Three visible paths out of the current Brexit fog

26th November 2018

So where are we now on Brexit?

We are in a fog.

We are in a situation the outcome of which nobody can predict, at least with any certainty.

There is no pundit, no official, no politician who knows what will happen with Brexit.

In this fog, however, there are paths which are currently more visible than any others.

*

First, the UK will leave the EU by automatic operation of law on 29 March 2019 – that is, unless something happens to prevent it.

In domestic legislation, the European Communities Act 1972 is also set to be repealed on 29 March 2019.

So this is the default predicament – the quickest way to the bottom of the slope.

Nothing more need to be done for these two legal events to happen, and for these events not to happen will take substantial effort.

This will be the path of least resistance, even if it would be a disaster in practice.

But it is not the only path.

*

The second visible path in the fog is accepting the deal.

The deal has been negotiated by both sides, and there is a single agreed text for both sides to now endorse and ratify.

The EU has already endorsed it senior level though the European Parliament has yet to approve it or veto it.

Signing this agreement would, for the UK, to be path of next-to-least resistance.

The problem here is that it seems that there are not enough MPs to approve it.

If there is not not enough support in the Commons, the UK can either drop back down to the path of least resistance (a no deal Brexit as above) or somehow do something else.

*

If the EU is sincere when it says it does not want to re-open negotiations, then the current deal will be the only deal on offer, regardless of whether UK seeks extra time for a referendum or otherwise.

In other words, the choices above will not change.

(I cannot see any political appetite on either side for my preferred option of abandoning the Article 50 process, and for the UK and EU to negotiate the withdrawal and relationship agreement together as a single treaty, for as long as it takes.)

And so the only other option would presumably for Brexit to be abandoned altogether.  Only “remain” remains once the other options are discounted.

That is the only other visible path, but it will be quite a climb(down).

*

A number of good and sensible people can see other things in this fog, paths leading elsewhere.  I hope they are right, and I hope they will forgive me for not being able to see these other paths out of the the current mess.

But a genuine worry must be that the UK government continues to take the path of least resistance and falls into a no deal scenario.

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44 thoughts on “Three visible paths out of the current Brexit fog”

  1. If the ECJ confirms that the UK can unilaterally revoke its notification under Article 50 when it meets this week, there is another viable option. Despite the rhetoric, May must know how damaging a “no deal” Brexit would be, if, having championed the Brexit cause to the best of her abilities, her “deal” is unacceptable, she could pull the plug on it. What other interpretation can you put on her “… or no Brexit” threat? It is certain that HMG already has legal advice on the revokability of notice. Were it the case that it cannot be withdrawn, surely HMG would not have tried to block the legal move or would simply have published the advice already that the blue touch paper is lit and cannot be extinguished.

      1. Indeed, it is. However, it is a viable mechanism which has had little public discussion to date. It is also, arguably, within the control of the PM, allowing her a failsafe if her proposal enjoys the fate widely expected of it. It is also a direct challenge to the Tory Brexit wing: support what I have negotiated or there’ll be no Brexit.

        I think you have often argued that a defualt Brexit is all the more likely because of a lack of time to call a referendum, but this scenario only needs an executive decision.

      2. It’s either remain, or heading towards replacing A50 with the treaty option. Which in turn, as we’ve discussed before, could lead to Brexit sitting on that dusty back shelf… (cough, where it belongs).

      3. It does open the way for another go at Brexit. It might make the EU an even tougher negotiating partner than it already is. Uncertainty, that killer of business investment, would continue. However, I suspect that the current deal would only marginally reduce business uncertainty because, as many commentators have noted, the hard part of negotiations hasn’t started yet. So, I don’t think revoking article 50 necessarily means Remain but, if it doesn’t, it really only offers time. Our government has already shown that it cannot use time wisely, so it doesn’t look like a useful route for renegotiation.

    1. Is there any chance ECJ won’t allow UK to revoke? As I have followed Joyon’s case from early on I could see that it was a path that needed to be followed for completeness, but what if it didn’t come out the way we wanted? If they say No can the EU ignore that decision? Surely not. So why then risk that possibility?

