ANDREW FARRAN. Brexit: Game Plan upended?

Feb 18, 2019

As the deadline of 29th March approaches what could be the UK Prime Minister’s game plan to get her deal across the line and avoid the chaos and disruption that a crashing out Brexit would entail? She would want to avoid a ‘golden duck’ – and make a comeback from her unprecedented defeat in the Commons on 15th January. A successful exit would be a political triumph even if it would not please all her supporters. Failure however would represent one of the worst ever diplomatic disasters for a British Prime Minister. 

The UK Prime Minister, Theresa May, has been playing a long game over Brexit. Her consistency is amazing, repeating again and again, whether in response to questions in Parliament or after her innumerable visits to Brussels, that to avoid crashing out of the EU there has to be a deal and there is only one deal on the table – her existing Withdrawal Agreement.

While Parliament is clearly against a ‘no deal’ or crash out Brexit with its adverse consequences, it is exceedingly frustrated, having rejected the presently tabled agreement by some 230 votes, and has failed to find a way through the impasse. Party structures and discipline have broken down over this issue, with at least a dozen warring groups, across party lines, contending to get their way – nativist Victorians (otherwise known as the European Research Group), less extreme Leavers and Remainers, Scots (nationalists and conservatives), Irish (nationalists and unionists) and not least the Welsh.

The central issue, as previously explained, concerns a provision in the withdrawal agreement providing for a ‘back stop’ to cover any eventual divergence in the trade and regulatory regimes of their  respective economies. Once activated it would virtually keep the UK, including Northern Ireland, in a quasi-customs union with the EU without a say in how that union would operate – anathema to a UK nationalist.

Called by any other name a customs union in any context does not allow a party to it to conduct and maintain separate trading relations with third countries, whereas a major objective of Brexit was to allow the UK to do just that.

But the EU could not have it any other way if it is to maintain the integrity of its single market. As this is already a treaty commitment the EU is steadfastly refusing to reopen the matter for further negotiation.

Here we come to Mrs May’s game plan. The vote in the House of Commons on 15th January was lost by 230, the worst ever defeat of a government in many decades – a margin that would seem very difficult to retrieve in any subsequent vote. Mrs May’s frequent visits to Brussels and her day by day stalling in the Commons have been about finding a form of words in a legally binding Codicil to the withdrawal agreement that would allow the UK to exit the ‘back stop’ either at any time or after a period of years, unilaterally, without seeking the consent of the EU itself – another seemingly impossible quest.

These dilemmas or insolvables are of the UK’s own making as when Brexit was put to referendum in 2016 the Irish border issues were not raised nor frankly discussed. Discussion at that time was essentially emotive and such ‘trivialities’ were brush over in the UK’s pursuit of winning back its sovereignty and border control.

The Prime Minister knows that she won’t get these accommodations from the EU. Any of the other 27 members could veto them. So she will have to settle for something less, something that a potential majority in the Commons may accept but the hard-line Brexiteers won’t. Hence the accusations that she is running Brexit down to the wire – though there are a number of other wires even before the exit date of 29th March. As these wires are approached the practicalities of effecting Brexit increase and multiply, involving as they do the passage of hundreds of enabling pieces of legislation through both the Lords and the Commons. The Withdrawal Agreement itself requires 21 days notice before enactment but Mrs May has indicated that this might be side-stepped if circumstances warranted.

The point at this stage however is that the hard-line Brexiteers are not troubled about these niceties and technicalities as they would even welcome a crashing out if this were the only way of achieving Brexit. So far Mrs May has refused to remove a no-deal from the table as its position there provides both leverage for pressing the rest of the Commons to accept her deal, with the Codicil, and pressure also on the EU to accept an Article 50 extension as a UK departure on that basis would be damaging and disruptive to EU members as well.

Meanwhile Mrs May will be affording the Commons an opportunity on 27 February or thereabouts – in the event that she doesn’t produce an acceptable agreement – for motions to be put and voted on as to the next steps. In all likelihood what may be acceptable to a cross-party majority (including elements of the Labour Party) will not be acceptable to the hard-line Brexiteers  but they would have been out manoeuvered at that stage. A no-deal outcome would have been taken off the table. Without a deal, and without an extension of time under Article 50, the UK would be out of the EU on 29th March as that would be the law, both in the UK and for the EU.

Because of this, as foreshadowed, the most likely outcome is that Parliament will accept the original Withdrawal Agreement with some cosmetic trimmings; that the withdrawal date of 29th March for the exit will be met; and the two year transitional period therein provided for will have come into effect – giving everyone the opportunity to argue for the sort of formal relationship (including an FTA and other protocols) that the UK and the EU should have in the future (including harmonisation of matters affecting the Irish border).

This item was headed: “Game Plan upended”. Throughout this period Mrs May has played a very evasive but steady game, with no one sure of how she would be playing it to the end. On 12th February one of her leading negotiators was overheard in a Brussels bar to the effect that the plan would be to hold the line until the last minute and then give Parliament the choice of her withdrawal agreement or an indefinite delay of Brexit (perhaps already agreed as a contingency with the EU). Mrs May has discounted this but has been at pains to tell all: “To hold their breath”. It would appear to be good counsel. Whether exposed or not her plan seems pretty much on the rails and not upended; and one might be pretty sure it will play out pretty much as above.

The country is sick and tired of the issue (important as it is), and wants it concluded; as does the wider business community and anyone else with a concern for stable trade relations in Europe and throughout the trading world.

Andrew Farran is a former diplomat, law academic and trade policy adviser, presently in the UK.

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