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The Brexit endgame

There's still time to do Brexit right. This is how
November 9, 2018

The United Kingdom is facing a departure from the European Union on terms that few if anybody in the UK seems to positively want. Is this bound to happen? Or is it not too late for Brexit to be done another way?

At the time of the referendum no UK politician, campaigner or pundit—and presumably no voter—wanted a departure based on the current draft withdrawal agreement, especially with its Irish backstop arrangements and its long transition period in which the UK will continue to have legal and hefty financial obligations without any representation. Few wanted the UK to leave with no withdrawal agreement at all. But unless something unforeseen happens, the current draft withdrawal agreement or no agreement are the two most likely outcomes.

How this predicament has come about will one day be of interest to historians. Perhaps they will say that these two available forms of Brexit were inevitable, and no better method of departure would ever have been possible. They may conclude there was a direct line from the referendum result, or perhaps from the Article 50 notification, which led to what is currently set to happen on 29th March 2019.

But historians do not always find such neat lines of causation. The historian Conrad Russell set out how the English Civil War was not inevitable. The conflict instead was the result of various contingent events, and non-events—some of them much earlier, some late in the day—any one of which could have led to different consequences.

If we apply the same logic to Brexit it would mean that even now, as 2018 draws to a close, a different approach to the UK’s departure could be adopted which would avoid both a Brexit on unwanted terms and a Brexit on no terms at all. This may be politically unlikely, as senior politicians are invested in the current process. But, legally at least, they are not prisoners of process. An alternative route is, even now, still possible.

Three part predicament

There are three aspects to the current predicament. The first has been the UK’s lack of clarity and resolve about what it actually wants after Brexit. London has, for instance, no real idea about how it wants the crucial Irish border issue addressed. It has proved politically incapable of committing consistently to any model for future relations with the EU, whether that be something resembling Canada’s trade deal, Norway’s status in the single market, or something in between such as Theresa May’s unloved Chequers plan.

This lack of clear thought is the ultimate cause of the UK’s problems. But it is exacerbated by a second aspect: the provisions of Article 50, and how it structures the exit process. A departing member state has the choice of if and when it notifies the EU of its intention to leave, but once that notification is made the advantage swings to the EU. The EU has control over the timetable, and no extension can be made without the EU’s consent. (There is also the other possibility that the process is revoked, either by agreement or unilaterally, though the UK insists that is not an option.) Article 50 enables the EU to insist on its own interests being dealt with fully in the exit agreement, which includes settling the financial obligations before any discussions about the long-term trade relationship.

Once the Article 50 notification was made the UK lost control of Brexit. No departure of a member state under Article 50 is likely to be on terms that suit the departing country. And the two-year time limit in Article 50 means that the departing member state is against the clock. We’re fast ticking down towards a mere 100 days to go until Brexit. In view of the need to ratify any agreement, or to put in place urgent arrangements to minimise the disruption of “no deal,” there is no time for anything else meaningful to be done if the exit date is to be kept.

"Article 50 is an ornament, not an instrument. It was not intended to be used”

Then there is the third aspect, which is the impressive extent of the EU’s use of process so as to protect its interests. Such is its collective prowess at process, which has knocked aside the UK’s antics (they can hardly be called tactics), the story to date could almost be called “Brexit by timetable” from the EU’s perspective. If the withdrawal agreement is signed, the UK will be leaving on terms which, insofar as any exit could do so, will suit the EU.

So how could the situation be improved so that the UK could achieve Brexit on different terms than those offered?

The first thing to tackle is that ticking clock—indeed, even the government admits that Britain needs more time before the exit takes real effect. The recklessness of the decision of the UK to make the notification as early as March 2017 is demonstrated by the ever-lengthening “transition period,” which is in fact a standstill period. But lengthening it makes little sense, when the UK and EU can, as is expressly allowed, instead extend the Article 50 period. By extending this, the UK would retain its voting rights and formal representation for longer, and also avoid much of the need for the elaborate Heath-Robinson legal mechanics of the withdrawal agreement. If London’s concern were strengthening its negotiating hand, this would be an unambiguous improvement.

If possible, the UK government should also abandon Article 50 as the route of exit. The provision was never fit for purpose. It was in the EU treaty as an ornament not an instrument, and it was not intended to be used. It was there in 2009 to placate Europe’s nationalists, so that they could say their nations were not locked in, without an exit door.

And while it is true that both the UK and EU chose Article 50 as the process for effecting Brexit, there is no legal reason why it has to be the sole means of departure. Before Article 50 existed, any departure of a member state would have been done by treaty. Such a departure would still be possible. If, as Timothy Garton Ash argues on p20, there is the makings of a new alliance for institutional reform to achieve a more flexible Europe, a creative British leader could seek to settle the UK’s future relationships with Europe as part of the broader negotiations about that. One approach would be to group together the negotiations for exit with the future arrangement, rather than accept the somewhat artificial distinction forced by Article 50, which so disadvantages the leaver.

The objection to “Brexit by treaty” is that the EU insisted on notification before negotiation. Perhaps so, but the reason for that is that the UK itself had not thought through the mechanics of any departure before calling and staging the referendum. David Cameron threatened (and thereby promised) to trigger Article 50 immediately after a Leave vote, since when everyone has been operating under the assumption there was no alternative than to abide by Article 50 once the result of the vote came through. But it is still not too late to switch to a more balanced and timely approach to negotiating the terms of departure and the future relationship.

