2018 12 – Brexit Options

The Brexit Conundrum

by Pete Whitelegg

This article was written before the debate and vote on the Brexit ‘deal’ on 11 December.

Inevitably the first weekend after the publication of the draft Brexit agreement has seen all and sundry heading to the TV and radio stations exclaiming their support, opposition or general bemusement at the complexity of the whole situation. Positions are articulated, but one thing remains crystal clear, no one believes that the current deal on the table will pass a vote in the House of Commons. What is also abundantly clear is that no one has an answer as to how we negotiate our way out of this impasse. Labour are pinning their hopes on forcing the government into a general election. And if that doesn’t succeed then, maybe, just maybe, a second referendum.

The maths doesn’t look good for May. A government with a majority of only 10 supplied essentially by the DUP who are in open revolt, coupled with a significant number of Tory backbenchers pledged to vote against their own party. But the fickle sands of party allegiance are shifting. May is I believe a fan of strictly come dancing. Evidently, she has learnt the dark art of political choreography. So far, for the most part, at least within the confines of domestic politics, she has played a weak hand deftly.

Then there is the Rees-Mogg faction associated with the European Research Group(ERG). When the draft agreement was published they appeared, for a moment, to be in the driving seat. But unlike May, they played a strong hand very badly. They in no uncertain terms want rid of May and then out of the EU with no agreement in place. Out of the EU out of the clutches of the EU. As yet the ERG has not explained to anyone just how this will work. What will be the effects on the UK economy? What will happen with travel arrangements? What will happen to the City? What documentation will business need to trade with our biggest market?  A dereliction of duty on the grandest of scales. It’s possible their bluff has been called . The fact that they have not been able to mount the challenge to May they expected has dealt a mortal blow to their agenda.

A no deal exit from the European union is at the moment looking somewhat less likely but not beyond the realms of possibility. It is not an option to be taken lightly. The result of this stance could see the UK become the Gaza strip of Europe.  Hemmed in on all sides, unable to travel freely to our nearest neighbours and our trade in goods and services governed by foreign states. But at least we will have the freedom to choose, choose what I don’t know. So far all we have heard from this rag tag bunch of neo-liberal fundamentalists is that we will fall back on WTO rules of economic engagement with the rest of the world, whatever that means.

Regardless of which party, or party factions, or combinations of all, manages to cobble together the numbers to come to some sort of conclusion on the issues that confront them, at some point, they are going to have to come to an agreement with the European Union about our future relationship.

The EU, it has to be said, has been remarkably consistent in their negotiating stance. What matters to the EU is the integrity of the internal market and all the rules and regulations that govern its existence. May attempted, and failed, disastrously, to split the resolve of the EU on that very issue. A weak hand played badly.

The EU has made its position very clear: this is the best deal you are going to get, at least under the current circumstances. There may be some tiny tweaks, clarifications, adjustments, but in general, this is the deal. In substance it is not going to change. So that leaves all parties and interested groups, both inside and outside parliament, that oppose Brexit, with a serious problem.

One of the propositions currently gaining traction both inside and outside the Labour party is the prospect of another referendum. Official Labour party policy is that this would only be considered if there was no prospect of triggering a general election. As yet, the only serious question mark over this strategy concerns the question or questions to be asked. But there is a much larger issue at the heart of this strategy.

A new  referendum only confers a decision within the confines of domestic politics. It has no effect on Europe.  For it to have any effect on the process of leaving the Union it would require a means or process of notification. There is no such process as things currently stand. Article 50 is, at present, a one-way street.

At the moment there is a case going before the European Court of Justice. Central to this case is whether a notification under article 50 to withdraw from the European Union is revocable, and if it is, under what conditions. Article 50 was incorporated into the Lisbon treaty in 2007, essentially as a sop to the British. Until the Treaty of Lisbon there was no formal right to withdraw from the European Union. However, article 50 says nothing on a state’s right to withdraw a notification to leave.

So what would happen if there was a second referendum and we voted against Brexit? Can the UK unilaterally revoke its notification under article 50? Well, according to the commission the answer is no. The commissions website says:

“It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification”.

According to this, any attempt to revoke our notification to leave would require a negotiated settlement with the other 27-member states. Indeed, this position has been reiterated by Michel Barnier and several other senior European politicians. So regardless of whether we endorse the deal currently on offer or, due to another referendum, revoke article 50, our only way out of the quagmire is to negotiate with the European Union. In effect, in the event of another vote we would be re-negotiating our entry into the Union.

Those arguing for an end to Brexit have so far been silent on this issue. The peoples’ vote lobby appear to be of the opinion that if we reject Brexit altogether we will return to the arrangements immediately prior to the vote in 2016. This is not the case.  It will require a negotiated settlement.

That begs the question as to what this negotiation will include. It seems highly unlikely, in the event of the UK withdrawing its notification to withdraw from the Union, we will be welcomed back without preconditions. Issues such as the UK rebate, opt outs from EU legislation, would all seem to be in the mix. Some EU politicians have gone further and suggested that we would have to implement in full, over time, the Copenhagen criteria. The Copenhagen criteria are the rules adopted in 1993 setting out the criteria for eligibility to join the European Union. As we were a member we would clearly pass most of the eligibility tests. With the possibility of one; membership of the Euro. Would any party in the UK advocate acceptance of the Euro and ditch sterling. This seems unlikely.

So those advocating a “peoples vote” need to come clean. Any re-accession to the EU would inevitably require a deal to be done with the EU. Will we do away with our opt outs from EU legislation such as the working time directive? Will we renegotiate our rebates? Those proposing such an option have been silent on this issue. They can’t be silent for much longer.

If we are fast approaching the end game and Labour does not support the current deal and a general election, at least at the moment, seems a distant option, then those advocating a “peoples vote” will have to put before the British people exactly what our relationship with the EU will be. Anything other than this will just perpetuate the deep divisions already existent within our society.