Unicorns all the way - Is May lying to herself?

On Wednesday 25 October, at prime minister's questions, Theresa May fell in behind her Brexit secretary and repeated the deluded mantra that she would achieve a trade deal with the EU to be signed the moment after Brexit. Yet the previous Sunday she was reported to have put off discussions of a trade deal in her cabinet until some time in 2018, after the EU have "stated their terms". As an unidentified minister supposedly told the Sun's Tom Newton-Dunn, "Theresa’s fear is the moment we do, half of us walk out. We just don’t know which half will yet". But the EU won't "state their terms" any more than they already have, since Article 50 is not concerned with trade, and Barnier will only ever be allowed to negotiate under the terms of Article 50.

An hour or so after PMQs Ivan Rogers, the UK's Permanent Representative to the EU until the beginning of this year, told the treasury select committee that May's red lines put us too far out of the EU to get anything more than a DCTA (deep and comprehensive trade agreement) like Canada's. He (and other contributors) also reminded us, though who but the cabinet needs reminding, that the talks May hopes will start after the December EU Council summit are not trade talks.

A few of Rogers' words, from the transcript of the meeting, tell us in no uncertain terms, "I stand by every word of what I said, and I used to say it when I was in Government, and it also what I hear in every capital now and from Brussels and Strasbourg now.  What we are talking about going into the new year are not trade talks; they are talks about the future partnership and the framework for that future partnership, and that is what is specified in Article 50.  Those are not trade talks.  I can understand why the press keeps on talking about them as trade talks.  Obviously they get into the whole structure, ambit and scope of the future relationship, which goes to trade, but the trade talks will only begin after we have left the European Union".

Which of course is the way the EU sees it. Here is paragraph 5 of their negotiating guidelines: "While an agreement on a future relationship between the Union and the United Kingdom as such can only be finalised and concluded once the United Kingdom has become a third country, Article 50 TEU [Treaty on European Union] requires to take account of the framework for its future relationship with the Union in the arrangements for withdrawal. To this end, an overall understanding on the framework for the future relationship should be identified during a second phase of the negotiations under Article 50 TEU. We stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as the European Council decides that sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal".

And as the Guardian reported on Tuesday 24 October, "Barnier said he could envision a short transition period being agreed between the EU and the UK before March 2019 to ease the UK’s exit from the bloc, but it would require the British government accepting the continuation of EU law and the jurisdiction of the European court of justice. A future trade deal, however, would have to be negotiated over “several years” and “will be very different” from the status quo, Barnier told a group of European newspapers".

The whole evidence session can be viewed on the parliamentary website. You will also hear Rogers try to explain that No Deal doesn't actually mean no deal, because the country would collapse without "mini" deals on specific sectors. And Professor Catherine Barnard (Professor of EU Law, University of Cambridge) points out that many of our current arrangements with the EU - the EHIC (European Health Insurance Card) for example - depend on reciprocity, which can't be enforced by a piece of UK law like the EU withdrawal bill.

One of the most stunning pieces of evidence for me, though, is that 80% of Ireland's exports go either to the UK or through the UK by truck. Ireland is our hostage.

What comes next?

As Theresa May appeared at the EU Council in Brussels, with Merkel and Macron possibly conferring in English at this point, and gurning Tim Barrow (UK permanent representative to the EU) and towering Olly Robbins (May's point man at the talks, no longer reporting to David Davis) at their shoulders, rumours began to spread.

Nobody was expecting this week's council to decide that the Article 50 talks had made "sufficient progress" to move on to phase 2 (these terms are discussed below) but people have started talking about December (the next EU Council is on 14-15 December). Merkel was reported to have seen enough progress to hope it would be possible to "take the work forward and then reach the start of the second phase in December", and the Finnish prime minister was similarly hopeful:  "I hope we can decide the next phase in December’s meeting, but today we are not in that position".

On the British side of the Channel media and political voices immediately translated these tentative hopes into definite promises and started speaking of "trade talks in the new year". The problem is that the next stage referred to is not a trade negotiation. Phase 2 of the Article 50 talks, as defined in the European Council (Art. 50) guidelines for Brexit negotiations which define what Michel Barnier is mandated to talk about, is expected to identify an "overall understanding on the framework for the future relationship", and nothing more.

I've tried to construct a representation of this Brexit thing, and Article 50 is only a small but vital part of it. Nothing in the pink section on the right can be achieved until "exit day" (agreements might be signed later the same day or ten years later, but not before). I'll be amending this as I learn more and have errors pointed out, but here's the current attempt (draft 2).

The problem identified above is that British politics and media seem to think there's an arrow from the end of Article 50 phase 2 to UK-EU trade talks which is not the way the EU27 are working at all. Once the framework for a future relationship is agreed, trade talks might start in parallel, but they are not part of the Article 50 process.

Whatever Brexit is, it isn't what the government says

Let's kick off with a few facts:

1. Article 50 of the Treaty on European Union is about leaving the EU.  It's not about trade.
2. Nobody serious expects a trade deal between the UK and the EU to be negotiable within two years.
3. We have less than one year left

Whatever David Davis tells us, each time he and his hundred civil servants travel to Brussels to meet Michel Barnier and his supporting cast, they are talking about the terms on which we leave the EU.

They might eventually move on to the framework for a future relationship, parallel trade talks or some kind of interim or transition or implementation period, but the reason they're there is to agree on the terms of withdrawal.