Knowing what we want

Of course, the EU will be reluctant to abandon the Article 50 process which, as long as some sort of a withdrawal agreement is ultimately signed, will seem to have served their interest well. But Europe wants an orderly Brexit more than a speedy one. Even if an exit deal is agreed, with the need for makeshift and improvised transitional arrangements a lot of uncertainty is merely delayed. If the UK could only muster a cogent and credible account of what it wanted, and explain how a different process might allow this to be achieved with less of the disruption and uncertainty that will otherwise dog both sides of the Channel, then the EU27 might still be persuaded to listen.

But what if a treaty-based approach is asking too much at this late stage? Even if the EU flatly rejects moving from the Article 50 process, then we come back to an extension of time within its parameters. This is not such a demanding ask. Europe as well as Britain should be able to understand that the negotiations will ultimately be more fruitful if they are allowed to continue until there is agreement on all aspects, with no artificial time limit of two years, a period which has no objective justification.

As for the EU’s mastery of process, there is little that the UK can do other than to learn from it. At each step of the Brexit process the UK has been outplayed. Part of this was self-inflicted. The UK carelessly lost skilled officials like Ivan Rogers.

The prime minister created two “pop-up” departments to deal with Brexit and international trade, when the experience and weight of the Foreign Office and Treasury were required. And at the very time when ministers and officials needed to get ready for negotiations, she closed Whitehall and Westminster for weeks to have a gratuitous (and as it turned out self-harming) general election. If a UK government had sought to deliberately self-sabotage a successful Brexit it would have done very little different.

"At each step of the Brexit process the UK has been outplayed”
The UK ministers tasked with Brexit have preferred bluster and bravado, aimed at the Westminster lobby and their own backbenchers, to the slog and attention to detail required to match their EU27 counterparts. This amateurism does not bode well for the negotiations for any trade deals and international agreements after Brexit. Fortunately, senior officials such as Oliver Robbins have to an extent filled the void created by ministerial incompetence. A generation of UK civil servants has learned the hard way how to deal with the EU as an opponent. With a fresh approach to negotiations, that experience could still be put to good use.

None of the above, however, will be of any avail unless the ultimate problem of what the UK wants from Brexit is solved. There could be more time, more professionalism, and a leisurely negotiation of several years: and still the UK would be rudderless and confused because it had no settled view on the objectives of Brexit.

This is the real reason why historians may one day say there was an inevitability to the UK either leaving based on the current withdrawal agreement or without an agreement. These outcomes have one thing in common: neither required the UK to offer much in the way of proposals. These are the two paths of least resistance for a country incapable of settling on what it wants: one laid by the EU, and the other straight to a cliff edge.

There is now little prospect of the UK government adopting a sustainable and widely supported vision of what will happen after Brexit. But that is a failure of political leadership, not the result of us being caught in some inescapable legal or procedural bind. If, following the referendum result, the UK had not resorted to haste and secrecy, but had instead opened up Brexit to consultation and negotiation, with the full participation of parliament and of the devolved governments as well as of the public, then we might have addressed the root problem—that of not settling or spelling out what Britain wants. Many of the difficulties of Brexit could have been identified and considered as Brexit policy was formulated. The 50-odd so-called sector impact reports could have been useful and detailed, rather than barely existing. Such an “open-source” and collaborative Brexit would have taken the load off an over-stretched civil service.

And once the UK had grasped the extent of the problems and knew what it wanted to achieve from Brexit then either the Article 50 notification could have been sent or general negotiations could have been opened. And if such an overall policy could not be reached then the UK would have been able to revisit the question of whether the time was yet right for Brexit.

Open question

The referendum result does not preclude any of this.  The referendum question was simple: “Should the United Kingdom remain a member of the European Union or leave the European Union?” There is nothing in that question about timing or the method of departure. There is no mention of either the single market or the customs union. The question does not refer to any particular alternative to membership or to what the UK’s future general -relationship should be with the EU. The question refers only to the narrow question of membership.

In the weeks and months after the referendum, the UK government made a sequence of foolish mistakes. It asserted there would be red lines, which were neither viable nor advantageous. This has set the Brexit train running off on the current tracks hurtling towards no deal, with the only branch off being the agreement that the EU wants to give.

If there was, suddenly, a sense of direction and some evidence of a willingness to grasp and grapple with the real problems then it would still be worth slamming on the brakes—or, shifting metaphors, pulling out of the dive—before March 2019. But unless London can get a grip, the dive is likely to continue. For until it knows it is capable of settling what it wants, there will be no alternative. And there are some in UK politics who will settle for that. Because any delay after March 2019 opens up the possibility of what many of those who support Brexit fear more than anything else: the mandate of the June 2016 referendum no longer existing.

The referendum result was a surprise: an unexpected contingent event which, as a future Conrad Russell would put it, then triggered other contingent events and non-events, any number of which could have gone differently. Those supporting Brexit did not believe their luck, and they have single-mindedly forced through the notification which means that, unless anything currently unforeseen happens, the UK leaves the EU by automatic operation of law on 29th March next year.

But the future historian will have to do more than identify the opportunities which were missed and the choices which were not made. She or he needs to understand why so many politicians and officials who could have ensured that the UK take various different approaches did not do so. Explaining the referendum result will be simple compared with explaining why UK ended up departing the EU in March 2019 either on terms which virtually nobody in the UK wanted, or on no terms at all.

Read Timothy Garton Ash: Brexit—an island on the edge