How could this Brexit thing actually happen?

The news sometimes tells us that "we're less than six months away from Brexit", which might still sound like a long time, but there's a lot to be packed into that period. This post attempts to outline the process in the UK, then to fit it in with the way the EU expects to handle it. And finally, what if this finely tuned machine falls apart at some point?

I still think leaving the EU is the wrong thing to do, and that it's being done badly, but hey ho, this is what I think is going on.

It's the law!

The European Union (Withdrawal) Act 2018 has some fiddly rules on how the outcome of Brexit negotiations must be handled (Section 13, pages 14-17 of the PDF version). This part of the bill was fought over for days, between Commons and Lords, in an attempt to craft the famous "meaningful vote". In my estimation May and her whips worked hard to remove most of the "meaning", and as far as possible to keep the process in ministers' hands.

To get the ball rolling, a government minister must present three things to the House of Commons and the House of Lords:

• a statement that agreement has been reached
• a copy of the withdrawal agreement
• a copy of the framework for a future relationship

The next stage is for Parliament to approve the two documents. The Commons has to pass a resolution and the Lords has to debate a motion (the elected house's resolution is more powerful than the Lords' motion, but is still just a Yes/No to the government's proposal, with no consideration of options). Finally another law - a Withdrawal Agreement and Implementation Bill laying out how the withdrawal agreement is to be implemented - must be passed.

If possible, the Commons resolution must be agreed before the EU Parliament votes on approving the withdrawal agreement, which I've heard is a sequence acceptable to the EU27, though there is no such formal requirement in Article 50.

"If push really comes to shove, and they try and push
Chequers through the House of Commons, then I
and my colleagues will vote against it,"

What happens if the Commons doesn't pass this motion, as some of May's loyal followers are still threatening? The government then has 21 days to "make a statement... in writing and published in such manner as the Minister making it considers appropriate". This statement must simply set out how Her Majesty’s Government proposes to proceed after this failure.

Here's one of the contentious points. This statement has to be "considered" by the Commons and the Lords within seven sitting days. The Lords must "take note of it" and the Commons must debate a "motion in neutral terms". This parliamentary language is intended to prevent either house from intruding on the government's plans to proceed. When Dominic Grieve caved in and this language was accepted, there was much debate about whether and how the Commons could intervene nonetheless to prevent a departure with no deal, but nothing is certain at this point.

And what happens if the prime minister decides that no agreement can be reached with the EU? The Act imposes a deadline of 21 January 2019. If, by that time, she concludes that "no agreement in principle can be reached in negotiations under Article 50(2) of the Treaty on European Union," she must make a statement to that effect. The government then has 14 days to produce yet another statement on how it plans to proceed, and a further seven days for the same process of motions which can't be changed, but leave the government to pick up the pieces of its own failure. A similar process, though with slightly different timing, must be followed if by the end of that same day no agreement has actually been reached with the EU (perhaps if it takes the prime minister completely by surprise?).

Any of these statements of failure might in theory lead to a return to the negotiating table or... what?

As far as I can see, the law says nothing about what is to be done if the UK Parliament approves the documents but the EU Parliament doesn't, or the agreement falls at the final hurdle of a vote by the EU Council (without the UK). As we'll see below, either of these developments could occur after the 21 January deadline, though they must be considered unlikely, since the agreement would have been agreed by the Council (with the UK) before going to Westminster, and the EU Parliament will have been kept informed of progress.

The enormous amount of work required if there's no deal is outside the scope of this post (and probably the scope of human consideration).

Is there time?

The formally agreed timetable still assumes that the final withdrawal agreement (and whatever level of framework for the future has been produced) will be considered by the October EU Council summit, but it's fairly generally assumed that it won't be ready by that point, and that a special meeting will be required in November. EU Council president Donald Tusk has told us he's happy to organise it. I've pencilled in 13 November because it's the only date I've heard, but talk around the recent Salzburg meeting was that it would probably be a couple of days later [Update 18 October 2018: the emergency summit has not been scheduled because the October summit (or rather the negotiations leading up to it) have achieved very little.].

Sources: 2018 plenary sessions. 2019 plenary sessions. council meetings

Let's assume, therefore, that a Brexit agreement is available by 19 November and that everybody is still aiming for 29 March as the end date.

How much time would it take the Commons to consider something like a 150-page withdrawal agreement - this is an international treaty document - and a 20-page political statement on the future UK-EU relationship? The latter would not have treaty status, but could be the thing most of our MPs, media and fellow citizens are watching out for. How many committees would demand a period for consideration, to inform the eventual votes? The government would want to allocate as little time as possible, inviting the minimum intervention by elected members, but any MP who wouldn't object to such cavalier behaviour should be ashamed of him- or herself.

