21st November 2017
The UK government is encountering problem after problem with Brexit.
There is a real prospect either of there being “no deal” or of a capitulation to the EU’s demands.
In terms of administration – basic points such as customs and border control – the UK state is nowhere near ready.
But the accumulation of these difficulties does not make Brexit any less likely.
Unless something exceptional happens, the UK will leave the EU by automatic operation of law on 29 March 2019.
Very little can prevent this.
There is a possibility that the date may be delayed, though this would require EU agreement in one way or another.
There is also perhaps the possibility that the Article 50 process could be suspended or even cancelled, though Article 50 is silent on how this could be done.
But even these options would require political action as deliberate and formal as the Article 50 notification in the first place.
These options would not happen just because of the weight of the UK government’s difficulties.
The problems are legally irrelevant.
A hard firm legal process has commenced: it cannot now be easily derailed.
And there is no political prospect – at the moment – of the UK government seeking to change the course of departure: there is no general election due, the Tories and DUP have a majority in the Commons, and the Labour front bench nod-along with Brexit in principle, if not in some details.
For the Article 50 process to be stopped or even paused requires the UK government to make a decision it seems (currently) unlikely to make before 29 March 2019.
There is no obvious way the difficulties of Brexit can be converted to formal political preventative action: no glidepath, no way of joining the dots.
This is not to say that the difficulties are not immense: the Irish border issue is only one of many which seem impossible to resolve.
And it is not to say Brexit is inevitable: it could be prevented if the UK government or parliament wanted to do so, and the EU agreed (either the European Council or, if litigated, the European Court of Justice).
But automatic departure is the fixed default position.
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