      1. If that is what the Court rules, after all this, then I fear there is part of me which will want to laugh like a drain. Sorry.

        1. I’m sorry you feel that way. Please remember that there are five million people who face becoming illegal aliens overnight if there’s no deal. For those of us who could lose the right to live in our own homes or access healthcare on 01 April, Maugham’s case is one of the few lights in the awful darkness of the past two and a half years.

      2. Article 68 of the Vienna Convention on the Law of Treaties states –

        “A notification or instrument provided for in article 65 or 67 may be revoked at any time before it
        takes effect. ”

        This includes a notification to withdraw. The UK is a signatory but I believe France and the EU as a body is not. Whether T May wants to revoke the Article 50 notice or not it’s plain she can do so under UK law. Whether the EU is bound to accept it is another matter until decided this week.

    2. Even if A50 can be unilaterally withdrawn, that act in and of itself won’t be enough, politically, to stop Brexit. It would be too toxic to ignore the 2016 referendum result without any further input from the electorate. If May’s deal doesn’t get through Parliament (which it most likely won’t) the path opens up to an extension of A50 (Sweden’s PM was yesterday reported as saying “..were the deal to be rejected in the UK parliament, the European Union’s 27 remaining members were agreed that there should be ‘some form of extension of the process’…”
      This extension would would need to have a reasonable prospect to breaking the deadlock, and the most likely way of this happening would, in my view, be a second referendum. *If* the result of that is to remain, that is the point at which unilateral revocation of A50 could/would take place.

      1. I will try again. This time without the typos:
        Even if A50 can be unilaterally withdrawn, that act in and of itself won’t be enough, politically, to stop Brexit. It would be too toxic to ignore the 2016 referendum result without any further input from the electorate. If May’s deal doesn’t get through Parliament (which it most likely won’t) the path opens up to an extension of A50 (Sweden’s PM was yesterday reported as saying “..were the deal to be rejected in the UK parliament, the European Union’s 27 remaining members were agreed that there should be ‘some form of extension of the process’…”
        This extension would need to have a reasonable prospect of breaking the deadlock, and the most likely way of this happening would, in my view, be a second referendum. *If* the result of that is to remain, that is the point at which unilateral revocation of A50 could/would take place.

    3. I really, really can´t see the ECJ confirming a unilateral right for the UL to revoke article 50.
      I mean that would allow every member state with a grudge to start article 50 proceedings and then after 1 year and 11 months declare “ha, ha. April fools! We revoke the notification.”
      And 6 months later they invoke article 50 again.
      That would basically paralyze the EU.

      The only thing I can see is what the EU already said. As long as the 2 years aren´t over the UK can ask to revoke the notification. And if all EU member states agree the UK can stay in the EU.

      1. The case will be decided on the basis of the law, however, not what is just or politically expedient. That may prove to be either fortunate or unfortunate, depending on one’s viewpoint.

  2. Thanks for the blog. You are right of course in everything that you say. The deal could yet pass because we have had 2 years of uncertainty and anything that feels like a plan will win at support and possibly enough support. Trying was May’s only option. But what frustrates me most as a remainer – and why I feel cheated – is because leave had the luxury of not having to define what form it would take before now. It is still a coalition rather than a force with a united vision. Remain lost because the various branches of leave united because it a binary choice. This may be water under the bridge for many, but for many remainers it is not. We feel that each of the realistic outcomes should be set against the status quo of remain. Where we find ourselves now is: this deal vs remain or no deal vs remain (or this deal vs no deal). As the EU at political level have pointed out often is that the UK would be welcome back. So yes, there is fog but it has been there since the very beginning. Now it is beginning to clear a bit. The difficulty for remain, is that to chart a route to a second referendum, initially we have to go down the path of ‘no deal’. Not a time for the faint-hearted.

    1. “what frustrates me most as a remainer – and why I feel cheated – is because leave had the luxury of not having to define what form it would take before now. It is still a coalition rather than a force with a united vision”

      I disagree.

      Firstly, it was made quite clear by Remain that leaving meant leaving the whole lot – CU, SM, ECJ, and that is pretty much the only clear consistent interpretation of “Do you want to Leave the EU?”

