A posthumous apology to Sir Doug Ellis

12th October 2018

(This post is not directly about Brexit, but you will see that it is.)

Sir Doug Ellis, the former chairman of the football team I follow, has died.

I used to think that all Aston Villa needed so as to be be great again was to be rid of him as chairman.

The thinking was this: he had been a chairman of and associated with the club in the 1970s, but when he was ousted the club then had its greatest successes, winning the league in 1981 and the European Cup in 1982.

And when Sir Doug returned in 1982 the club fell into (relative) mediocrity: runners-up here and a league cup or two there.  The books were balanced, certainly, but there was “no ambition”.

So the reasoning was simple: if Sir Doug could be replaced, Villa would spring back into its rightful place as champions at home and in Europe.

*

How wrong and idiotic I was in holding this view.

One day Sir Doug did leave the club to be replaced by an American businessman.

And the club’s recent decline began.

(I date the beginning of the decline to the then manager Martin O’Neill’s dreadful and eternally unforgivable decision to deliberately play an under-strength team in a UEFA cup match in Moscow in 2009.  Your mileage may differ, if you care at all.)

Of course, Sir Doug was not blameless: the sacking of Tony Barton in 1984 still rankles.

But after Sir Doug left, Villa become far, far worse.

And now we are in our third season in the wrong division, and in the bottom half as well.  Yet another manager has just been sacked, and there are further absent or distant millionaires in charge.  The club almost went bankrupt in the summer.

The truth appears to be that without Ellis, the club may well have sunk sooner and deeper.

Being a runner-up here and winning a league cup or two there now seems like a golden age.

*

Simple solutions are often false, especially when they are premised on memories of national and international greatness.

(You see, this post was about Brexit.)

And so I offer the ghost of Sir Doug Ellis an apology.

Sorry, Sir Doug,

**

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Theresa May and John Constantine

9th October 2018

One of the best stories – perhaps the best – of John Constantine, the sardonic DC comics street-mage, is Dangerous Habits (1991).

In this tale the dying Constantine stays alive by the simple and sensible expedient of promising his soul to three separate demons of Hell.

This means that the three demons then have to strive officiously to keep him alive, so as to avoid a civil war in Hell if Constantine dies.

(By outwitting devils, Constantine is very much in the tradition of the folklore character after whom this blog is named.)

*

The predicament of Theresa May and the Conservative Party is similar.

Few if anyone positively wants May to remain Prime Minister, probably not even May herself.

But the factions of the Tories know that if she goes, especially before Brexit is completed, then there will be a hellish civil war in their party.

One can stay alive a long time, sometimes, when people are desperate for you not to fall.

**

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A “Burma Brexit” – why Remainers should allow the Brexit mandate to be discharged

 

8th October 2018

We are now only a few months away from 29th March 2019, which is when by automatic operation of law the United Kingdom leaves the European Union.

(There are ways that this date may get delayed, and it is even still possible Brexit could get cancelled altogether.  But a delay or cancellation currently looks unlikely.)

This imminent departure is the legal truth around which politics is now revolving, or should be revolving.  It is the starting point of any understanding of the UK’s current predicament: “Marley was dead, to begin with. There is no doubt whatever about that. The register of his burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Scrooge signed it.”

This exit of the UK from the EU has been a legal fact since 29th March 2017 when the Article 50 notification was served on the European Council.  The notification was valid.  There is no serious doubt about that.  The Supreme Court insisted on primary legislation, Parliament passed the primary legislation enabling the Prime Minister to make a notification, a notification was drafted, and the Prime Minister signed it.

A legal timer started its countdown.

*

The legal fact of the UK’s departure on 29th March 2019 is perhaps the only fact about Brexit about which one can be sure (though that fact can change).  Everything else is uncertain.

Looking at British politics, however, one can get a sense that this fact is not properly appreciated.

There is, for example, what can be (no doubt unfairly) called the Brexit referendum re-enactment party, a bit like the Sealed Knot battle re-enactment enthusiasts but without the period costumes.

