It’s early September 2018. Officially Brexit – 29 March 2019 – is now just 199 days away.
Lest we forget, the Withdrawal Agreement that is due to be agreed is supposed to deal with three issues – citizens rights, budgetary contributions, and the Irish border. There is something like an agreement on the first two (even though registration of EU citizens in the UK, and UK citizens in the EU remains problematic), and the UK government’s insistence on a Brexit transition period up until the end of 2020 (and an agreement to pay into the EU budget as now until then) largely covers the budgetary issue.
So it is Ireland border issue on which everything hangs, as I sketched out in this tweet.
The EU’s proposed so-called backstop (explainer here) has met with increasing opposition within the UK (and especially from the DUP in Northern Ireland), leading Theresa May to propose a barely thought through alternative in her Chequers Plan (explainer here), and that has not gone down well with the EU side.
But all the EU and the UK actually need is a Withdrawal Agreement, not anything on the future relationship (so Chequers is mostly the latter), is a familiar refrain in response to this (it’s a line I repeatedly hear from commentators I otherwise respect like @odtorson and @mark_johnston). I do not see it that way.
The Northern Ireland backstop is only even needed because the UK Government is intent on pursuing a Hard Brexit, namely leaving the Customs Union and Single Market. In other words, the UK’s medium term view of its future relationship is determining how the EU is dealing with the Irish border issue right now in the Withdrawal Agreement.
Were the UK instead to aim for a Soft Brexit, staying in the Single Market and Customs Union, the backstop issue and the theoretical constitutional issues it throws up evaporate immediately, but the UK Government is not tacking towards the Norway option. The only other way out of this conundrum, short term, is what has come to be known as Blind Brexit, namely to leave the EU but with no idea about how the long term UK-EU relationship will look, but simply with the intention that the border in Ireland will stay open until a solution is found.
But then who is going to go for this, essentially postponing any meaningful discussions about the future UK-EU relationship until after Britain has left? The EU side can probably just about live with it, but Ireland would rightly feel aggrieved – the border problem is just deferred, not solved. Macron is also not keen on Blind Brexit. The slogan for Vote Leave was Take Back Control, but this proposal is the very opposite of that – the UK would commit itself to a Brexit transition period until at least the end of 2020 (and that would probably have to be extended), without any knowledge of how Brexit is ultimately going to look medium term or how to keep the border in Ireland open. Would there be a majority for such a plan in the House of Commons? It’d be tight I think – would Grieve and Soubry go for this? Labour I am pretty sure would not.
Anyone still arguing for the UK to Remain in the EU should also vehemently oppose such a Blind Brexit plan, for once the UK is actually out of the EU – however lacking in detail that Brexit is – so disappears all UK representation in the EU institutions, and then the only route back would be for the UK to re-apply to join sometime using the regular accession procedure, something I cannot see happening for a generation or more. Any further referendum – were it to happen after exit – is pretty much useless then, for all it could decide would be what ongoing relationship with the EU the UK would want as a non-member.
Which leads us to the more interesting argument about a “People’s Vote”, namely a second referendum before the UK leaves the EU. I am not much of a fan of referendums, but Brexit cannot be reversed without one as I see it.
Yet as UCL’s Constitution Unit blog so coherently argues here, trying to organise a further referendum any time before 29 March 2019 is next to impossible, given the complicated legal route to get to that point. There is also the question as to whether such a rushed referendum would in the end be any better than the first one in terms of information and genuine participation.
Which then leads us back to the issue of Brexit delay, something that Nick Clegg spoke of in an interview a few days ago in Die Zeit. Green member of the Bundestag Franziska Brantner argued similarly in August. I’ve been making this case since January. The Article 50 period can be extended with the unanimous agreement of the other 27 Member States of the EU – a high but not insurmountable hurdle, given that the EU also wants to avoid No Deal Brexit, and probably only possible after political upheaval of some sort in the UK. With the clock effectively stopped, both the UK and the EU could breathe a small sigh of relief and try to work out something of more substance than a Blind Brexit – that could then be put to a referendum sometime later (probably in 2020), or – if better thought through than a Blind Brexit – it could command wider parliamentary support. Yes, this would mean that a European Election would have to be organised in the UK, but I see that as a small inconvenience for the EU, and better from a democratic perspective than putting the UK into a transition period outside of the EU in a Blind Brexit situation. The UK MEPs and the UK Commissioner would then leave the institutions if and when Brexit happens.
As time is at a premium and politicians get nervous, so the pressure to strike a deal – any deal – will grow. But there are other ways forward here if politicians, especially in the UK, are brave enough to take them. By mid-November, or about 70 days from now, we’ll probably know how this is going to work out.
“Once the UK is actually out of the EU – however lacking in detail that Brexit is – so disappears all UK representation in the EU institutions, and then the only route back would be for the UK to re-apply to join sometime using the regular accession procedure, something I cannot see happening for a generation or more.”
This perfectly sums up the desperation by the Remain side to obtain another referendum, whatever the cost. Peter Hitchens was correct when he predicted before the referendum (2016) that it would lead to massive constitutional problems and upheaval. They simply don’t work with our Parliamentary democracy.
If only we had pursued the so called Norway option from the beginning, as advocated by Richard North in Flexcit. I see you have had a few run-ins with his son, Peter, but, nonetheless, their approach was the most sensible way to leave the EU and would have caused the least problems. The boat hasn’t completely sailed on the Norway option, but it would now require a complete change of direction by the Government – which seems about as likely to happen as they are to agree a second referendum!
Article 50 is a treaty clause and as such cannot be amended just like that, but would requiire a wholesale revision & re-negotiation of the Lisbon Treaty, which in the current geo-politiical climate is a non-starter. Really though, the question is whether such an extension of the A50 notice period would actually achieve anything at all? The dialectic required to finalize an acceptable withdrawal agreement is not between the UK and the EU, but almost wholly within the Conservative Party, where the argument appears to have bogged down into what can only be kindly described as a circle jerk – the longer B-Day is away, the longer the argument will continue, most probably to the point where any sane & rational person will simply lose the will to live and wholly give ground to even the most inane of the ultra-Brexiter’s suggestions. As there is no organised or competent political opposition within Parliament to tame the worst excesses of Brexit, I’d rather the UK be shocked into the actual reality of leaving than to continue ad nauseam in this stupefying Zombie zone that is Brexit.
The EU treaties required the approach being taken, thus the EU institutions have only limited discretion / room for manoeuvre.