Why the draft withdrawal agreement may be the only responsible option

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.

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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.

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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On the same day, the European Communities Act 1972 is also set to be repealed by automatic operation of law.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.

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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.

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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.

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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.

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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.

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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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Comments are pre-moderated and will not be published unless they are polite or interesting/informative (and preferably both).

42 thoughts on “Why the draft withdrawal agreement may be the only responsible option”

  1. I wholly reject the assertion that No Deal is the inevitable outcome of voting against the WA. It is not without political difficulty but there are other routes available which would satisfy constitutional requirements.

  2. Many good points (and the presentation of the note-form Outline of the Political Declaration was just as bad; I gather a tidied up version will be released only on Tuesday).

    But, if the Deal is indeed the only responsible option in present circumstances, is this not solely because of Theresa May’s self-imposed red lines that are not the necessary corollaries of the referendum result they are often painted to be and that, indeed, came as a surprise to the other side? She, or another, can still change those redlines.

  3. At end of para 4 “No Brexit is not serious politics.” should read either “No Deal Brexit is not serious politics” or “No Deal is not serious politics”

  4. We had a referendum, and we got a result to a binary question. But what did it represent in terms of voters’ expectations? From the discussions I have had with both Leavers and Remainers there was no clear single understanding of what Leave meant. Remain was slightly the clearer proposition since it represented the status quo but even there confusion reigned as to what the EU did, and did not do, and their powers as far as UK domestic life was concerned. What became clear was that there were a wide variety of expected outcomes from leaving the EU; more state intervention, less state intervention; more manufacturing or less manufacturing (Minford); fewer immigrants or immigration unchanged, and so on. The nearest I got to a single underlying shared commitment was to giving that lot in Parliament – “our corrupt leaders” a kick. There was certainly no overarching shared vision as to what Leave meant. If that is the case it would be useful if you explained in greater detail why exactly you consider a second vote on the deal, as it is now presented, with Remain as an option, is not constitutionally or morally defensible. Personally I don’t like referendums. Too close to buying a dog and barking yourself. I would much prefer that MP’s showed some ownership of the issue rather than of their careers. But in the absence of that and given the woeful performance of Britain’s shrivelled political elite (Luce), what other course of action do we have?

    1. This is absolutely true, and I keep saying it but Mr Green doesn’t seem to acknowledge the point. The vast array of (often conflicting) opinions and intentions covered by the leave vote are by far the main reason there is no mandate. Nothing to do with “irregularities and unlawful behaviour”. The narrow win by leave is essentially meaningless.

      If the ballot options are “paint the wall red” vs “do something else” and “something else” wins, then what’s that a mandate for? Not only do you not know whether to paint it a different colour – which? – or leave it bare, but the whole premise is false because all the people who don’t like red got to group together.

      I totally confident that there has never been an overall majority for a self-harming no-deal brexit, considering the narrowness of the referendum outcome. But since those options weren’t split out on the ballot paper we’ll never know. So it’s unbelievable to me that we are even considering the possibility of willingly accepting a no-deal brexit now.

      One point I would make regarding this comment is regarding the remain vote. Remain voters may not all have been experts on the EU. Opinions there may have differed too, but the intention about what should happen was consistent across the board, and that’s the important thing. At least you know what to do with a remain vote.

      That’s why it wasn’t a fair ballot, and why Cameron and the 544 MPs who passed the referendum bill will be judged harshly by history.

  5. It is fair to say that most MPs feel bound to implement the result of the referendum. But at some point, in a democracy, it must be legitimate for the voting public to have another say and the opportunity to come to a different conclusion. You have argued, I think, that that opportunity should come only after the mandate provided by the referendum has been discharged, and should not take the form of another referendum. However, as to the first point, if enough MPs judge that circumstances have changed so much since the referendum result that the opportunity to reconsider should come earlier, I see nothing wrong or illegitimate in that. As to the second point, I happen to agree that we should not decide big and difficult issues by way of referendum; and recent experience shows how badly things can go as a result. However, given that we’ve had one, I think that in all the circumstances only another one would carry the necessary legitimacy – whatever the result. But no more after that, please.

  6. With regards to the Referendum mandate, I must challenge your assertion “That, however, does not change the political reality that the government, the opposition and the majority of MPs are committed to fulfilling that mandate”.