      Secondly, having left, the thing that united pretty much every Leaver was the return of full sovereignty to the UK parliament. Having done that, it doesn’t make sense to mandate what set of policies that sovereign policy should implement at that referendum. It was, after all, a referendum on EU membership not a General election. So the nation gets to decide what form of leave it is through its elected representatives and via a general election at some future date, and at future dates thereafter.

      1. Hang on, is your position that leave voters did so the basis that they believed the remain claim that leaving meant leaving the CU, SM etc (but disbeliving the economic forecasts from remain) and disbelieved the leave claim that “nobody is talking about leaving the single market” (but presumably believing leave’s economic forecasts)? That seems quite a stretch!

        1. That’s Dipper for you. Like most Brexiters he quotes the Remain side whenever it suits him, although every single Brexit leader said ‘ignore everything Remain says – it’s Project Fear’.

  3. “If the EU is sincere when it says it does not want to re-open negotiations…”

    It’s kinda important to realize that when the EU says that, it’s specifically referring to a Gove-like re-opening of negotiations to gain more for the UK at the EU’s expense.

    “…then the current deal will be the only deal on offer, regardless of whether UK seeks extra time for a referendum or otherwise.”

    You quite blithely skip over the Norway+ option, which would be eagerly accepted by the EU, and which oddly has some domestic momentum in the UK. (See the DUP’s recent statements.)

    To be generous, you are broadly correct that the TM deal, Remain, and Norway+ are the choices.

    However, you are either nescient of the politics, or simply scaremongering, in insisting that Parliament rejecting the TM on first pass would incur a serious risk of no deal. After the TM deal is rejected, choices will be forced, and the TM deal will continue to be one of the options.

    For someone who goes on about wanting Parliament to be in charge, you sure do seem to want Parliament to be cowed by TM’s transparent scare tactics.

    1. How would you get the Norway+ option onto the table for discussion with the EU?

      Who is going to support it who would not support Mrs May’s agreed deal?

      What in fact is the advantage of the Norway+ option over the agreed deal?

      1. Freedom of movement. Meaning that EU nationals in the UK would no longer have to apply for SS, and the same for Brits in the EU27. It’s a MASSIVE issue for the five million of us in this situation.

      2. “How would you get the Norway+ option onto the table for discussion with the EU?”

        If Parliament rejects the TM deal, they will still have to assemble a majority for something.

        Even No Deal would need a majority in Parliament, as otherwise, a majority would assemble for something else with the deadline looming.

        There are different mechanical ways they could get to Norway+. One possibility would be returning to the voters with a TM deal vs. Norway+ plebiscite. Another possibility would be Parliament claiming Norway+ fulfills the referendum.

        “Who is going to support it who would not support Mrs May’s agreed deal?”

        The coalition would likely be lots of Labour, the DUP, SNP, some remainer Tories, and even some Brexit Tories.

        As I say, if there isn’t a majority for TM’s deal, then Parliament will find a majority for something, which will be Norway+, Remain, or another referendum proposing one of those. And that Parliamentary majority will contain strange bedfellows.

    2. You ignore the possibility that Norway and the other signatories may reject the UK’s application to be part of Efta/EEA, which we leave once we leave the EU. I cannot see them loving the UK being a temporary member.

    3. Labour manifesto for the GE in 2017:
      “Freedom of Movement will end when the UK leaves the European Union.”
      –> No Freedom of Movement, no Norway option.

      Now Labour seems to be somewhat “undefined” when it comes to Brexit. But if they take their manifesto seriously they couldn´t support the Norway option. Add alleged ultra-Brexiters in the Conservative party and the Norway option wouldn´t have a majority.

      Unless you proclaim that the Norway option is only a temporary “back-stop”. Giving the UK time to negotiate a “better” free trade deal.
      However in that case Norway has already announced that they would veto the UK joining EEA / EFTA.
      Why spend valuable time negotiating with the UK to join EEA / EFTA if the UK wants to leave a few years later?

      1. I am aware that Norway+ is not compatible with either party’s manifesto. No deal is also not compatible with either party’s manifesto.

