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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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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What is the scope of the Brexit mandate? And when will it be discharged?

10th April 2018

There are many Remainers who dispute that there is any “mandate” for Brexit.

The referendum was advisory, they contend, and in any case there was only a small majority.  They will also point to (denied) allegations of serious irregularities about the Leave campaign.  And, including the non-voters, the majority of the population did not vote for Brexit.

They perhaps do have a point, but that is not the point of this post.

This post accepts there was indeed a mandate.

The questions posed here are (1) what is the scope of that mandate and, once its scope is determined, (2) when will that mandate be discharged?

Mandates

Before we can answer those questions, however, we need to be clear as to what a mandate is, and is not.

In general and political terms: a mandate is an instruction: a thing which is mandatory, a thing you are mandated to do.

In UK politics, the notion is that such a mandate usually comes from a political party having won a general election on a published manifesto.

The party then has a mandate to implement the promises in the manifesto.

This sort of mandate is not strong: manifesto promises can be disregarded, and even reversed.  For example, the poll tax was in the 1987 Conservative manifesto, and was reversed in 1990.

General election mandates are thereby quite weak stuff.  (The only practical use is that this sort of mandate means the House of Lords will not delay or block measures set out in a manifesto of the a party that wins a majority.)

Mandates from referendums (correct plural…) are different.  Even when the result is advisory (that is, there is no direct legal or constitutional consequence of the result), the mandate has a certain political force unlike a general election result.

There was a dedicated referendum on a specific question.  The answer cannot be shrugged off as easily as an unwanted promise in a broad manifesto.

But the problem is that with mandates from referendums, there is no natural expiry date.  A mandate from a general election lasts only until the next general election.

A mandate from a referendum, however, may not go stale.  Unless there is a further referendum, there is no obvious way the mandate can come to an end, other than being discharged.  Even a general election – which would be on a range of issues and policies – would not mean a referendum mandate comes to an end.

So unless it is somehow reversed, a referendum mandate needs to be discharged: what has been instructed needs to be carried out.

The mandate for Brexit

The mandate for Brexit flows from the referendum.

The referendum question was whether the UK should remain in, or leave, the EU.

On 29 March 2019, by automatic operation of law, the UK will leave the EU – unless something currently unforeseen and exceptional happens.

The UK and EU are negotiating a withdrawal agreement which would mean a “transition” period (in truth a standstill period) until at least 31 December 2020.

The UK will in effect remain in the EU even though technically it is no longer a member.

This transition means that the legal fact of Brexit (29 March 2019) is uncoupled from the practical fact of Brexit (31 December 2020).

In the early days of Brexit, the form of Brexit – hard or soft or whatever – presupposed that the legal fact and practical fact of Brexit would be close in time.

This presupposition made it easy to say that the mandate was for a soft or a hard Brexit – to interpret the referendum result as meaning more than the legal fact.

But now Brexit is to take place at law with there being no certainty as to what happens at the end of the transition period.

This makes it easier to contend that the mandate for Brexit will be discharged on 29 March 2019.  The instruction provided by the referendum result will have been carried out.

What does the discharge of a mandate mean?

When a mandate is discharged, it comes to an end.  The instruction is carried out.

This means that the mandate has no further purchase.  Nothing else need to be done.

Of course, some Leavers will aver that the referendum mandate really meant not only the legal fact of departure on 29 March 2019 but also something else, which should happen at the end of the transition period.  “Brexit plus” in a way.

But the connection between the legal fact and practical fact of Brexit makes such a position more difficult.

And if the mandate is discharged on 29 March 2019, and thereby has no further purchase, then what happens at the end of the transition period is on a clear slate.

My preference would be for an Association Agreement, whereby the UK remains part of the Single Market and Customs Union, even though formally outside EU institutions.  A conversion of the transition agreement into a permanent relation.  (I am not personally fussed if the UK is a formal member of the EU or not.)

Others may want the UK to rejoin as soon as possible.  Some Leavers may want to have more divergence.

Whatever: each of these options can be addressed on their merits, and the transition arrangements mean that the “ring is held”.  What will be missing, because it will be discharged, is a “mandate” which prioritises one option over another.

Why Remainers should think beyond 29 March 2019

Brexit may not happen.  The politics may change, which means the UK does not leave the EU as a legal fact on 29 March 2019.

But if that outcome is unlikely, then the issue becomes what happens at the end of the transition period.

And that debate will be better if the mandate is regarded as having been performed.  Each proposal can be assessed properly.

That is why I think those few Remainers disputing there was ever a true mandate are mistaken, like generals fighting the battles of the last war.

A stronger position for those who want the UK to rejoin the EU, and for those like me who want a close Association Agreement without formal membership, will then not to deny the mandate but to accept it, and then move on.

This is not to say that anyone should “get behind” Brexit.  Don’t do that, kids.  Only people who believe in Brexit should get behind it.

Instead let the Leavers have their mandate, and then move beyond it.

Unless Brexit is somehow stopped before 29 March 2019 the fundamental question becomes what follows the transition period.

And to accept the mandate is over and done with will place contributors in that debate in a stronger position than those who deny it ever existed.

The key is to properly scope and then discharge the Brexit mandate, rather than to deny it ever existed.

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