“…one of the best bloggers in Britain” — Nick Cohen

Welcome to Jack of Kent, the personal website of liberal journalist and lawyer David Allen Green.
 
You can read the Jack of Kent blog here.  My old site is still over at http://jackofkent.blogspot.com/.
 
I write regularly for the New Statesman and The Lawyer websites, and you can also follow me on Twitter and Facebook.
 
I can be contacted at [email protected].

Three visible paths out of the current Brexit fog

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.

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In domestic legislation, the European Communities Act 1972 is also set to be repealed on 29 March 2019.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

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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.

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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).

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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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Why the draft withdrawal agreement may be the only responsible option

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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For email alerts for my posts at Jack of Kent – including for Brexit updates – please submit your email address in the “Subscribe” box on this page.

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Comments are pre-moderated and will not be published unless they are polite or interesting/informative (and preferably both).