Certainly, politics is vital; but much more importantly, this is a legal processby Jonathan Lis / November 11, 2017 / Leave a comment
If you were to limit your Brexit exposure to the pronouncements of David Davis, you might be reasonably confident that Brexit was all about canny negotiating technique: how much bargaining might be done, how many concessions might be achieved, how many backroom deals might eventually be agreed. Do not limit your Brexit exposure to the pronouncements of David Davis.
The Brexit Secretary recently speculated about negotiations continuing until the last minute to hammer out a deal in Brussels, and—specifically citing aviation—informed MPs that “whatever happens, we’ll have some sort of basic deal.” The theory goes that, even if the British government and EU27 are unable to negotiate a deal on trade—which is the UK’s prime interest in the talks—they will be able to forge agreement on some of the building blocks of everyday British life, such as functioning air travel.
Such a theory, however, misunderstands the fundamental basis of the Brexit process. Certainly, politics is vital; but much more importantly, this is a legal process. EU officials make clear that everything relating to our withdrawal must come under the umbrella of Article 50—and that means that it must be endorsed by the European Parliament well in advance of Brexit day. There can be no late-night fudges in the final days of March 2019: if the European Parliament has seen no deal and voted on no deal, we end up with no deal. On anything.
So, why would the EU hesitate to bring forward a deal to the European Parliament on just aviation? Now we get into the politics. EU officials insist that Britain must meet its financial commitments. This is not a fine, bill or punishment: it is a demand that Britain accepts the obligations that it has already made, and does not leave the EU with an unmanageable hole in its budget. Should Britain reject this demand, trust will plunge faster than sterling. Shorn of goodwill, the EU27 will be in no mood to commit time and resources to ensuring that our planes continue to fly. Some officials contend that a stand-alone aviation treaty would in any case take up to two years to negotiate and implement.
In short, then, we can forget any ideas of an “orderly” or “partial” no-deal: no deal really does mean no deal. Let us therefore also agree, once and for all, that there is no chance of no deal. When Brexiteers protest the inconceivability of grounded planes, they are correct. Planes will fly, because the British government will reach an agreement with Brussels. For that to happen, the UK will meet all its financial commitments and guarantee further rights for EU citizens. If the government dares to walk away from negotiations or simply allows the clock to time out, the government will fall.
“Theresa May’s latest announcement represents yet another instalment of folly”
If the government does make a sensible financial offer in the coming days, which therefore allows EU heads of government to green-light the next phase of talks in December, then the spectre of imminent crisis will merely be replaced by the ongoing suspension of reality. The government continues to insist that a full agreement can be negotiated in just ten months, leaving just an “implementation phase” of two years. Anyone with even the most basic understanding of the EU knows this to be impossible—and the glacial pace of negotiations over the last five months offers concrete supporting evidence.
Not only will it be impossible to negotiate a comprehensive final deal in ten months, even a transition will be fiercely complex. The EU will offer a “prolonged acquis without membership of the institutions,” which means that Britain will continue to follow the letter of EU law—and new laws—without any role in shaping or voting on them. This status quo transition, however, cannot be a full status quo, as we currently subscribe to numerous EU bodies, and agreements with third countries, that are only open to member states. Europol is just one example. Vital to police cooperation in key fields such as counter-terrorism, Britain must negotiate an entirely new relationship with it, on top of its dozens of other negotiations, before October 2018. The alternative—allowing Britain to continue full participation as a non-member—would, again, involve the law: specifically, the EU would need to re-shape Europol’s framework, and then ratify it. Brussels does not fast-track this kind of legal process.
There are legal as well as political escape routes from this torturous process. Most legal experts agree that Article 50 can be revoked and John Kerr, the man who drafted it, has said as much. Politically, this would require the EU27 to consent, but they are extremely unlikely to force us out. Key figures such as Donald Tusk and Emmanuel Macron, as well as senior German ministers, have declared that “no Brexit” is a viable outcome from the talks; it is hard to see which of the other member states would dissent.
The only viable option in the short-term is not to revoke Article 50 but extend it. The law is uncontested: Article 50 permits such a move if all member states consent to it. EU officials have suggested that they would. From their perspective, it avoids a cliff-edge, guarantees continuity in Ireland and also contributions to the EU budget. Extension moreover makes it easier for Britain to change its mind and simply stay in the EU, rather than having to re-apply after withdrawing. Regardless of long-term political aims, transition is a monumental distraction for both sides: the many months it will take to negotiate it are months that will not be spent discussing the far more important final deal.
The UK government sometimes appears to use the law only to tie its own hands. Theresa May’s latest announcement, that the Withdrawal Bill will specify an exit date, represents yet another instalment of folly. The one political advantage of omitting a firm exit date in the bill’s first draft was the prime minister’s leverage to extend, or even revoke Article 50, at short notice and without the need for parliamentary blood-letting. Now she seeks to bind herself even more firmly to an undeliverable goal, in the forlorn hope that she might defy the laws of gravity and deliver it.
The incompetence of the British government continues to mystify officials in Brussels. Senior figures in the EU suspect that ministers do not understand either the politics of Brexit, or the laws. We may only hope that they understand the need for basic economic survival, and ultimately act to ensure it.