        If the TM deal is rejected by Parliament, they will have to come up with a majority for something. Norway+ currently looks as if it may have the easiest time getting to a majority. Even TM loyalists are bandying it around at this point.

        As to “temporary” and “Norway vetoes”, the rumblings from journalists covering Brussels are that it would have to be permanent to get the EU and Norway to go along, and that Norway would highly likely give way. (Even if Norway wouldn’t budge, there would be clumsy ways to create a separate EFTA for one, and the EU would play along if that was the only way to reach that objective.)

  4. Is there no way we can whet an appetite for the option of “abandoning the Article 50 process, and for the UK and EU to negotiate the withdrawal and relationship agreement together”? I’m personally in favour of remaining in the EU as we are now, but if we are to leave, or contemplate leaving even, then it must be done with due consideration and process, not rushed through in an arbitrary and insufficient timeframe. Primum non nocere, etc.

    1. How is that supposed to work?
      Article 50 is part of the Lisbon Treaty. You ignore it and it takes just one member country to go to the ECJ for a treaty violation…..
      If you have an association of 27 (28) countries you need clearly defined rules. You just can´t rely on muddling through.

      And if you open up the Lisbon treaty to delete / amend article 50 then you might open a can of worms. (Is that the right term?) Other member countries might then decide to push for other treaty changes too. As in, we only agree to a change in article 50 if we also get a change in article xyz.
      And in that case any change / amendment will take years.

      Besides didn´t the EU insist on first the withdrawal agreement and only then talks about a new relationship? Because they feared that otherwise the UK might use concessions on the Irish border, payments to the EU and rights of EU citizens as a way to get a better trade deal?
      Not to mention that legally until March 2019 the UK is still a member of the EU. I´m not sure if the EU legally can negotiate a free trade deal with the UK while the UK si still a member state?

  5. To remain would be the end of democracy (or the charade of it) and would be an even bigger insult than those thrown by both sides.

    I would probably join in storming Parliament myself!

    Project Fear continues unabated…

    1. So what do you think should happen? Crash out? Or renegotiate?

      If crash out, then conversation over – there has been more than enough commentary to discredit that as a realistic way forward.

      If renegotiate how would you set about doing this? Force TM to resign? Who could credibly replace her, and what would they do that is different from what she has done?

    2. Millions were disenfranchised in the referendum, despite being UK citizens and/or UK taxpayers. There are currently at least 10 legal cases that have been carried out or are pending, regarding the possible illegality of the referendum. The Electoral Commission found all major Leave campaign groups in breach of the law; Johnson is being sued for misconduct in public office; Farage and Banks are persons of interest in the Mueller investigation due to their Russian contacts; and we Brits in the EU27 are bringing a case on the grounds that our disenfranchisement renders the vote unrepresentative. If this was a foreign country’s election, we’d be screaming that the process should come to a halt until it’s established that the vote was, in fact, lawful at all.

    3. Referendums do not constitute democracy and in fact should not be allowed to undermine it, ie the representative democracy which we have evolved; we ain’t Athens or early Iceland. Certainly this is so when the referendum cuts across party lines, yet it is the parties which must make some sort of sense of it. This is in short the Brexit beast. If used at all, the referendum should only confirm some policy on which the elected MPs are agree but on which they feel they required further support

    4. Get a grip!
      Sorry.

      As a German I´m actually in favour of referendums. I would like to see more of them in Germany. As long as they´re done right.

      A referendum is basically a question that only allows a “yes” or “no” answer. For that to work both options need to be clearly defined. How else can I research / discuss / judge both options?
      (Not mentioned is that we need balanced reporting by the media.)

      The basic problem with the British Brexit referendum was that the election commission somehow allowed the official Leave campaign “Vote Leave” to campaign despite “Vote Leave” having no definition of what “leave” would mean. And of course much less a plan on how to reach that undefined goal.

      That was quite nice for “Vote Leave”.
      They could essentially promise everything to everyone.
      More de-regulation and more globalization to the ERG followers.
      “Getting rid of red tape” and a “bonfire of regulations”.
      “Less globalization” to the left-behind former industrialized towns.
      And socialism in one country to the Lexiters.
      Less paperwork for British farmers.
      Without mentioning that without the paperwork they couldn´t export their farm products to the EU (or any other countries).
      The UK would still have frictionless access to the EU single market but without any obligations to the EU.
      “They (the EU) need us more than we need them.”

