16th November 2018
British politics is currently exciting, with resignations and the prospects of leadership challenges.
But when the excitement passes, there are certain brute facts about Brexit and the draft withdrawal agreement which will still be there.
First, there will still be the mandate of the referendum result.
One may contest that there was a real mandate and point to the irregularities and the unlawful behaviour of certain campaigners.
That, however, does not change the political reality that the government, the opposition and the majority of MPs are committed to fulfilling that mandate.
Second, the UK is set to leave the EU by automatic operation of law on 29 March 2019.
On the same day, the European Communities Act 1972 is also set to be repealed by automatic operation of law.
Both of these legal facts can be averted, of course, by formal action in the 130 or so days left. But until and unless that happens, they are the defaults.
Third, the UK is unprepared for a “No Deal” Brexit, and there is no serious prospect that the UK can become prepared properly in the time available before 29 March 2019.
This is true, regardless of those who in abstract terms seem to be at ease with the prospect.
The reality would be chaos in respect of customs and citizenship, supply chains of food and other necessities, atomic energy and medicine, and so on.
A No Deal Brexit is not serious politics.
And fourth, there is little prospect of the EU27 budging on its offered terms of departure.
Those politicians such as Michael Gove and on the Labour front bench who are raising hopes for a “re-negotiation” need to answer two simple questions.
1. What concrete, specific terms in the draft withdrawal agreement do they want to re-negotiate?
2. And why do they think EU27 will shift their position?
The EU has arrived at its position after two years of guidelines and consultation, and their position will not change lightly – or quickly.
In the cold light of mid-December, when the parliamentary vote is expected to take place, the attitude of MPs may well be different from now.
Yesterday it seemed that the Prime Minister did not have a majority for the draft withdrawal agreement.
In a few weeks, it may be that MPs have to choose between the deal still in the table or risk catastrophe in spring.
Of course, there is the possibility that the UK government suddenly changes gear and will seek an extension of time for a further referendum, as a way out of a political deadlock.
Or the opposition Labour party may succeed in forcing a general election.
Nothing can be ruled out given the current state of British politics.
The public release of the draft withdrawal agreement was not done well.
A 585-page complex legal instrument was just dumped onto the internet by the UK government.
There was no accompanying executive summary. There was not even a table of contents. The back half of the document, comprising the various protocols, were confusingly arranged even to legal professionals.
None of the politicians or pundits who quickly formed opinions on the draft could have read and properly digested the draft.
Those ministers who prepared resignation letters within hours certainly could not have properly considered the document.
Whatever positions were adopted, they were not based directly on the instrument itself.
The draft withdrawal agreement is not, in fact, a bad document from the UK’s perspective.
The EU, for example, has given way on issues in respect of the role of the European Court of Justice.
Even the notorious backstop, which provides what will happen if the UK and EU fail to agree a relationship agreement, is heavily caveated and subject to various protections.
If MPs do vote against, and the EU does not renegotiate then, other things being equal, the best the UK can hope for are a series of emergency bilateral agreements before March on discrete cross-border issues to mitigate against the worst of the impact of No Deal.
That would be unseemly, and there is no guarantee the agreements would work, but that would be to what a responsible, desperate government would have to resort.
Whatever happens in the next few hours, days and weeks, the EU’s offer is likely to still be there.
Of course, if there is a development which means the UK seeks an extension of the Article 50 period, or even revokes the notification, then the ultimatum of this text or No Deal becomes far less urgent.
But if that does not happen, the UK will have no real option to accept, however embarrassing it will be for the MPs who attacked the deal yesterday.
In this way, Brexit will become like Grexit.
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