Wednesday, 16 January 2019

Brexit – the endgame [?]

Readers will not be surprised that I am returning today to the subject of Brexit. There is currently no subject that is more important than this. It requires our urgent attention.

As the dust settles following the catastrophic scale of the defeat inflicted on the government on Tuesday evening (the largest suffered by any government in parliament’s history), and the somewhat irrelevant distraction of today’s No Confidence motion, we need to reflect calmly on the situation. Unfortunately, it was clear from Theresa May’s statement to the Commons immediately following the vote on Tuesday (when she said that the government had ‘heard’ the House of Commons’ view) that she intends to take no notice of that opinion, but will press on instead with her mission to force her deal through. She offered talks with other parties, but the implication was that any such talks would be solely directed to gaining acceptance of that deal, or something very close to it. It is clear that she would not be prepared to consider any other options. Her attitude is, frankly, defiant. This does not bode well for the resolution of the current impasse.

There seems to be widespread misunderstanding in parliament (and even on the part of some cabinet ministers including, apparently, the Prime Minister) as to the position of the European Commission in relation to the draft withdrawal agreement that has been negotiated between the EU and the UK government. It has been clear for some time that there is no scope for re-negotiation of that draft agreement, and very little scope for ‘re-assurances’ or ‘clarifications’ of the agreement (particularly as regards the Irish backstop), and this was repeated from various European sources within the past 24 hours. The letters that were sent to the PM from Brussels a short time ago could not give any guarantees, still less any ‘legally binding’ assurances on this or any other issue. Furthermore, it has become clear that the European Commission has now concluded, in view of the size of the government’s defeat on the draft agreement (by 230 votes), that there is really no scope for any adjustment of the draft agreement that would stand any realistic chance of being accepted by the House of Commons, and so they see little point in entering into further discussions.

It is therefore entirely unrealistic for anyone, whether it be Theresa May, ardent Tory Brexiteers, or even the current leadership of the Labour Party, to talk in terms of seeking to re-negotiate the withdrawal agreement. What the Brexiteers in particular do not appear to have understood is that the stated position of the European Commission is not a bluff, nor is it a negotiating ploy; it is a settled position based on the fundamental principles on which the European Union is founded. There will be no ‘last-minute’ concessions or climb-down. It would be futile for British negotiators to go to Brussels and ‘thump the table’ to demand a better deal, as some Brextremists suggest we should. It is equally unrealistic to talk in terms of other alternatives to the current draft agreement (such as so-called ‘Canada-Plus’, ‘Norway-for-Now’ or any other fantasy deals that they might like to dream up).

With barely 10 weeks to go to the 29 March deadline, which is imposed both by Article 50 of the Lisbon Treaty and by section 20 of European Union (Withdrawal) Act 2018, we are rapidly running out of time to resolve matters, irrespective of the course that either the government or parliament chooses to take with regard to Brexit. Postponement of the exit date is now therefore unavoidable, even if the government were to opt for a ‘No Deal’ Brexit. But that poses a problem. Postponement (as distinct from revoking the UK’s Article 50 notice, so as to halt Brexit, which could be done unilaterally by the UK) would require the agreement of the 27 other EU member nations, and if the UK government were to seek such a postponement, perhaps for three months, the EU would be bound to ask – “For what purpose?”. If this postponement was simply to enable us to go on arguing among ourselves as to what sort of Brexit we really want, or to try to re-negotiate the previous draft of the withdrawal agreement, such a postponement is likely to be refused by the EU. In any event, even if consent to a short postponement were to be forthcoming, it is extremely unlikely that we would be any nearer resolving matters by the end of June, and that we would simply find ourselves in exactly the same position by that time as we are in now.

The time has come to be brutally realistic about the practical options that now face the country. Theresa May’s deal is irretrievably dead. (One is inevitably reminded of the Dead Parrot sketch, with Theresa May playing the part of the shopkeeper.) As explained above, alternative deals are equally unachievable. In the 10 weeks before 29 March there are only two stark alternatives left – a ‘No Deal’ car crash Brexit, or No Brexit (at least for the time being). Majority opinion in the House of Commons seems to be firmly set against a disastrous ‘No Deal’ Brexit, and if (as appears to be the case) the PM absolutely refuses to introduce emergency legislation in the next week or two to revoke the UK’s Article 50 notice and repeal the European Union (Withdrawal) Act 2018 (and to make various consequential amendments to other primary and subordinate legislation), the House of Commons must take control, by amending its Standing Orders to enable this, and bring in the necessary Bill themselves.