The intention of these campaigners is to discredit the result of the 2016 referendum, so that the perceived “mandate” is extinguished.

They have some good points: the Leave campaigns breached the law, false promises were made on the sides of buses and many other places, and people were misled into voting Leave when, had they known what was at stake, they would (or should) have voted Remain.

And yet:

– the 2016 referendum followed a 2015 manifesto commitment by the party which won that general election;

– the 2016 referendum had as its legal basis a dedicated statute passed by Parliament and its question was approved by the Electoral Commission;

– the European issue has dominated UK politics since at least the late 1980s and has caused (partly or fully) a sequence of political crises and problems and so it was an issue which needed to be resolved one way or the other;

– there was a lengthy campaign where the government used a considerable amount of public money in its campaign for Remain;

– the dangers of a Leave vote were pointed out in the campaign (even if dismissed as “Project Fear”): and

– the vote was still for Leave on a heavy turn-out.

The glaring question is not how Leave won the referendum but why Remain lost.

The referendum vote was, of course, not binding.  It was advisory (a point which I made at the FT before the vote took place).  It would need parliamentary approval.  The vote was not enough.

And so there was – correctly – litigation to force the government to obtain parliamentary approval.

But when this parliamentary approval was obtained, this still was not enough for many opponents of Brexit.

The 2016 referendum result had to be discredited by other means.

*

Another feature of current Brexit politics is the blame game.  This is popular among Leavers.

The blame mongers fear that the Brexit the UK is about to experience will not be pleasant.

This is not their Brexit.

But just as some Remainers want to pretend that the referendum result never really happened, these Leavers want to pretend that a successful Brexit was viable.

Any Brexit, especially one done at speed and without preparation or thought, was not going to go well.

And so either it would have to a Brexit existing in name only or it would be a catastrophic hard Brexit, with no continuity at all.

There was never enough time, or (frankly) inclination, for there to be any other outcome.

The ones to blame are those who supported the Prime Minister’s premature Article 50 notification: the MPs  who voted it through and the pundits who clapped and cheered.  They all should have known better.  Those are the guilty men and women, to allude to a once famous book about a policy failure.

Once that notification was made then nothing good or worthwhile was likely to come out of Brexit.

(And that is why I once thought no government would be mad enough to send the notification.  I was wrong.)

*

So we have a mandate which cannot be ignored and an approach to Brexit which cannot go well.

The UK has got itself into a bit of a problem.

The irresistible force of political legitimacy and the immoveable object of policy reality.

What if anything can and should be done?

*

There are Remainers who will fight the UK’s departure to the very last day.  In a way, they are to be commended, and they may still prevail.

But there is an alternative approach.

There is no obvious way to rid the UK of the referendum mandate, other than allowing it to be discharged.

Even a further referendum (the result of which nobody can be certain) would not be enough, especially if there is a lower turnout.  And there is probably not enough time now for the primary legislation required for a new referendum before March.

One could hope that Parliament could assert itself, and go against the referendum result, but Parliament had its chance to “take back control” with the Article 50 legislation, and Parliament blew it.

(This is not to say that the 2016 referendum result is absolutely binding.  No electorate can bind another, and a referendum result is either democratic or irreversible, but not both.  But I cannot see any way the 2016 referendum can now be reversed in practice.)

On 29th March 2019 the mandate will be discharged.  The result of the 2016 referendum will be honoured.  The UK will be out of the EU.

*

And then what?

What follows Brexit may be longer-lasting than the UK’s membership of the EEC/EU.  The UK’s membership will have been 46 years, the next arrangement may be even more durable.

At the moment, however, few people are putting any practical thought in to what follows Brexit.

We have instead the referendum re-enactment players and the blame gamers.

In terms of substance, rather than form, any future arrangement can keep the UK in the EU’s customs area, and can allow the UK to (in effect) be part of the single market.  And as the mandate will have been discharged the referendum result will not (or should not) have any further purchase.

