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.

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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.

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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.)

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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.

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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.

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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.

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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.

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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.

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 “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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Thinking about the Jeremy Thorpe trial

26th June 2018

Well, of course, Jeremy Thorpe was guilty.

That, at least, is the view of all reasonable and sensible people who have heard of Thorpe and of that 1979 trial, which has now been dramatised by the BBC.

(“A very English scandal” is wonderful television and was adapted from an excellent book.)

And it is certainly the view of anyone who has seen Peter Cook’s brutal take on the dreadful and biased summing up by the judge, a summing-up which is beyond doubt justified as being notorious.

A summing-up which brought the law and justice system into disrepute more than a thousand disciplinary cases before the Bar Council.

But here is a mental experiment.

Imagine a perfectly fair and objective judge, summing up the evidence as it was at the end of that trial.  Would the jury’s verdict necessarily have been different?

The evidence of Peter Bessell was crucial: but serious doubt had been cast on its (or his) reliability, and a financial interest in a conviction had been demonstrated.

And event the evidence of Norman Scott and Andrew Newton, even taken it their highest, were not enough by themselves to join the dots of the conspiracy charge.

And even if the evidence of Bessell had been accepted in respect of the conspiracy, there perhaps still needed to be evidence adduced from Thorpe and other defendants to join those same dots.

But only one defendant gave evidence, and that evidence did not go to conspiracy to murder, only to threaten violence.

For the charge to be made out, at least beyond reasonable doubt, there needed to be explanations and information from Thorpe and the other two defendants.

And, as is well known, they all elected not to give evidence.

Without that evidence, and given the problems with Bessell’s evidence, and even taking the evidence of Scott and Newton at their highest, was there enough for any jury to convict on the charges?

Perhaps the judge’s ludicrous and shameful summing-up has provided a cover for a more difficult notion: that the jury did not have enough evidence before them to convict for conspiracy to murder.

We now are aware that two jurors stated afterwards that there was agreement that there was a conspiracy to intimidate Scott (see here), but that charge was (for no reason, or for no good reason) not put to the jury.

We are now also aware from what was said afterwards by David Holmes, one of the other defendants, and also further statements by Bessell, that there was information which could have led to a guilty verdict on the incitement and/or conspiracy charge.  But that information was not evidence before the jury.

And we can never know what evidence Thorpe would himself would have given had he gone into the witness box (not “take the stand” as the TV show put it: we are not Americans).

It appears, perhaps with hindsight, that either the jury did not have the right charged before them or that a conspiracy charge was brought which made sense only if the defendants all gave evidence.

But the jury was left with a conspiracy to murder charge (and an incitement to murder charge) which at the end of the trial was not made out on the evidence before them, regardless of the summing-up.

For what it is worth, on all the information now available to a historian, and not to the jury, it is difficult to avoid concluding that there was a conspiracy to murder Scott, involving at least a majority of the defendants: there is no other plausible explanation for what happened on that evening when Rinka died and Scott did not.

And had Holmes given evidence, it is plain Thorpe would have been convicted on the incitement to murder charge.

So, it was clever (if that is the right word) for Thorpe to elect to not give evidence. had he done, it may well be that no judge’s summing-up would have saved him.

But by electing not to give evidence, Thorpe was not able to put forward his own version of events.  So he avoided a conviction, but at a political and public cost.  What worked in Court did not work out of Court.

There were many problems with the Thorpe trial, not just an idiotic judge and a woeful summing-up.  That was an extra, and when it is taken away, serious problems still remain.  Why was there no lesser charge of conspiracy?  Why did the Crown not foresee the problems with Bessell’s newspaper deal?  Why was the Crown not prepared for three of the defendants not give evidence?

And had Thorpe been acquitted with no judge for Cook and others (and us) to mock?

Well, imagine that scandal.

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Why there should be a political party realignment after Brexit – an argument

25th June 2018

Until fairly recently there was a natural political home for those in the UK who sincerely believed in certain things.

If you believed in the supremacy of parliament, and traditional constitutional thinking generally, there was a political home.

If you believed in the union with Northern Ireland and with Scotland, there was a political home.

And if you believed in UK membership of the European Union, or even just of the Single Market, there was a political home.

That home was the political party which had its origins in the opposition to constitutional changes of 1828 to 1832, and had since then had promoted the importance of Parliament and a balanced constitution; the political party which had united with the Northern Irish unionists and defended the union with Scotland in the twentieth century; and the political party which had taken the UK into the (old) EEC in 1973 and had shaped the Single Market in the 1980s.

That party was, of course, the Conservative and Unionist Party.

Then Brexit happened.