Assuming for the moment that the UK Parliament will be at it hammer and tongs when an agreement arrives (in fact, of course, the poor little mites will have to take their usual holidays - a few days off in November, three weeks for Christmas and never working on Fridays) let's look at what will be going on in the EU.

If the EU Parliament does refrain from discussing the agreement before the UK Parliament has finished with it (and can we really imagine that no parliamentary committee will start early, arguing that it's a plenary session which will make the final decision?) we could be well into 2019 before detailed consideration begins. Of course the MEPs have been kept informed of progress in negotiations by frequent updates to party group leaders and other briefings by Barnier (unlike our own MPs, many of whom don't seem to have the faintest idea of what's going on - job done, says May).

A Reuters report tells us how the EU Parliament sees the approaching buffers: "A European Parliament plenary session on 11-14 March 2019 will be the last possible in order to endorse any Brexit deal on time, Polish MEP Danuta Hubner, head of the European parliament's constitutional affairs committee, told fellow MEPs Monday... The parliament's meeting 25-28 March would be too late because the Council also must approve it, she said. The UK is set to leave the EU on 29 March."

And when it's all signed off, Michel Barnier can take a holiday or retire, because that will be his job done. The Commission will then take over in the normal way if there's a trade deal to be negotiated.

If it doesn't work

Customs post at Killeen/Killean Co Amagh, 1960s
via @OldIrelandPics on Twitter

That's all fine if everything goes according to plan, but there's still disagreement (and worse) now among the governing party, mostly about the framework for the future and its possible implications for the Irish border section of the withdrawal agreement. I have my doubts that more than a handful of MPs have given a thought to the other remaining issues discussed in my previous post. I call that irresponsible, but it's all you can expect on this question.

There's also talk of elections and referendums, following months of work by the People's Vote campaign and a Labour conference where Brexit was under the spotlight more than antisemitism for a change. The passage in Jeremy Corbyn's conference speech which offered to support or take over May's negotiations has attracted a lot of attention:

"But let me also reach out to the Prime Minister, who is currently doing the negotiating.
"Brexit is about the future of our country and our vital interests. It is not about leadership squabbles or parliamentary posturing. If you deliver a deal that includes a customs union and no hard border in Ireland, if you protect jobs, people’s rights at work and environmental and consumer standards - then we will support that sensible deal. A deal that would be backed by most of the business world and trade unions too.
"But if you can’t negotiate that deal then you need to make way for a party that can."

Those, including some 150 constituency Labour parties, who worked to ensure that the possibility of a further vote was included in the motion (and will be disappointed that the possibility of a Remain option in that vote wasn't explicitly included) will fear that Corbyn is ready to ignore that option, but a different kind of interest is being shown elsewhere.

Jeremy Corbyn’s #Brexit announcement will be read with interest in EU. Angela Merkel understood to believe #Chequers proposal on common rule book for goods could work if UK joined a customs union @BBCNewsnight

— Nicholas Watt (@nicholaswatt) September 26, 2018

If Corbyn managed to contribute (most of) the Labour vote in the Commons to support (most of) May's MPs to approve "her deal" the timetable above would do, but much of the discussion around the Labour conference was on their demand for a general election, or "campaigning for a public vote" on "the final Brexit deal" if that doesn't work. The only part most media outlets quoted was the paragraph on a referendum, but the motion which was passed on Tuesday was 570 words long and I didn't see anybody pick up the sentence "Conference believes we need a relationship with the EU that guarantees full participation in the Single Market".

An election or referendum might come out of any of the ways the process might fail to achieve an agreement by 21 January or in later chaos (May is determined not to go there, but who knows what the atmosphere might be by then?) and you can't do either of those in a few days.

Last year's snap election took place seven weeks after the announcement, and it couldn't be squeezed much more than that. Of course there's a body of law governing an election, but each referendum needs its own new law. How much backing would there be behind a decision to go that way? How much time would it take to get a bill through and agree a question with the electoral commission?

There would be calls to extend the electorate to include 16-17-year-olds, British expats absent for more than 15 years (as promised by Cameron in 2015) and EU27 citizens; or to restrict it further by removing Commonwealth and Irish citizens from the roll. The electoral commission would request a six month period between enactment and vote, and the commission itself needs a major overhaul with much stronger powers, as shown by the law-breaking during the last referendum campaign. Most of these demands would almost certainly be refused, but even so it would take quite a time.

Whether for an election or a referendum (or indeed a request to buy a little more time for negotiations that are nearly complete) the Article 50 period would have to be extended. Who would make the request? That would depend on the state of chaos at the time, but it would presumably be whoever was prime minister by then. Replacing May would take a couple of months too, unless - say - her government resigned and "another party leader" took over without an election, or this "emergency" forced the Conservative party to bypass the rules even more than it did to select May herself. It would also be necessary to amend the EU Withdrawal Act, which currently defines "exit day" as 29 March.