As I have said before, I do not pretend that this would be a final end to the Brexit debate, but with the pressure of time removed following the cessation of the Article 50 process, there would then be time for mature reflection and calm discussion of our future relationship with the EU, and (maybe in a year or two’s time) a fresh properly informed referendum on our membership of the EU, following a series of citizen’s assemblies which would be held first.

UPDATE (1 February): “Onward and upward - to the land where the Cloud-Cuckoos dwell!” After Theresa May’s stunning parliamentary triumph earlier this week, she is now deploying her unparalleled diplomatic skills, well, just re-read the blog post above. After all, nothing has changed.

There are still only two practical choices - (1) crash out of the EU on 29 March with no deal, or (2) revoke the UK’s Article 50 notice to bring the current abortive attempt to leave the EU to an end (and never mind all the guff about “the will of the people” or the mindless mantra that “the people have spoken” – that was over 30 months ago, and is well past its ‘sell-by’ date). After that, there can then be a proper ‘grown-up’ discussion on Britain’s future relationship with the EU.

Some people are inclined to say “Just get on with it.” But at least half the cabinet and a majority of MPs on all sides of the House of Commons appreciate that this is likely to be a costly mistake, even on the basis of the draft withdrawal agreement that was so decisively rejected by the Commons a couple of weeks ago, and will be an utter catastrophe in the absence of any agreement at all. So what we should be telling MPs and ministers is - “Pull the plug! And do it now, before it’s too late.”

UPDATE (15 February): Tick, tock. Theresa May's deal is just not going to be re-negotiated by the EU, and a disastrous 'car crash' Brexit, with no concluded withdrawal agreement, becomes ever more likely. The more the government runs the clock down, the more urgent it becomes to stop the clock before the time fuse detonates the Brexit bomb on 29 March. Simply 'extending' Article 50 is unlikely to resolve the situation, and will simply kick the can down the road yet again for a few more months at most. The Article 50 process needs to be stopped altogether, as the Father of the House, Ken Clarke, observed in yesterday's debate. Others, such as Sir John Major, have made the same suggestion. Unfortunately, most of the talk about Article 50 in the House of Commons is still focused on temporary postponement.

A final decision must be reached on Wednesday, 27 February, and the House of Commons must at last take back control and put in train the necessary legislation to halt Brexit for an indefinite period. Events on that date, and leading up to it, may prove to be quite dramatic, including possible resignations from both front benches. If MPs funk the essential decision on 27 February, then it may well be that all is lost.



  1. Good morning Martin.
    Concerning A50, you raise the interesting question of either extending the two-year period, or revoking it to give more time for reflection.
    As you say, simply extending the period would require approval of the r27. It's quite likely that this provision was included in A50 in case negotiations had not been fully completed. In our case, the negotiations have been completed, and the EU would be entitled to ask 'for what purpose do we need the extension?'; such a request would probably be refused.
    On the other hand, if we unilaterally revoke our notice by withdrawing it, the EU would require an unconditional acceptance that we stay on the same terms and as a full member. A comment to this effect was recently raised by an EU official, according to whom:

    "The revocation . . . must be unequivocal and unconditional, that is to say that the purpose of that revocation is to confirm the EU membership of the member state….The EU is not stupid…If Britain wants to revoke then the European council will want a clear commitment, in good faith, that it is going to remain in the EU.”

    As with an application to merely extend the period, I cannot see the EU accepting the UK revoking it - they would simply regard it as a ploy and send our letter back.

    1. A.Gilbert is absolutely right that a revocation of the UK’s Article 50 notice must be unequivocal and unconditional. As he points out, the purpose of that revocation is to confirm the EU membership of the member state.

      However, this is not to imply that a member state, having first invoked but then subsequently withdrawn from the Article 50 process, is then prevented from ever again seeking to leave the EU. As I mentioned in this blog post, I envisage a timescale of one or two years to resolve the issue of our future relationship with the EU, and readers will not be surprised that my expectation is that at the end of that period, having had a mature and considered nationwide discussion of the issue, it is very probable that the conclusion will be reached that the UK should after all remain a full and active member of the EU.