    I agree with the view that despite there being no legal obligation on the Government to implement Brexit, there was a political obligation.

    However, I absolutely challenge the idea this should be interpreted as “Brexit at any cost, or consequence”, support for which your comment appears to imply, and which the Government appears to believe?

    The Government’s ‘Duty of Care’ is to 65m people, not just 17m and if this means saving the electorate from themselves, for the greater good, then so be it.

    I was not against the result per se, but I’ve been horrified by the manner in which it’s been misrepresented and mismanaged. This ‘Brexit or die’, misinterpretation (resulting from Tory Party infighting), is a prime example.

    Any responsible Government must have in mind a point at which it says “Stop. This is too damaging. We tried, but we cannot convert the principle of Leaving the EU into a reality which will not result in material harm to the people of the UK”.

    There is no indication this Government considers this to be a part of their duty.

    1. “Any responsible Government must have in mind a point at which it says “Stop. This is too damaging.”

      It’s a reasonable point. But they did set the ball rolling on this. So ultimately it is down to them.

      1. “They” being?

        For me, ‘Brexit at any cost’, which is the path TM doggedly follows, has no justification, particularly when it’s entirely based upon a majority which represented just 1.9% of the population and a vote based upon speculation of what leaving the EU might look like?
        What kind of madness is it to base the level of upheaval Brexit does, on so slim a mandate. “Respecting the result”, has more than one interpretation.

        I’m not against the principle of leaving. I am against the trashing of the country in the process.

  7. I’ve stopped being amazed about the sheer ignorance, arrogance and delusion of Brexiteers about real life. The epitome of British exceptionalism.

    If the UK crashes out with No Deal, it’ll only take less than a month for them to be forced to return to the negotiation table and will be in an even weaker position than now. Much more humiliating than accepting this WA text which I have to say from a EU27 perspective is way too generous, and I expect my government and MEPs to vote against.

    Furthermore, the Brexit debate in Britain has convinced me that the EU will be better of without the UK. As Alexander Clarkson has so eloquently put it, even many remainers are firmly in the “strudel-ism” camp: a thick filling, comprised of British exceptionalism, is wrapped in a thin crust of pro-EU attitude.

    Happy to welcome back independent Scotland (who’ve been treated with so much contempt by Westminster generally) into the EU, likewise a united Ireland and also England/Wales as soon as a new referendum gets a meaningful majority for “yes” to re-join on Copenhagen terms.
    However, while I think my lifespan is long enough to see the first two happening, I think I’ll long be dead before the latter comes to pass (if it ever happens).

    1. CORRECTION

      I wrote earlier that I’ve stopped being amazed about the sheer ignorance, arrogance and delusion of Brexiteers about real life.

      Well, I have to walk back on this. The news that Andrea Leadsom et al convene a Brexiteer cabinet working group that will unilaterally re-write the WA texts, proves they go all in for hubris and denial (https://twitter.com/TimRoss_1/status/1063436108703432704).
      The only question I have is if the geniuses’ outcome – an innovative recipe for cherry cake – will win The Great British Bake Off.

      They truly live in Have-Your-Cake&Eat-It Land.

  8. “Jack Of Kent” and his alter ego David Allan Greene have both (?) frequently tried to inject a dose of realism into the dreams of diehard Remainers like myself. But for all the cogency of his arguments I am irresistibly reminded of the thesis (true or not) of J P Taylor that the First World War was finally triggered by railway timetables.

    It is important to remember, even for a lifelong bureaucrat like myself, and also for expert lawyers, that rules and procedures (like railway timetables) are there for the benefit of our communities. When the result of following legal procedures is undeniably and inevitably disaster, laws can be changed. The EU has become notorious in some circles for ‘stopping the clock’ to get a budget or other important deal through. Parliament, and the Institutions can – if their members really believe it necessary – take the necessary measures to allow the Brexit express to run into a siding so that time can be taken for a much needed rethink.

    Please could those of you with the necessary expertise on how this can be done, please start thinking about how to operate the necessary switches.

  9. Perhaps the best of Mr Green’s summaries thus far – I look forward to reading the forthcoming book.

    I appreciate the perspective that it is, in fact, the Withdrawal Agreement rather than ‘no deal’ that is the default option. The latter is, on many accounts, probably a chimera yet is, nevertheless, an essential prod to progress.