      How can you criticize a campaign that is totally undefined?

      Should I even mention the delusions or lies of some Brexit campaigners?
      David Davies: Let´s negotiate free trade deal with Germany and France after voting for Brexit?
      A former minister for Europe in the Major government in the 1990s should have known that this is impossible. That really sounds like a case of “if reality doesn´t support my dreams, I´ll ignore reality.”
      Penny Mordaunt: “The UK can´t veto Turkey joining the EU.”
      A blatant lie!
      For some reason British newspapers were a lot more polite?
      Dominic Raab: “I hadn´t quite understood the full extent on how much the UK relies on the Dover-Calais crossing.”
      The Dover port authorities have raised the alarm since 2017? Was he deaf? Add 2 minutes to border controls and you get 17 miles of traffic jams.

      Quite a few of the Brexit campaigners had been EU-skeptics since the 1990s. Which means they had more than 2 decades to decide on their vision of a UK outside the EU. And they had 2 decades to design at least a rough outline on how to reach their goal.

      And your Brexit heroes actually produced nothing!
      Some, like Farage, ran away directly after the referendum.
      Others, like Davies and Johnson, ran away when things got complicated during the negotiations with the EU.
      And others, like Rees-Mogg, stayed on the sidelines for the whole time. Never accepting any responsibility. at all

  6. “If the EU is sincere when it says it does not want to re-open negotiations…”

    I will add one additional note: I don’t think it’s the most likely path, but should a general election occur, and should Labour take power, I believe the EU would indeed be willing to reopen negotiations, as radically different UK red lines would be in place.

    But again, I think that unlikely, and think the politics indicates that the TM deal, Remain, or Norway+ is where this is headed after the TM deal is initially voted down.

  7. I sadly share your perspective, we appear to be stumbling in the dark without a clear strategy, just a siren call to leave. Not a good approach.

  8. My understanding is that the EU is sincere in not wanting to re-open negotiations on the basis of HMG’s red lines. There are at least two ways in which the red lines could change. (1) A new government could come to power following a GE. (2) Absent a GE, a new government could come to power as a result of a fracturing of the existing party structure (such fractures were relatively common pre-1945).

    If a new government stated wished to stay in the SM and/or CU, accept ECJ jurisdiction etc. then I find it inconceivable the EU would not reopen negotiation – and if necessary make the political decision to extend A50 supported by the necessary legislation in the EU and UK.

    Conceivably the EU might have also an appetite to tweak the current agreement towards a Canada-style FTA with a regulatory and customs border in the Irish sea, which they would probably favour over no-deal.

  9. Perhaps there is a fourth way. After the Westminster Parliament rejects the Withdrawal Agreement as a whole, some key elements are agreed as side-deals (including the financial aspect). The Political Declaration is dead, as is any prospect of a comprehensive agreement on a future relationship. This might be legally and administratively deliverable, though it would constitute a much worse outcome for the UK than the WA. Politically, all the UK actors could deny responsibility and blame someone else.

  10. We are indeed in chaos because Parliament gave the EU Leave decision, a very complex problem to the people. We now do not know whether popular acclaim or Parliament is sovereign, even though we are still in the EU, that many claimed was be sovereign in all things.

    Chaos, is traditionally solved by praying which may lead to some consensus given enough time and astral guidance, or doing nothing until something turns up, or allowing robber barons imposing local solutions. If and when we leave the EU by the default path, we will live in chaos, one lot of total chaos is much like another to non-mathematicians. We used to look to leaders for solutions but we haven’t any at the moment. My preference is for Parliament to do something now and prove we still have a representative democracy, that should be the minimum we get from enduring this chaos.

  11. Petey says:
    “… Parliament rejecting the TM on first pass would incur a serious risk of no deal. After the TM deal is rejected, choices will be forced, and the TM deal will continue to be one of the options.”