      The possibility that the UK could still decide in a year or two’s time to leave the EU after all would not, in my view, make the suggested revocation of our Article 50 notice within the next two months any less unequivocal or unconditional than is required, either by Article 50 itself or by the recent ruling of the CJEU. It is merely necessary that the UK’s notification of its revocation of its Article 50 notice is, in itself, unequivocal and unconditional. I would not suggest that our notification of the revocation of the UK’s Article 50 notice should be anything other than unequivocal and unconditional (notwithstanding any further purely internal political procedure that might subsequently be adopted in the UK to reconsider its future relationship with the EU).

      There would therefore be no legal reason that could justify the European Commission in seeking to reject such a notification of the revocation of the UK's current A50 notice. It is in any event clear that other member states, both individually and collectively, would welcome the UK's continued membership of the EU.

  2. 'a mature and considered nationwide discussion' - I guess we had better pack our bags after all.

    1. Oh, come now, Passer-by; that seems a little pessimistic.

      The atmosphere at the moment is febrile and ill-tempered, which is precisely why we need plenty of time for everyone to calm down, take a deep breath, and then begin a sensible fact-based discussion.

      An obvious question is “What has the EU ever done for us?”, and as in the Monty Python sketch where ‘Reg’ asks the same question about the Romans, you would end up with quite a long list of important benefits.

  3. Martin

    What an excellent piece. Revoke. Reflect. Revisit. It maybe that we do want to renegotiate our relationship with Europe, but let's first ask the people just how they would like to do that. It's a very different type of governing than we have been used to, but maybe a little bit more grown-up. Hitting us with nothing more than a riddle inside a conundrum (as in "Leave the EU") has proved to be the most embarrassing political error of modern times.

    1. Unfortunately, I fear that a good number of MP's have found themselves too deeply entwined in the political shenanigans and aren't thinking logically. They say they want to act in the interests of the nation and yet when you look at what the nation is saying, it's still conflicted. Although I have always been in the "remain" camp, I often read pro-Brexit sites/newspapers to try to understand why so many people voted to leave. Yes, there are some who made an "informed" decision but from what I can see there is also a number who are very dismissive of having to think about the intricacies of what Hard Brexit means or even leaving with a deal. I spoke to someone the other day who said, "we voted, get on with it". When I asked on what terms, they said they didn't care, that was for the PM to sort out. When I put it to them that one way to leave would cause drastic harm to the economy and the other moderate harm with a reduction of power/influence, they merely replied that it was the PM's job to ensure that we get the best deal and they won't do anything which results in harm to the country. They did not want to engage in the process. There is a blind faith that the grass is greener on the other side and that the politicians can get us there!
      If we have a second referendum, I think the result will still be close. It's doesn't help that while the Brexit negotiations have been a top priority, the government hasn't really sought to address the needs of many who feel marginalised (and who used Brexit as a way of being heard).
      I really hope sense prevails and we do get a chance to reflect, revisit and make an informed decision on where to go next...

    2. I agree with E.Woods that if a referendum were to be held immediately, the answer might be 'a lemon'. That is why I am proposing what amounts to a cooling off period. It would take quite some time to organise a referendum in any event (up to a year, perhaps), and we really do need to ensure that before we have a People's Vote, there is a fully informed discussion of the issues, based on verifiable facts rather than pure emotion and mere gut feeling.

  4. Please, not another 2 years of Brexit uncertainty and ill feeling. I don't for one moment think that people will calm down. Another referendum will further divide the UK. Leave wins again and we'll be faced with exactly the same issues we have now. Remain wins and those 17 million who voted to leave in the first referendum are going to look for a place for their voices to be heard and the far right movement will be only too happy to listen.

    In recent days the arguments on both sides have gotten more outrageous and quite sickening at times and I fear we will end up with a situation similar to what's happening in France. In my view we need to draw a line under Brexit as soon as possible to avoid violence and civil unrest.

    1. I wouldn't be suggesting this course of action if I believed that there was any alternative. But Theresa May has got herself into a narrow cul-de-sac that she seems unable or unwilling to reverse out of. The country is faced with a disastrous ‘car crash’ Brexit on 29 March, and it is now beyond doubt that the dire warnings of the consequences are all too realistic.