    But what is ‘progress’?

    Mr Green’s preference is for the Agreement, yet I respectfully suggest that without substantial amendment thereto – which he, and I, agree is unlikely – it is unlikely to pass into law. Given the above, then, logically, something else will instead come to pass.

    A ‘Final Say’ referendum – with all its attendant uncertainties – is the most likely outcome.

    After all, are there not several precedents?

  10. As one of those campaigning for a referendum with the opportunity to make an informed decision to accept the deal negotiated with the EU or to remain in the EU, I hope Mrs May survives any challenges within her party. I believe there is a real prospect of the deal failing to get support in parliament and that might lead to a further referendum. There are many other scenarios of course. If Brexit were to happen the deal on the table today is it. There is no time reason or incentive for the EU to enter further negotiations at the eleventh hour. So my hope would be to withdraw the article 50 notification and to start the process of a referendum based on the informed consent from the electorate for a specific and defined Brexit roadmap. Of course Grexit was about leaving the Euro not the EU. Tsiperas got a result he realised would not be in the Greek interest and ignored it. It was probably the right thing to do.

  11. Agree with most, but not fair to say that there was *no* executive summary: the Government published an “explainer” alongside the draft agreement, which does provide a summary. See link in name.

    They also published one on the NI backstop protocol.

    They could have done that better. They could even have published that as the frontpiece of the draft agreement, with the actual text as an appendix, but it’s not right to say it didn’t exist.

  12. “No Brexit is not serious politics” Decisions taken on the basis of an advisory referendum with a flawed franchise, no overall threshold, no lock on unanimity of the four UK nations, and which was subject to foreign interference and unlawful funding is not serious politics either. If the current deal were to go ahead it would only create still greater constitutional, political and economic problems.
    We have to get at least an extension to Art 50 to allow either an election or a (third) referendum.

  13. Well, this is dreadful. The situation, not the post.

    We have had decades of dishonesty and dissembling from politicians on the EU and its control over the UK, and we now appear to be in a position where we have no influence and no ability to act independently. For clarity, that is not something the referendum has created, it is what the referendum has revealed.

    Take the issue of critical life-saving medicines e.g. insulin, which means we are reliant on the EU to keep our patients alive and hence must yield to whatever they dictate. I would have thought that pretty much the first requirement and expectation of any government is that they preserve the security and independence of the nation. So to now say that their mismanagement of the issue of supply of critical drugs means diabetics can be held hostage by foreign powers to impose their will on us is, surely, a statement of complete failure to do the most basic task. Yet this issue is paraded as though it is something that no government can be expected to control, not something which should lead to mass resignations. Furthermore, this issue is a mutual one; people in Europe are dependent on UK producers. I suspect that the number of people in the EU who are arguing that the EU should accede to the UK’s demands because of the possibility of interruption of supply of vital medicines can be counted on the fingers of one hand of a man who has hands with no fingers. The UK authorities seem to start with an assumption of weakness and then look to see what we have to concede to pacify the opposition, and we know, from history, that what we concede is fishing grounds, money, jobs, manufacturing industry.

    This government can agree whatever it wants. If they try to dump this on the population with a referendum (seriously, what kind of administration asks the people to decide on a legal agreement running to over 500 pages), I will vote No Deal. Then it is back to Parliament to do whatever they see is correct. I’m not going to let them off the hook for their own failure.

    Finally, it was abundantly clear from the moment the referendum bill was passed by a majority of 6:1 that a Leave result was possible, that any ensuing negotiation would be difficult, so walking away with nothing was a likely outcome. If that was not possible then for politicians to implement a referendum when they thought it could cause significant political damage to the country is simply jaw-dropping irresponsibility and stupidity.

    Hang on there’s more. The crux of the current dispute is the Good Friday Agreement which binds North and South Ireland together. It seems to have been forgotten, not least by the Irish Taoiseach, that the agreement was entered into as a result of decades of murders, bombings, and assassinations, including sitting MPs, and concluded in a trade of power and early release of over 400 terrorists. It was not entered into freely, but under direct threat of violence. To use this agreement to enforce European rule on the UK is effectively to condone terrorism as a valid political force.

