ANDREW FARRAN. Brexit: Crashing out a real possibility

May 11, 2018

The Brexiters deeply distrust the motives of the Remainers who are seeking ways and means of frustrating the process of withdrawal as exampled by the House of Lordsactions recently requiring that the final draft agreement be submitted to Parliament for its approval and if not approved, that the government be directed to reopen negotiations. While Britain’s final destination is still unclear it might be said that this is no time for Britain and the EU to be still skirmishing over what are essentially domestic arrangements.

From this distance one might well ask how Brexit is progressing given that Britain and the EU are supposed to settle the terms of their agreement by October and effect Britain’s exit by March next year – even allowing for a two-year transition.

Little has changed substantively since writing: The Brexit withdrawal agreement for the transition tabled (in February);

and: Brexit: How to get it done (in March)

All is not well, particularly from Prime Minister May’s point of view whose legislation for the exit keeps getting knocked back by the House of Lords; whose Parliamentary position continues to weaken because of declining public support and the government’s dependence on the minority Ulster Democratic Unionist Party in the face of unresolved difficulties over the future of the Irish land border; and the forced resignation of her Home Secretary, the strong-minded, promising Amber Rudd, over the Windrush scandal – an issue largely of Teresa May’s making from her time at the head of the Home Office.

The impasse is not over technicalities. The Brexit teams deeply distrust the motives of the Remainers who are seeking ways and means of frustrating the process as exampled by the House of Lords’ actions requiring that the final  draft be submitted to Parliament for its approval and if not approved that the government be directed to reopen negotiations with the EU. At another level a popular, cross-party campaign was launched in Camden on 15th April demanding a “People’s Vote” on Brexit. They argue that the 2016 vote was on the principle of Brexit, not on the outcome. Many promises had been made by the Brexiters, such as no cost to the economy, more beneficial trade deals, little disruption to those settled in the other country, and so on, and that few of the promises were likely to be honoured.

However recent polling has indicated that public support for Brexit is still much at the same level as it was in 2016. Those who support a People’s Vote would argue that the people have yet to hear the worst of a British exit, its hidden costs, and the exaggerated claims of what a cluster of fresh free trade agreements with the US, Australia, China, et al, are likely to fetch instead.

What is looming is the possibility that Britain may crash out of the EU. Mrs May had sought to get support for a Brexit that retained a Customs Union to minimise disruption but still left Britain free to legislate separately on the movement of labour, thereby preserving 3 of the 4 freedoms – goods, services and capital – arguing that these three are of mutual benefit. But this has not proven to be acceptable either to the Brexiters or the EU. In such a Customs Union not only would Britain be excluded from participation in decisions over trade levels and regulations, but would be constrained in the making of trade agreements with third parties – the worst of both worlds. A revised customs union proposal recently advanced by the government, a ‘Customs Partnership’, whereby the UK would apply the EU’s own tariffs and rules of origin to all goods arriving in the UK that are intended for the EU. “So when goods – bits of machinery or computers or consignments of food – arrive at UK ports en route to the EU after Brexit, UK customs officials would collect the money due and hand it on to Brussels”, as explained by the BBC. This proposal has been largely ridiculed, even by the Foreign Secretary, though its proponents believe, probably incorrectly, that it would allow Britain to negotiate free trade deals with third  countries.

Obviously Parliament’s role in this, while not yet clear, can easily destabilise if not dislodge the government. Some 60 of Mrs May’s back benchers have virtually sworn to defeat any move for a thin Brexit; the Ulster DUP and the Irish generally will not accept a hard border (no checks or infra-structure) for fear that it would reopen sectarian conflict; and recent local council elections saw the overall Conservative vote set back enough to raise further compounding doubts about the government’s authority.

If it comes to a Parliamentary vote much will turn on whether the process was procedural yet indicative – in effect an instruction to leave the EU without an agreement, in which case Mrs May would probably resign and a new Conservative government formed; or whether a vote was treated as a Confidence vote which would require Conservative dissenters to cross the floor and bring about an election. That may not be straight forward as Britain now has a system of fixed term Parliaments (the 2011 Parliamentary Act). A loss of Confidence vote could have the Queen inviting either another Conservative leader to form a government or if that was impossible, inviting the Labour leader, Mr Corbyn, to do the same. Failing that and/or following a two-third majority vote, fresh elections would be called anyway. And at that stage, in all probability, Britain would crash out of the EU without an agreement!

With global politics hotting up, following the US withdrawal from the Iran nuclear deal, this is no time for Britain and the EU to be skirmishing over what are essentially domestic arrangements. Both have much to lose if they play their cards too close to their noses.

Andrew Farran is a former diplomat, senior law academic and trade policy adviser. Now a woolgrower in semi-retirement.

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