      For the reasons I have explained, postponing Brexit by extending the exit date under Article 50 is not a practicable option. Stopping the clock altogether (for an indefinite period) by revoking the UK’s Article 50 letter is now the only realistic way to avoid catastrophe.

      Once the pressure of a timetable has been removed, I believe that the temperature will be lowered, and that it will then be possible to hold a more rational discussion, leading to a cool, calm decision at a later date on whether or not we should after all leave the EU. I don't agree that this will drive people into the arms of extremist right wingers, but it might lead to voter apathy in future in leave-voting areas.

      Clearly, the underlying reasons for the 'Leave' vote 30 months ago need to be urgently addressed, and these having nothing at all to do with our membership of the EU, or with Brexit.

  5. Martin, you had me in agreement up until the last when you stated following a series of citizens assemblies. What the composition of these assemblies are I don't know (does anyone) but it would inevitably raise more discord than resolutions. How many should there be? Would I have a right of appeal if not chosen/selected? to attend. I could go on. No, there is only one citizens assembly in England (at least) and that is Westminster. The referendum result is clear and MPs should abide by it, or have a free vote as to whether to no-deal brexit or not (Remainer MPs would clearly win) and then call a General Election. It would then be incumbent upon voters as to how much weight they place on whether or not their sitting MPs actually abided by the referendum result.

    1. Citizen's assemblies are only an option. They were successfully used in Ireland as a preliminary step towards the referendum on abortion. I think citizen's assemblies would be worth considering as a part of the consultative procedure. But I have an open mind about this.

  6. Leave with no deal. Trade on WTO rules. That's the answer

    1. One often hears from the more insouciant sort of Brexiteer, “Well, we can simply trade under WTO rules”, but none of the 164 nations that belong to the WTO actually do so. They have all found it necessary to negotiate some kind of bilateral or regional trade agreement with other countries, rather than trading on WTO terms alone. WTO rules won’t be an effective basis for the UK’s trade with other countries in the absence of such bilateral or multi-party trade agreements.

      We currently rely on advantageous trade agreements made by the EU with numerous other countries, but these will all fall away immediately if we leave the EU without a deal, and it cannot be assumed that those other countries will then be willing simply to ‘roll over’ these agreements with the UK on identical terms. After all, Britain is a much smaller market than the EU, and so potential trading partners may drive a rather harder bargain with us than they currently have with the EU.

      There is also the problem of timing. Dr Liability Fox has managed to line up a pathetically small number of potential trade deals so far. Trade agreements inevitably take time (sometimes many years) to negotiate. In the meantime, the effect on Britain’s trade of “trading under WTO rules” would be disastrous.

    2. Unless I'm missing something here, it's my understanding that (in reference to your second paragraph: "We currently rely on advantageous trade agreements made by the EU...") the UK will retain those advantageous WTO schedules which were originally negotiated by the EU on behalf of each member state.

    3. I think Barrister’s Horse may have missed the point I was making. All (or very nearly all) of the members of the WTO have made bilateral or multi-party trade agreements with other countries, because WTO rules in themselves are not a satisfactory basis for international trade.

      Any arrangement the EU may have made with the WTO is between the EU itself, as a separate entity, and the WTO, and not between individual members of the EU and the WTO. Thus if any member of the EU leaves, they must start from scratch, and there have already been indications of some opposition to the UK’s trading independently under WTO rules (from the USA, among others). Nothing would be in place at the time of our leaving the EU if we ‘crash out’ on 29 March. We could not “just trade under WTO rules” at that date, and maybe not for many months or years afterwards.

      Even the Brexiteers within the government recognise that future trade will depend on separate trade agreements being concluded with individual countries or groups of countries. Existing trade agreements between those other countries and the EU cannot simply be ‘rolled over’ for us. They must be re-negotiated; and it cannot be assumed that the terms of any such agreements would be as good as the terms that EU negotiated with those countries. Meanwhile, until or unless the UK concludes such agreements, our trade will be severely ham-strung and foreign markets may effectively be closed to us, or will become uneconomically expensive to trade with.

      No possible trade deals anywhere in the world could come anywhere near matching the huge benefits the UK enjoys by trading as a member of the EU, both with other EU members and with other nations around the world under the advantageous terms negotiated on behalf of all its members by the EU.