    If MP’s decide to back the deal, that is up to them. What happens next is also up to them. I cannot, sitting here now, forecast how the various legal clauses will ultimately be interpreted or how the various strands of international law play into this. I suspect our esteemed blogger, who is surely amongst the most qualified of people in this area, will not find that task easy either. Our political class needs to find some backbone and some diplomatic ability pretty quickly to start delivering for the people or else the consequences could be extreme.

    1. @Dipper

      Your claim “Take the issue of critical life-saving medicines e.g. insulin, which means we are reliant on the EU to keep our patients alive and hence must yield to whatever they dictate. ” is entirely false. I respectfully but strongly suggest you acquaint yourself with how the world, including supply chains, work.

      Note that the use of CAPITALS in the following text are for emphasis in an effort to make it more digestable.

      EVERY pharma company in the EU will HAPPILY supply the UK ASAP with whatever medicines is ordered.

      The problem is to DELIVER goods to the UK. There will be bottle necks for a couple of reasons which are due to the UK, not the EU27.

      Note that the following is a very simplified explanation; real life is much more complex.

      Contrary to Dominic Raab, I’m sure you’ve noted for a long time that GB is an island. Note that I wrote GB, not UK, to make it simple and exclude the NI/RoI border. You will have also noted that GB has a limited number of entry points for people and goods – ports, airports, the tunnel.

      LIMITED NUMBER of entry points is key to understand.

      Frictionless trade as you know it today means that no TARIFFS are applied when a good crosses the border.
      It also means that no REGULATORY CHECKS are applied to that good (bar a limited number of so-called SPS checks on animals and plants and related products, to prevent widespread outbreaks of animal and plant diseases).

      Lorries carrying goods roll on and off. No stops.

      But once the UK is a third country, there WILL be friction.

      Because UK GOVERNMENT stated it WILL apply customs.
      It has also stated it WILL apply regulatory, though in the beginning not as many and thoroughly as it deems necessary.

      Both – customs and regulatory checks – require the following:
      Sufficient and qualified personnel, physical infrastructure, operational IT systems and much more.

      HMG admitted it won’t have ANYTHING of that sufficiently available and/or operational on Brexit day.

      Just two examples: About a dozen IT systems are needed but only one will be fully operational on Brexit day. Only a fraction of customs agents will have been hired. (The Netherlands have already hired more TODAY than the UK hopes to have on BREXIT day.)

      Of course it’s possible for HMG to apply no tariffs. But WTO rules require you to not discriminate against countries. If you don’t apply tariffs to products coming from the EU, you’re not allowed to apply tariffs to said products coming from any other country participating in WTO.
      And it’s possible to waive regulatory checks. But that opens the door for fraud and risks the safety of patients and consumers.

      As a non-self-sufficient country, the UK is heavily reliant on the influx of goods. This won’t change any time soon and is in many cases impossible.

      Taking back control means exercising control. And the UK is nowhere near ready to excercise this control.

      TL;DR: Please refrain from blaming the EU27 for inadequent planning by your HMG. Many thanks. :)

      1. well I;’m confused by your reply as it simply makes my point, which was that the UK government was responsible for preparing for the no-deal possibility which was a clearly likely outcome of its own actions. I haven’t blamed the EU for the lack of the UK government’s preparations anywhere in the post.

        1. Disclaimer: As above, CAPITALS = emphasis, not yelling.
          ————————————————————————————-
          Well, then I’m confused too because you wrote “Take the issue of critical life-saving medicines e.g. insulin, which means we are reliant on the EU to keep our patients alive and hence must yield to whatever they dictate. ”

          Who is “they” if not the EU27? HMG?

          Because as I’ve tried to explain, the EU27 doesn’t dictate ANYTHING when it comes to the flow of medicines FROM the EU27 TO the UK.

          HMG would not make sense to me as it’s not dictatorship if in case of a No Deal scenario tariffs are applied and efforts undertaken to protect the British public’s health. It’s sensible. Although, as we have established, HMG foolishly didn’t plan for accordingly. Which, OTOH, couldn’t have been mastered in such a short time anyway but the situation wouldn’t be as critical as it could turn out to be.

          So I’m curious now who you had in mind when you wrote “… whatever THEY dictate.”