Any trade deal (and probably an unknown list of other deals in the security, justice and regulatory areas) can only be signed once the UK has become a "third country" - after exit day - and will be negotiated under rules in a different part of the treaty.

There's a time limit on the Article 50 process.  There's no lime limit on trade talks.  Which is just as well if May & co really want a "deep and special" relationship with our "friends and partners".

One of the Leave slogans which is still quoted is that it'll be easy to come out with a trade agreement because we can just "carry on as we are now".  But we don't currently have a trade agreement with the EU.  We have a Treaty on European Union which the government wants nothing to do with.  Any new deal needs writing from scratch.

As we should be reminded more often, nobody in history has ever tried what May & co have taken on, negotiating a less advantageous trade relationship than the existing one.  The government's red lines mean that it cannot be as good.  The only question is how much worse.

So what is our government actually doing?  Pushing a bill through parliament based on the idea that every aspect of our relationship with the EU can either be discarded or copied over into UK law with any necessary changes on the way.  All by a single exit date, which everybody assumes to be March 2019, not least because that's the only thing that's at all certain.  There's nothing in it (yet) about either transition or implementation.

May's careful use of the phrase "implementation period" while everybody else talks about "transition" means there's not even agreement at the least detailed level about what can be delivered by March 2019.  She seems to assume her "about two years" will be spent getting software up to date and helping business to fall in with new, agreed ways of working.  No chance.

Unless the government's real intention is to walk away from the whole thing (and there are persistent rumours to that effect), I can only conclude that the majority of our political class (government and opposition) have deluded themselves in the same way and/or that none of them are telling us the truth.

Here's a prediction which I think is inescapable:  if the end result is No Deal it will drag Ireland down with us, damaging both economies seriously and probably setting the peace process back decades.  And I'm still being told not to talk the country down.

It is not talking the country down to warn against an incoherent and self-harming No Deal, or to argue that a mass delusion seems to be established in that crumbling palace on the Thames.

So when May and Juncker emerge from a Commission dining room and issue a statement to the effect that their talks have been "constructive and friendly" and that it was important to speed things up in "the coming months", my only response is:  what have they been smoking?

Yet another letter about Brexit - to my MP

We have all heard, for months now, the government's assertion that "no Brexit deal is better than a bad deal" but we've heard little serious discussion of what "no deal" might entail.

We're assured that walking out is an essential negotiating tactic, but never how it might apply in this case.  If you walk out and thereby return to the status quo ante, it could certainly be reasonable - nothing lost but time and perhaps a bit of good will - but that's not the situation Mrs May finds herself in.  Triggering Article 50 has started a process which she claims (correctly or not) cannot be reversed, and which can only be paused with the agreement of the other 27.

And then, what exactly is Mrs May ready to walk out of?  The Article 50 process, as well as tending inexorably to a defined end, allows for the production of a "framework for [the withdrawing country's] future relationship with the Union".  This framework might in the end be as much as the recent political agreement between Japan and the EU, perhaps leading to a full trade agreement in a couple of years time, or it might simply be a set of holding principles and arrangements to enter an interim or transition period which is then intended to produce a full trade deal.

Article 50's intended output is an agreement on "arrangements for [the withdrawing country's] withdrawal", which is why there's such emphasis on settling the accounts and establishing the rights of those who are based in a country other than their own.  Yet the only thing most of the media and - it seems - MPs seem to be concerned with is the trade deal or WTO question.

There's a time limit on Article 50 - the famous two years, of which less than one remains before the ratification process would have to start - but trade negotiations can go on as long as it takes for the deal to be signed.  Or abandoned.

There are many other deals which might be required, depending on how completely Mrs May intends to allow us to drift away.  Can we reconstruct a working relationship with Euratom, the REACH chemicals regime, the EMA medical regulator which we have led in while it was based in London?  To say nothing of the dozens of other decisions which must be addressed - on Europol, the European Arrest Warrant, cooperation on security using databases based on EU data protection regulations (which we are currently proposing to implement), but resting on a bed of law overseen by the ECJ.  Who is going to certify that UK aeroplanes are fit to fly?  And what legal and logistical arrangements will we make for planes, people and goods to land somewhere else?

Which of these perhaps dozens of deals is Mrs May telling us we can do without?  All of them?  Just the odd one that's a problem?  Would she countenance walking out of talks with Euratom and staying with the rest, or fall in with Balpa's reminder today that "UK airlines could find they have to stop flying...  And this would impact passengers long before March 2019 because airlines couldn't sell advance tickets and, frankly, would passengers risk buying them?" while kissing a trade deal goodbye?

Lastly, if there is to be no deal in any of these areas, where are the preparations?  Where are the compulsory purchase orders for vehicle handling areas around Dover, the building projects for customs checks along the Irish border, the recruitment and training programmes for border, customs, regulatory, home office and many other staff that would be required?

The books might tell us it's good tactics to show yourself willing to walk away, and to keep your cards close to your chest.  But not if the people on the other side of the table begin to wonder if there's anything written on your cards, and can't believe you'd be stupid enough to engage in the self-harm of "no deal".

I'd like to know what your party managers are briefing you about this - what are the lines to take - but I imagine those really are cards you'll keep close to your chest.  Even more than that, I'd like to know your own feelings about the "no deal" issue.  Can you reassure me that I'm overly concerned, but without the standard "letter from MP" language which won't reassure anyone?