On this basis, it would seem sensible to encourage the UK to enter the withdrawal agreement on offer – the so called “transition period” is in reality a continuity provision.

And after 29th March 2019, the aim would be to convert the transition period into a permanent association agreement.

I sometimes call this a “Burma Brexit” after the British Army’s dignified retreat in World War II which was skilfully converted into a impressive victory.

Many Leave politicians  will not be able to counter this, as it requires a grasp of detail which few have shown, and in any case their mandate will have been discharged.

So rather than hoping for (and revelling in) disasters and setbacks, a wiser approach of those who value the UK’s ongoing relationship with the EU is to support the government’s attempts to get a withdrawal agreement in place.

A “no deal” Brexit will make a close association agreement far less likely, as the best basis for such an agreement will be the so-called “transition” terms themselves.

Of course, events may overtake this.  Brexit could still be delayed or cancelled.

But on the basis of things as they are now, we should be encouraged by the title of the book by the architect of the Burma campaign: Defeat into Victory.

**

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The contexts of Thatcher’s Bruges speech of 1988

26th September 2018

Last week was the thirtieth anniversary of the “Bruges speech” by the then prime minister Margaret Thatcher.

Over at the FT I did a piece on the anniversary, contending that the speech was not the start of the road to Brexit (a view put forward by a number of pundits).

Instead I suggested that it was that by disregarding that speech that Conservatives took us on the road to Brexit.

The peroration (of sorts) to the piece was:

“…for two fateful years, 2015 to 2017, the Conservatives did have an overall majority.

“And they unleashed first an in/out referendum and then a botched Brexit.

“They may well have now brought the UK down with them.

“None of this happened because of the Bruges speech, in which Thatcher set the Conservatives the challenge of fashioning the future of Europe.

“It came about because many in her party disregarded the Bruges speech and decided to retreat from the EU instead.

“The road to Brexit began not with the Bruges speech, but with its rejection.”

This proposition may be right or wrong, and it is ultimately a matter of opinion and interpretation, as is any attempt to make causal connections between historical events.  If you have a view, go over to the FT if you can and leave a comment there.

The purpose of this post is not to re-assert the argument made at the FT but to set out what I think are the relevant contexts to the Bruges speech.  Some of these contexts are set out in the FT piece, but I thought they warranted a separate post on this blog.

In doing this “contextual” post, I realise that it is not “black-letter” law.  But if you want black-letter law, go to law school.  This blog (and my writing at FT and elsewhere) is about law and policy, which means (if it means anything at all) putting law into context.

And understanding the context of contested views about the nature of the European Union (formerly the European Communities, including the European Economic Community) and of the single market, makes it easier understand many of the law and policy aspects of Brexit today.

(And by way of background, in 1988 to 1990 I was a politics student and (then) Conservative activist with Euro-sceptic views, and so what follows is based partly on recollection, and memory of course can have its own bias.  And I have not supported the Conservatives for over ten years, since around the David Cameron pledge to repeal the Human Rights Act.  I am now a non-party small-l liberal and far more on the Left than Right.)

*

1988 was four years before 1992, and at the time the latter seemed a more significant date for Europe.

“1992” was the shorthand for a campaign of awareness of the completion (or supposed completion) of the Single Market.

In April 1988, five months before the Bruges speech, Thatcher launched the “1992” campaign at Lancaster House.  It is worth reading the speech in full, but here are a couple of highlights:

“How we meet the challenge of the Single Market will be a major factor, possibly the major factor, in our competitive position in European and world markets into the twenty-first century.”

Indeed.

And:

“By 1993 Europe will be our home market.

“That means that we won’t just be exporting to eleven other countries. We will be doing business in a single domestic market. Getting to grips with that basic proposition will mean a major re-think, for companies of every size […] 

“Above all, it means a positive attitude of mind: a decision to go all out to make a success of the single market.”

*

The “1992” campaign, I recall from speaker and discussion meetings and conferences at the time was not a cause of any enthusiasm among Tory activists.

But nor was it the cause of particular disquiet.