          Cheers.

          1. The argument about insulin imports making us reliant on the EU is being made in the UK, not by the EU. Hancock allegedly said in cabinet that people could die in the event of a hard Brexit. To the best of my knowledge no EU political has made this threat. All I’m doing is pointing out that having launched a referendum nearly three years ago, and having our current situation as a clear likely outcome, to then say that in the intervening three years you have effectively done nothing to prepare for it is breathtakingly incompetent at best. Alternatively it is a deliberate attempt to deceive the people about what government is doing in order to overturn a referendum result.

    2. @ Dipper,

      Although I disagree with the suggestion that there was such a “threat of violence” that the UK signed the Good Friday Agreement under duress, nevertheless, there would be a certain symmetry to that given that as part of the negotiation of the Anglo Irish Treaty and the creation of Northern Ireland in 1921, David Lloyd George declared that either the UK’s terms (on the carve out of Northern Ireland) were accepted or else there would be “terrible and immediate war”.
      At least it seems however that we can agree that without threats of violence, we would not be where we currently are.

  14. “…the UK seeks an extension of the Article 50 period, or even revokes the notification…”
    I’m a bit puzzled with this distinction between the “seeks” which is clearly allowed in article 50 and the “revokes” which is not.
    Do you think the CJEU is going to rule on that direction?

  15. Perhaps the day’s most interesting fact was that HMG is going to the Supreme Court in an attempt to prevent the question of the revokability of A50 going before the ECJ this month. The big question is why? Surely if changing our mind is within the power of HMG (as it surely must be) the “people” have a right to know.
    Also may shifted tack after Brussels justifying an extension to the transitional period as being necessary to “avoid the danger” of a hard Brexit. It follows then that HMG will avert this most negative of outcomes even if the withdrawal deal is voted down. Equally May’s refusal to accept a People’s Vote was always couched with the explanation that such a move would strengthen the resolve of the EU to agree a hard deal – the deal is now agreed so this constraint falls.
    Lastly, May will fallfrom power before the next election; would she really want to be remembered as the PM that oversaw a disasterous hard Brexit that cost jobs, prosperity and even lives (perhaps) when alternatives were available to her?

    1. “Perhaps the day’s most interesting fact was that HMG is going to the Supreme Court in an attempt to prevent the question of the revokability of A50 going before the ECJ this month.”

      The last Hurraab?

      Sorry. I’ll get me coat…

  16. The Draft Agreement shows remarkable forbearance and some generosity by the EU 27: I am fairly confident that MEPs and heads of state will sign off on it.

    Or would sign off on it, if they are ever asked to: there is some risk of an opportunistic blocking vote – Gibraltar springs to mind – or even a veto, but the greater risks to an orderly exit aren’t ‘over there’.

    They are ‘over here’, and there is no shortage of material in the Draft Agreement that would be unpalatable to moderately-sane Brexiteers; and the headbanger faction will reject any deal, no matter what it offers.

    So we’re left with little prospect of it getting through the Commons; and it is certain, in a polity flooded and flushed along in a torrent of unchallenged lies from every media channel, that public antipathy to the agreement will be everwhelming.

    Just in case you still believe that I’m an optimist, consider the prospect of Andrea Leadsom leading a challenge to the Withdrawal Agreement.

    Try not to laugh too loudly. A glance across the Atlantic is an alarming lesson in how damaging and dangerous it is to make someone so dismally stupid your head of state.

    Worse, consider what a loose cabal of malign and underhanded men could do with a suggestible and energetic idiot to ‘front’ a government set up to rival the looting of the former Soviet satellites by oligarchs and gangsters.

    1. The key would appear to be the escape clause. It is, I believe, unheard of for a large nation such as ours to simply hand over control to other nations in such a way. The crucial figure would seem to be the Attorney General, and I believe if he says this is acceptable then the deal will pass.

      I would note in passing that the nature of the negotiations and deal illustrates many of the points that Leavers and Eurosceptics made about the EU and pro-EU folks continually denied, namely that the EU controls just about every aspect of UK political life.

  17. What happens if Article 50 can be legally revoked (upcoming ECJ case), and is done so? Does UK government have to pass repeal of Withdrawal Act and pass another European communities Act?

  18. “And why do they think EU27 will shift their position?”

