit on 29 March and the catastrophic economic and logistical crisis that would ensue from such a ‘car-crash’ Brexit.

For a considered and objective review of the whole Brexit process, I would strongly recommend readers to listen to (or read the transcript of) a lecture given by Sir Ivan Rogers last week. It can be found here :



  1. I worry that this move just muddies the waters. I preferred the dichotomy of 'rubbish deal' vs 'stay in'.

  2. Good morning Martin.
    Just a small point: I suspect your metaphor of the Titanic may do the Remain cause no favours.
    Naval engineers are of the opinion that had the vessel hit the iceberg head-on, it would have survived. Instead, the captain (May?) tried to manouver the ship away from the ‘berg, but in doing so rammed it sideways-on, thus popping hundreds of rivets and opening up seams in the plating of the hull.
    I firmly believe the deal May has negotiated would sink our ship of state, insofar as sovereignty is concerned; she has simply ended up re-negotiating our terms of membership, but on worse terms. If a second referendum was held, with a binary choice between Mays’ deal or Remain, I’m sure many of us Leavers would logically have to vote Remain as the least-worst option.
    We live in interesting times.

  3. Although I would prefer to get your insight into planning - you are spot on! Well said!

  4. Thanks to Ian, A.Gilbert and Passer-by for taking the trouble to comment.

    Hopefully, once we are through next week, we can get back to planning law instead of obsessing about Brexit. I do have a few items in the pipeline, and I promise I'll write them up shortly.

    Regarding the 'Titanic' metaphor, I suspect A. Gilbert may be right about the original disaster. But I don't think that Captain May will save her ship by adopting this tactic, even if the captain of the Titanic might have done.

    I take Passer-by's point, and if/when we get to a referendum, I think the binary choice should be between May's deal or Remain. However, there won't be time to pass the necessary legislation and to organise a referendum before we run out of road on 29 March. This is the sole reason for my now suggesting that May's Article 50 letter should be withdrawn. I put this suggestion forward, rather than an temporary extension of time, because that could only be done by consent of the EU, and would still leave us under pressure of time, whereas (subject to the judgment of the ECJ on Monday) we could withdraw the Article 50 letter unilaterally.

    Incidentally, I am just as critical of Jeremy Corbyn and the Labour leadership as I am of Theresa May. Corbyn's assertion that, upon taking power, he would set about negotiating a better 'job-friendly' Brexit is just as delusional as the leavers who demand that May should go back to Brussels and demand a deal without an Irish back-stop. Sooner or later, Labour will have to accept that the only options are to go ahead on the terms that the May government negotiated or to stop Brexit altogether, and this makes a referendum inevitable.

    It is very unfortunate that, by sitting on the fence for the past two and a half years, Labour has wasted precious time when they should have taken a far more robust anti-Brexit position and could then have run rings around this hapless Tory government.