My recollection was a sense of reluctant pragmatism.

But when in the early 1990s, it appeared that for enthusiasts for European integration the achievement of “1992” was not enough.  There was then a push for the European Communities to be converted into a European Union.

This was the run-up to the Maastricht Treaty.

I remember a sense that this rush, before “1992” had settled, seemed like taking a step too quickly and too far.  It seemed that those in favour of European integration would never be satisfied.

I thought (and still think) it was a mistake for an impatient push for creation of a European Union (and for monetary and currency union) to begin before the single market had properly become embedded and the benefits appreciated in the UK.

*

In the late 1980s there was a sense among Tories of euphoria and, in hindsight, hubris. At the 1988 Conservative Party conference (which I attended), the slogan “ten more years” was as common as “make America great” at any Trump rally.

At home, the trade unions had been (or at least had seen to be) defeated.  This was partly because of the trade union reforms of Norman Tebbit and others (which have never been significantly repealed, even by later Labour governments), partly because unionised sectors of the economy had disappeared or had weakened, and partly because of the symbolic victory of the British state over the badly led miners strike.

Abroad, and to the extent Tories of the time thought about Europe they thought about in terms of the Cold War and the threat of the Warsaw Pact than anything to do with the EEC, it seemed also that the Conservatives had “won”. Gorbachev was a person whom Thatcher could do business with, and although the sudden collapses of the Iron Curtain (figuratively) and the Berlin Wall (literally) in 1989 to 1990 were surprises, there was from the mid-1980s onwards a sense that the Cold War was becoming less intense.  And the UK could be again proud in the world (and the genuinely impressive triumph in the Falklands bolstered this sense of international confidence.)

The enemies “within” and abroad looked as if they were vanquished: the scalps of enemies from Galtieri to Scargill hanged on the mental walls of the Tories of the time.  The 1987 general election had seemed a walk over.

It was a time for new opponents, for new foes to be defeated in the “ten more years”.

*

One enemy which was identified was “wasteful” and “loony left” local government, and the urge to check this explained the folly of the community charge (ahem, Poll Tax).

The other became European federalists seeking to impose a European super state.

*

The “Bruges speech” was not the only significant speech about the future of Europe in September 1988.

Earlier that month, at the Trades Union conference, the European Commission president Jacques Delors had made an emphatic demand that there be a social dimension to the EEC.

The Delors speech is worth reading along with Thatcher’s Bruges speech.  One is almost a reply to the other, two visions of the future of the EEC.

I recollect that the effect of the Delors speech seemed profound on those in the Labour movement, who had been sceptical of the European project.  As recently as 1983, the Labour Party general election manifesto had proposed UK’s withdrawal.  Then well-known Labour politicians, from Tony Benn and Michael Foot to Peter Shore were openly hostile to the EEC.

But the Labour left, which were as dispirited as the Tories were euphoric, saw in what Delors had to say a way of checking the excesses of the Tory UK state, and there seemed a general acceptance of the social dimension of the EEC, a Euro-enthusiasm which was to hold the Labour leadership until Jeremy Corbyn became leader.

*

But in 1988, the Conservatives were the more European of the major two parties.

Winston Churchill had promoted a united states of Europen in his post war speeches.

Harold Macmillan had seen EEC membership as a replacement for the loss of empire and the limitations of the commonwealth.

Edward Heath had taken the UK into the EEC in 1973.

The Tories had officially campaigned “yes” in the 1975 referendum.

And the Single Market itself owed greatly to the Tory politician Lord Cockfield (in my mind the most significant Tory politician of the 1980s after Thatcher).

The Conservatives in parliament under Thatcher had endorsed the Single European Act, the biggest shift to date (and perhaps ever) of power from member states to the Brussels institutions.

There were exceptions, of course, though Powell had long left the Tory party and the most prominent Euro-dissident John Biffen was famously “semi-detached” in cabinet).

But the Conservative Party at the time of Thatcher’s “1992” speech and then her “Bruges” speech was a pro-European party with an impeccable track record.