    That is the relevant question, and I think you miss the obvious answer. The EU would be genuinely happy to have the UK remain, or adopt a Norway+ deal. They would be doing backflips. The current deal is better than any alternative deal they’d make with TM, but it’s not what they want.

    So if Parliament rejects the deal, then will come a moment of truth for the British political system in finding a way to either discharge the mandate via a popular vote, or express the mandate though Norway+.

    And if you are operating under the illusion that timing would be a disqualifying issue for the EU, refer back to what would make the EU happy, and what the EU wants.

    (Obviously, the EU will not renegotiate for Gove-ism, but that’s not why any sensible person is advocating for voting down the deal in Parliament.)

    1. I was under the impression that there will be no re-negotation, what’s on the table is the final offer from the EU. It’s take it or leave it.

      1. You are under that impression because you are listening to David, rather than listen to what various high-level EU officials have been quite clearly saying about what would be possible if the UK’s ‘red lines’ were to shift.

  19. This is the best deal in town. At the end of the transition period we regain control of immigration from the EU and we stop paying into it, even if we enter the backstop arrangement. These were two of the major themes of the Leave campaign. If we enter the backstop we may be in a permanent customs union with the EU. Well there are worse things – such as a no-deal Brexit, and a reversal of the decision to exit the EU – and I don’t recall much being made of our freedom to strike bold new trade deals outside the EU when we exited.

  20. just to drone on about “No Deal not an option”. It has been about two and a half years since the referendum. That should have been ample time to prepare for no deal, and Theresa May repeatedly said she was doing just that. So to get to this point and say No Deal is not an option means either there is no actual way we can exit the EU, in which case why did they hold the referendum, or else the government has deliberately lied to us and deliberately made no No Deal preparations so they can overturn the result of the referendum. How is any of this behaviour remotely acceptable in a large democracy?

  21. The GFA and The Customs Union. The GFA contains this in strand three “All decisions will be by agreement between both Governments. The Governments will make determined efforts to resolve disagreements between them. There will be no derogation from the sovereignty of either Government.” and similar in strand 2.

    So, if there’s a rule change in The Custom’s Union, then it can only be introduced on the island of Ireland by agreement of the Northern Irish Assembly and the British Irish council? Doesn’t this give the UK/NI a veto over CU in ROI?

    I’m no lawyer, but isn’t that a reasonable interpretation?

  22. “A No Deal Brexit is not serious politics.”

    but if No deal is not serious politics, then you are left in negotiation at the mercy of the EU, i.e. the EU dictates the terms of your departure …

    … which is likely to be very poor …

    … in which case Leaving isn’t really a serious option …

    … in which case the referendum wasn’t a real choice, and hence not serious politics.

    Seriously, there is a straight line from the referendum to here and No Deal. So why aren’t you having a go at MPs who voted to hold a referendum which offered a choice that cannot be implemented?

  23. Well I guess that I don’t qualify as a sensible person … I do advocate voting down the WA because I see it as the only route to reversing the referendum through a second referendum. I find the whole process of the UK leaving the EU to be very badly handled from the start. It is perfectly reasonable and perfectly democratic that the electorate should confirm their decision after a period of reflection and where it has become clearer what leaving means. The leave strategists took the conscious decision to not define Brexit before the event. Now we know more about what it means in practice, people should be allowed their say.

    I appreciate well that voting down the WA is a high risk strategy and the fact about the automatic operation of law. However, I am quite certain that in the event of the WA being voted down, neither Parliament nor the PM would allow a No Deal exit to actually happen. Almost certainly, this would lead to an extension and despite the blather about the EU not agreeing to it, I am also certain that the EU would agree to an extension – just as it will agree to the extension of the transition period. Why? If nothing else, because it is in its interests.

    Some may see this as reckless, but to be it is logical game theory in practice, played in a situation where none of the camps (of which there are about four or five) have a majority. In short, I believe we have to get to a point where a second referendum becomes inevitable. Voting down the WA is just another scene in a five Act play.

  24. I’ve got the solution!

    We need a “best endeavours” clause, and for this agreement to be under English law. Then both parties can use the courts if needed to discover an agreeable settlement. European law is too rigid and does not allow an agreement to be reached given the lack of trust between the parties

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