And now there are those, who call themselves Conservatives, who want to believe parliament less important than prime ministerial discretion and the “will of the people”; who would rather have Brexit than the union with Northern Ireland and Scotland; and who want to reverse the European policy of both Ted Heath and Margaret Thatcher.

There is nothing wrong in any of this – parties and polices change over time, and that is a healthy quality in a democracy.

But one would be hard-pressed to find many lines of continuity, at least in terms of high principle – between the pre-Brexit Conservatives and the current government.

If it were not for the entrenched party formation caused by the UK electoral and party system, there would now perhaps be a realignment of British parties such as what happened after the Corn law Repeal of 1846, the Irish Home Rule crisis of 1885-86, and the electoral rise of the Labour Party after 1906.

If we were starting a party system from scratch, few would propose the current party divides.

More sensible would be a “Hard Leave” (or Leave) party and a “Soft Leave” (or Remain) party, just as the “Tories” and “Whigs” emerged as political groupings in the 1680s.

And then party politics would perhaps be become meaningful again.

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Where are we with Brexit?

 

24th June 2018

Here are five certainties about Brexit – though there are people who even doubt or dispute one or more of these.

One certainty is that on 29 March 2017 the UK notified the EU of its intention to leave the EU – though some say there was never a constitutionally valid “decision” to be notified.

A second certainty is that, unless something happens to change it, the UK will leave the EU on 29 March 2019, by automatic operation of law.  The UK will cease to be part to, or bound by, the EU treaties.

A third certainty is that the UK will not be ready to leave the EU on that date, unless there are transition arrangements in place – though some believe the UK is up for such a “hard Brexit”.

A fourth certainty is that the EU wants the transition arrangements to be part of a withdrawal agreement, and that they maintain there cannot be, as a matter of law, transition arrangements without a withdrawal agreement.

And a fifth certainty, which no one can deny, is there is not yet a signed withdrawal agreement.

So, it must follow that there must be a withdrawal agreement signed before 29 March 2019 – unless the date of Brexit day is shifted or cancelled.

So given these five certainties, what are the range of possible foreseeable outcomes, as of now? What do you think?

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That’s Not My Brexit!

19th April 2018

 

That’s not my Brexit…

…the anti-migrant rhetoric is too harsh.

That’s not my Brexit…

…the Irish border issue is too perplexing.

That’s not my Brexit…

…the trade barriers are too scary.

That’s not my Brexit…

…the promised Free Trade Agreements are all too far away.

That’s my Brexit!

That one there.

The one which cannot actually happen.

 

Hat-tip to How Apt for the mock-up.

Apologies to Usborne for the parody.

 

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David Davis and the Row of the Summer, Mark 2

13th April 2018

A day or so ago the news seemed dramatic: David Davis had “won a battle”.

The substance of the article was that Davis was, in effect, setting up “Row of the Summer Mark 2”.

You will remember that last year Davis announced that the sequencing of the Brexit negotiations were going to be the “row of the summer”.

As it happened, the UK surrendered on the sequencing point on the first day of the negotiations – and it was not even midsummer’s day.

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And now Davis is insisting again there will be another dramatic win for UK in negotiations – that the UK will force the EU to open up trade negotiations.

But, in fact, he is again reliant on the EU giving in.

And today?

This one did not even last three days.

 

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The Article 50 Challenge Responds

12th April 2018

A couple of days ago, I set out on here why I believed the “Article 50 challenge” had no merit.

To their credit, the campaign responded politely and constructively, and they have now issued a statement.

Read the statement carefully – as I do not want to misrepresent their position.

I do not think the statement has much force.

In particular, my “delay” point is not properly addressed, and my point about futility – that even if they “win” the problem can be quickly cured – is reluctantly accepted.

And in respect of the central issue, the statement does not deal with my contention that the “decision” was the entirety of the process (primary referendum legislation, vote, litigation to supreme court, further primary litigation, prime ministerial discretion) than any particular element.

But read for yourself their statement, and make your own mind up.

I must add it is a pity that the campaign is not publishing its legal claim so that we can see for ourselves the arguments they putting before the court.  I cannot think of a good reason for this.

The government’s lawyers will know the strengths and weaknesses of the claim – the people who will not know are those who are being invited to support the campaign.

UPDATE

Below in the comments Mark Hardy provides a link to what appears to be the first instance decision for the application in this case.  It is a fairly brutal refusal from an experienced public law judge.  The next stage is an oral hearing to renew the application.  I can see that going the same way.

The link is also to what seems to be the government’s case.

I cannot verify whether these are genuine but I have no reason to believe they are not.

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