*

But.

The Bruges speech soon became something it was not.

In the speech, Thatcher states (in a phrase which riles many Brexiteers):

“Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”

The speech was not a rejection of the EEC.

It instead was setting out a vision of the EEC.

And the venue was important: this was not like Theresa May seeking to placate political backbenchers.  Thatcher was leading from the front, at the College of Europe, seeking to take on those with alternative views.

The Bruges speech was a call to arms, not the sound of the bugle of defeat.

And it was, perhaps, the last “pro” European speech of any UK prime minister.

*

After 1988 the attitude of many Tories, and of the right wing press hardened.

1990 was the year both of the infamous Spectator cover of Kohl as Hitler and of The Sun’s Up Yours Delors.

This was two years on from the “1992” and “Bruges” speeches of Thatcher.

Something had changed.

The tendency became not to show that the “Bruges” vision of the future of Europe was better and more attractive than the federalist alternative.

Instead the other side became the enemy, to be insulted and reviled.

As far as I recall, no leading minister from John Major downwards made a pro-European speech after he became prime minister in 1990.

The divisions in the Tory party during the passage of the Maastricht treaty became deep and hard.  Eurosceptics became, in effect, a party within a party, with their own groups and publications.

There was lots of politics.  MPs had the whip withdrawn.  There was a leadership challenge.  MPs in favour of taking the EEC seriously resigned the whip and joined over parties.

Elsewhere in the EU of 1992, the Danes rejected the Maastricht treaty to the jubilation of many Tories in the UK.  The French had only a bare majority in their referendum

And then there was also “Black Wednesday” of 1992, which discredited (or was seen to discredit) those in favour of UK participating in monetary and currency union.

It was not becoming difficult to be an opponent of the EU project.

1992 was turning out to be a different sort of year for the European project than that envisaged in Thatcher’s speeches of 1988.

*

Within four of years of 1988, Thatcher’s positive vision of what the EEC seemed out-of-date. Only her warnings of the other more federalist visions seemed relevant.  The EU seemed not to be going in Thatcher’s direction.

And in later years, Thatcher was reported to be no longer a fan of the EU in any way.

Her supporters and fans no longer sought to reform the European project but to move the UK away from its centre.  The Conservatives left the centre-right group in the European parliament.  Every opt-out was received with a demand for more.

And so contrary to the “Bruges” speech, many of those who followed her sought some form of existence on the fringes of the European Community as our destiny no longer seemed to be in Europe, as part of the Community.

Perhaps given the push to European integetion at Maastricht and afterwards, perhaps that shift in attitude was inevitable.

But in 1988 things did seem very different.

**

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Why Brexit is both exciting and not exciting at all

19 September 2018

Brexit is exciting to a follower of politics: every day it seems there is something new, and one can often swing from thinking there will be a deal or no deal, or even from thinking there will be Brexit or no Brexit.

Brexit is a news event well suited to social media and rolling news.

But from a “law and policy” perspective, following the ball rather than the political players, there is less excitement, more a sense of inevitability.

The Article 50 notification was made on 29 March 2017 and so the UK will leave the EU by automatic operation of law on 29 March 2019, unless something exceptional and currently not in view happens.

The EU27 has in turn put forward a withdrawal agreement which provides them with comfort.  This will probably be agreed before March.  This agreement provides for a transition period which is, in reality, a stand-still period.  There are still aspects to be agreed but it is heading towards final form and approval.

Over at the FT today I have set out why the current Salzburg summit may not be that important in respect of Brexit: just another minor step, and one which may soon be forgotten.

Of course: this may be wrong and that politics may erupt spectacularly in such a way so as to mean Brexit will not happen, or will be delayed, or whatever.

But unless that happens in the decreasing time available, all there is to see is the grim rolling of the conveyor belt taking the UK out of the EU, despite the noise and fury of day-to-day and minute-to-minute politics.

**

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Why has Brexit become a legal matter when it should be a political matter?