    We are frequently told that rerunning the referendum would be a travesty of democracy (even though the question would be very different second time around). In that case, why is continuing with the TM deal as an option after it has been rejected once by Parliament not also a travesty of democracy?

  12. Three thoughts or comments.

    First of all, Norway+CU is nothing that could kick in on Brexit day. There’s too few honest information how the UK could get there. For example that it – ta-da! – includes negotiations not just with EU27 but e.g. Norway. EAA treaties would need to be changed as well as institutions adopted. Long story short: A transition phase is in any case necessary. As well as an all-weather backstop.

    Secondly, contrary to popular belief the European Parliament does *not* seem to have a veto. All MEPs can do is rejecting the deal and thereby raising the bar for the required majority in the Council: from qualified majority (55% of the 27 remaining Member States) to super-qualified majority (72% of EU27). In either case (55% or 72% of EU27 MS, respectively) they need to represent 65% of the EU27 population.

    Thirdly, it’s a very sad state of affairs that even at this very late stage the political debate in the UK is dominated by so much dishonesty, cake- and unicorn-ism, regardless of party affiliation and Leave or Remain camp.

    Unless that changes, I believe that “no deal” is the most likely outcome.

  13. I have said this so many already on various platforms, and I will say it again now in the hope of getting a serious reply. Surely it just takes a certain number of Tory MPs who support Remain to take the plunge, assuming all else has failed, and plot (yes, plot) with Labour and the anti-Brexit small parties to force the Government into postponing Brexit day and instead set up a second referendum. This assumes that the May-EU deal is rejected by Parliament, as seems almost inevitable given that the DUP oppose it

  14. A lot of discussion on my Leaver chat about that backstop. The transition is not great, a kind of EU–, but if it is just a transition than that can be lived with. The political declaration was roughly acceptable. So the issue comes down to whether we can trigger the backstop and how. Or more specifically, whether the EU or member states can prevent us leaving for ever.

    The people best placed to evaluate this are the MPs in Parliament. So IMHO they need to learn the process of running a large independent sovereign state, rather than what now appears to have been happening of simply implementing policies decided somewhere else.

    The one way of not resolving this is by having a referendum. Quite how 40 million voters are meant to decide on a 500 plus page legal document is beyond me. Given I would never in my own life sign a 500 page legal document as my feeling would always be that the key clause was buried in a footnote on page 490 and all the other pages were there to make sure I didn’t see it, I would have to vote to reject.

  15. Another tour de force of clarity and brevity.

    May I respectfully advance the point (made by another, far brighter than me) that ‘no deal’ does not exist – if the draft treaty is not approved and no other step is taken instead, the government would rapidly accede to this treaty under Royal Prerogative immediately after exit in order to forestall chaos.

    In this sense, ‘no deal’ merely a maguffin that exists only as a spur to any other course of action (eg Ref2).

    And the learned author is, then, incorrect in describing ‘no deal’as the default setting: the default is the draft treaty because that is what will occur of there is no intervening action.

  16. Has not the time come to go back to basics, or rather to the referendum? The vote was 51.9% to 48.1% To me that seems pretty close to 50/50. Certainly not an overwhelming victory for Leave. 37% of the electorate voted to leave and 34% to remain. Which meant that about 29% didn’t vote. So the “Will of the people” was the will of 37% of the electorate.

    In the Scottish Independence referendum there was a threshold of 40%. Had there been one in the EU referendum, it would have failed.

    The referendum was deemed by Parliament to be consultative.
    And those who trot out “I respect the referendum” are respecting something which has been pretty soundly discredited, with the fines and worse.

    Why are the right wing of the Conservative Party and part of the Labour Party insisting on this huge constitutional change?
    Scotland and Northern Ireland – and Gibraltar – voted remain. Why no consideration of them. Many cities voted remain…

    Most well informed independent minds agree that the exceptional deal we have in the European Union is better than anything we will get however long we try to renegotiate. Donald Tusk frequently says we should/can stay. Why are we not back-tracking and saying: Sorry we’ve caused all this trouble, please can we stay?

  17. I completely agree with your analysis. Pretty rare for me to agree, (completely) with anybody over Brexit, but I can see no other feasible or plausible options

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