11 September 2018

Any legal commentator on public affairs is faced with a common criticism: why don’t you understand this is all about politics, not law?

And often this is fair criticism.

An approach which is too legalistic is, of course, one which is too narrow.

(For example, I once thought no government, acting rationally and in the national interest, would do something as mad as making the Article 50 notification, for reasons which are now too apparent.)

But as Brexit continues, in a fashion, Brexit seems to become ever more legalistic.

The Article 50 process means that the UK leaves the EU by automatic operation of law on 29 March 2019, unless something exceptional and currently unforeseeable happens.

This is the fundamental legal truth which informs almost all the current politics about Brexit.

The stand-off in the withdrawal agreement is about finding exact text to address legal obligations under the Good Friday Agreement and in respect of the Irish border generally.

The withdrawal agreement also deals with legal issues such as the post-Brexit rights of UK citizens in the EU and EU citizens in the UK.

And then in respect of the future relationship between the UK and EU there re the legal issues in respect of free movement and tariffs and trade.

What, if anything, do “WTO terms” mean?

(And what, if anything, will be left of the rule-based regime of the WTO after Trump?)

*

Law everywhere.

Almost every current Brexit issue now seems primarily about law: what must be done, what must not be done, and what can and cannot be done, in various scenarios.

How has this been allowed to happen?

Surely Brexit should not be about what the lawyers (and the courts) say is possible?

And surely the black-and-white texts of the withdrawal agreement and any agreement covering the future relationship are second-order problems, which should only be mere translations into formal prose of what politicians and diplomats are agreeing?

Lawyers should know their place.

But the reason why legal (and legalistic) issues have become so important – almost determinative – in Brexit is because of the complete failure of UK policy.

*

The UK does not, in any meaningful way, know what it wants out of Brexit.

And the EU is following a process to safeguard its own interests and to seek not much more than an “orderly” Brexit.

There is therefore a policy void, in which the UK stumbles along.

The process is defaulting to a sequence of legal points because there is a vacuum where a Brexit policy should be.

The lack of a Brexit policy is both remarkable and disappointing.

Those UK politicians who were opposed to the EEC and then the EU have had 45 years to develop an alternative to membership.

But even the controversies over the passing of the Maastricht and Lisbon treaties did not lead to the formulation of practical counter-proposals.

*

If one looks to the leaders of the Brexit campaign, we can see columnists (Boris Johnson, Michael Gove, Daniel Hannan), broadcasters and studio pundits (Nigel Farage) and talented self-publicists (you know who).

All of whom can make passionate cases in various media for Brexit, in 500 or 1,000 words.

But if you ever examine what they say carefully, there is little or no policy substance.

Their only response to any Brexit setback seems to be yet another rousing op-ed piece or an angry appearance on radio or television, but nothing more.

*

Compare and contrast this policy flimsiness with other serious politicians who drove through fundamental policy reform: R. A. Butler on education, Aneurin Bevan on the NHS, Norman Tebbit on trade union reform, Lord Cockfield on the single market.

The lack of seriousness of the Brexit politicians is stark.

This is why the UK’s approach to Brexit has been reduced to a sequence of improvisations and media-driven pronouncements, from Theresa May’s Birmingham conference speech of 2016 to the Chequers proposal of this year.

All are manouveres to hold a political position, but there is not any policy vision. Even the formal Article 50 notification was given no more thought or substance than a press release.

*

And so we are reduced to bickering about what the Article 50 process can and cannot permit, what can and cannot be done during a transition period, what can and cannot be done in the event of no withdrawal agreement, and what can and cannot be agreed with regard to the Irish backstop, and so on.

Law should always be servant of policy, not the other way round.

That Brexit has been and continues to be driven by legal and process issues signifies the absence of strategy and concrete policy.

Brexit has become legalistic only because insufficient effort and thought was put into making it something greater.

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The current likelihood of various Brexit outcomes

30th July 2018

Nobody knows what will happen with Brexit.

Nobody: no politician, no businessperson, no official, no pundit, no diplomat, no thinktanker, no citizen.

Nothing is so certain as to constitute knowledge.

One day, of course, when we know the outcome, there will be commentators who assert that what happened was inevitable all along.  But, as of now, those commentators cannot predict what that outcome will be.

All we have are best guesses – assessments of probabilities and possibilities.

*

So how does it look today?

The most likely outcome is that the UK will indeed leave the EU on 29th March 2019.

This is because that will be what will happen by automatic operation of law, unless something deliberate is done to delay or stop it.  Nothing more needs to be done.  No further variables need to be posited.  We all just watch the UK go on to the end of the conveyor belt.

*

Will that departure be with an exit deal?

This seems more likely than not, although this is far from certain.

As I have set out in another post, there are six reasons to believe a withdrawal agreement will be in place before next March.  In summary these are: that the parties (the UK and EU27) want an agreement, that it is in the interests of the parties to have an agreement, that the parties are negotiating, that there is a text which is already 80% complete, that there is still sufficient (though decreasing) time for an agreement, and that the primary outstanding issue (the Irish backstop) is more about means than an end (in that both sides agree this is about a risk to be addressed, they just have different views on how to address the risk).

This analysis may be incorrect.  But if the withdrawal agreement is done in time, it is difficult to see how the UK will not depart on 29th March 2019 – not least because the withdrawal agreement covers EU’s main points of concern.

(And if there is a withdrawal agreement, one further possibility is that the parties agree to vary the exit day from 29th March 2019 to, say, the end of the currently proposed transition period, 31st December 2020.  This would have the merit of avoiding the need for elaborate transition arrangements.  It would be sensible.  And it probably will not happen, because the UK does not do Brexit sensibly, it does it stupidly.)

*

What if there is no withdrawal agreement?

Then, all other things being equal, then UK still goes on to the end of the conveyor belt and on to its post-Brexit future.

The parties could agree to extend the two-year negotiation period.  This means the UK remains part of the EU for at least a while longer, for the exit agreement to be finalised.

But the two-year period is likely to be capable of extension only if negotiations are continuing and that an agreement is in sight.  The period may not be capable of just being extended for any other reason.

*

Could there be another referendum?

Putting aside that referendums are (in my view) part of the problem and not the solution, and that there is no compelling reason to believe there result will be different from the last one, there is (as I have set out elsewhere) not enough time for all the necessary legislation to be passed and in place by next March.

There would have to be an extension of time.

The EU would probably agree to such an extension, as long as the withdrawal agreement was finalised.

But as it stands, no leading politician is in favour of a further referendum; the government and official opposition are against having one; and parliament is now away until September.

There could be a referendum, but there currently is no real prospect of one.

*

Could Brexit be cancelled?

It is now an accepted sign of madness to debate whether the Article 50 notification can be revoked or not.

The best that can be said is that nobody knows for certain but that it is highly likely to be revokable as long as it is done in good faith – and not just because the UK wants to re-start the clock to improve its negotiation position.

*

Is such a revocation likely?

As it stands, there is no indication that this is a serious possibility.  There would need to be a profound political shift in the UK in the few months now left before the current date of Brexit.

Until recently I would have said this would be impossible.  But recently the news that, if there is no withdrawal agreement, there may be food and medicine shortages, as well as other stark and unwelcome eventualities, there could perhaps be a path opening up to revocation.

Far more likely is that the possibility of such dreadful situations will put more pressure on the UK to agree a withdrawal deal which avoids calamities after March 2019.

But, as this post began, nobody knows for certain.

*

We are still in the eye of a political crisis, the outcome of which nobody knows.

All we have are probabilities and possibilities.

Brexit used to mean, in that glib phrase, Brexit.

We still do not know what Brexit will mean in practice.

**

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Why has Brexit come to warnings about food and medicine shortages?

25th July 2018

For some time, one common contention of those supporting Brexit is that the UK should prepare for a “no deal” Brexit.

This preparation would, it is asserted, put pressure on the EU in the exit negotiations because the UK could then threaten to walk away rather than accept a bad deal.

These contentions are all very well while they are glib, pat phrases.

But problems arise when such sound-bites need to be translated into substance.

And it now appears that those problems are arising.

In particular, pro-Brexit government ministers are now – seriously – setting out how food and medicines need to be stockpiled in case the UK leaves the EU without a deal next March.

So, after two years of negotiation with the EU, and after two years of withdrawal legislation clogging up parliament, the most tangible effects of Brexit which pro-Brexit politicians can offer are…

…impending food and medicine shortages.

Well, perhaps the ration books will be blue.

This is not to say that contingency planning is wrong.  It is also not to say that the UK is likely to leave without a withdrawal agreement (on that I am still optimistic, see my post here – but also see the less optimistic comments below).

But Brexit was not supposed to be like this.

What was sold as a form of national liberation is instead becoming a national humiliation.

Another aspect of the government’s botched approach to Brexit came yesterday with the concession in the new white paper that the European Communities Act will, in effect, not be repealed when UK is expected to leave the EU on 29 March 2019.

Through legal sleight-of-hand it will continue in parts until at least the end of the transition period expected to be on 31 December 2020.

This is legal common sense: such far-reaching legislation should not be repealed in a big bang, but dismantled slowly as appropriate.

But the same pro-Brexit politicians who are now reduced to warning of impending food and medicine shortages are the ones who insisted that the government defy legal common sense and have the 1972 Act repealed in one big bang.

Yet again, gesture and superficiality over substance and thought.

And so, as I have set out at the FT, the government now has to amend its own legislation to get round this absurdity.

Stepping back: Brexit did not have to be done this way.  As I have contended elsewhere Brexit could have been done in a sensible way, but it would have taken years and in slow stages.

This would have meant, of course, that Brexit had to be taken seriously.

But few of those in favour of Brexit, either in politics or in the media, take Brexit seriously.

Instead we had short-term headlines and claps and cheers at every unforced error by the government.

So we now have warnings of food and medicine shortages – and from those who not long ago dismissed any concerns as “project fear”.

**

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Six reasons why it is likely there will be a Brexit exit deal

23rd July 2018

How likely now is a no-deal Brexit?

Many serious people are worried that the UK may leave the EU next March without a withdrawal agreement in place.

Stepping back, there are six pointers to there being an exit agreement in place in time.

The first is that both sides want an agreement.

The second is that it is in the respective interests of both parties that there is an agreement.

The third is that the two sides are still negotiating.

The fourth pointer is that there is a text which is 80% agreed.

The fifth is that there is plenty of time before next March (and even before October which is preferred deadline of the EU).

And sixth, the current difficulties about the Irish “backstop” arrangements if there is not a future relationship agreement are a disagreement about means rather than ends.  Both sides accept that this is an issue to be addressed and a risk to be managed.

Putting into this perspective, the current noise about there a “no deal” Brexit should not be too disheartening.

But a call for calm is not an invitation for complacency: the negotiations can still collapse, and there is a non-trivial chance that the UK will leave the UK by automatic operation of law on 29 March 2019 without a withdrawal agreement in place. Policy and law are not often logical or sensible.

(No doubt this disclaimer will not stop a commentator saying “but you are making an assumption that…” when I am not making any such assumption.)

Overall, it is far too early to panic.

**

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A Slartibartfast Brexit

26th June 2018

Today we heard this Brexit news from the Secretary of State for Business Greg Clark:

To which the estimable former UK trade policy official David Henig commented:

The UK appears to now be devising a special “Norway” model for Brexit.

*

 “Did you ever go to a place… I think it was called Norway?”

“No,” said Arthur, “no, I didn’t.”

“Pity,” said Slartibartfast, “that was one of mine. Won an award you know. Lovely crinkly edges. I was most upset to hear about its destruction. … Perhaps I’m old and tired, but I always think the chances of finding out what really is going on are so absurdly remote that the only thing to do is to say ‘hang the sense of it’ and just keep yourself occupied.”

**

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