The current EU27 negotiating directives - the source of Michel Barnier's mandate and the special competence which allows him to produce an agreement which doesn't need ratification by the 30-ish national and regional governments - set a date of "at the latest 30 March 2019 at 00:00 (Brussels  time)" which would presumably have to change too. 

The next elections to the EU Parliament will take place between 23 May and 26 May, so the amount of time by which the Article 50 process could "easily" be extended is pretty limited. There is no plenary session of the parliament planned until July and it would be a new Parliament with at least some new members, so picking the Brexit process up again would be quite a task. There would also be a new commission, with Jean-Claude Juncker's replacement as president newly (indirectly) elected too.

Everybody is currently working on the assumption that the UK will no longer be a member state by May, and there are therefore 73 seats in the Parliament to be distributed among other members. An Irish border question which doesn't have to be dealt with in a withdrawal agreement is how the Republic will deal with their extra two seats. It was announced on Monday that one would go to the Dublin constituency and one to the Southern Constituency, with a couple of counties "moving south" to balance the numbers.

The new Commission president will not be Michel Barnier, we can be sure  of that. By coincidence an announcement from Mr Barnier came out today to the effect that it is his "duty and responsibility to continue the #Brexit negotiations right to the end" and he will therefore not be running for selection as the European People's Party lead campaigner in the elections.

In the event that the Brexit saga ended with a referendum which chose to Remain, and the Article 50 notification was revoked (assuming that is legally possible) we'd never have left and we'd simply remain a member of the EU under our current terms (though with far less good will). But not only would the UK have no MEPs at that point, there wouldn't actually be places in the Parliament to accommodate any new ones. Also, an aspect of the EU (Withdrawal) Act that I only noticed recently is that, though it repeals the European Communities Act 1972 (the fundamental law which recognises EU treaties and law) only on Brexit day, other laws were repealed on the day it was enacted, and one of those was the Act which makes the holding of elections to the EU Parliament legal.

This Brexit thing could continue being a mess far longer than anyone thought.

What's the deal?

The People's Vote campaign wants a "People's Vote on the final Brexit deal". Labour's new composited motion for their conference wants to "put that deal to the public". What "deal" are they talking about?

What "deal" are May, Raab & co negotiating at the moment? There's endless talk of a "Canada deal" or a "Chequers deal" or "no deal" but the only output actually described in Article 50 of the Treaty on European Union is "an agreement... setting out the arrangements for... withdrawal, taking account of the framework for [the withdrawing member state's] future relationship with the Union".

During negotiations that "framework for [a] future relationship" has been elevated to the status of a major document. May and Davis originally proposed to conduct full trade negotiations in parallel with talks on the terms of withdrawal, but Michel Barnier had no mandate to do so. Proper trade negotiations can only be conducted with a third country, and therefore after Brexit itself. Then May called an unnecessary election, lost her majority, and gave up her grand plan on day 1.

Even so, all the talk in politics and the media, in Labour as well as the Tories, is now of trade deals, to the extent that I fully expect that a majority of the population believes that is what we're expecting to see by 29 March 2019.

****

A recent report by the Institute for Government lays out what has been achieved and what has still to be achieved, and one of the main points about the "future framework" is that "there is currently no public statement of what this framework will look like, and how much detail will go into it". Barnier suggests 15-20 pages, as opposed to the withdrawal agreement, whose draft PDF is currently 130.

The IfG's report has a number of helpful charts and tables, of which I'll use just one. I advise you to look at the original to read it properly.

Half the main topics of the withdrawal agreement are considered complete (though EU expats in this country and British expats in the EU27 are not in unanimous agreement with that claim for "citizen's rights"). Then we have two groups of topics on which progress is being made (I'm sure the future of Gibraltar and the military bases on Cyprus will be a doddle) and the big problem of the Irish border (or as Andrew Maxwell the Irish comedian observed recently to loud applause from a London audience, the British border in Ireland).

The question of the future relationship intervenes strongly here. The idea of a backstop was introduced in the joint progress report agreed in December 2017. If you assume, as most people do, that the future relationship will not be defined, let alone agreed, by the moment of Brexit, some arrangement is needed to ensure that people and goods can continue crossing the border in both directions until a final (assumed to be superior) agreement is reached.

Barnier presented a legal definition of a backstop which was quickly rejected in March 2018. May protested that it effectively drew a border between Great Britain and Northern Ireland - down the Irish Sea - with its assumption that no customs or sanitary checks would be performed at the line between Northern Ireland and the Republic, but that they would be done on either side of the water.

The Chequers proposal emerged in part to solve this problem, imagining that the final relationship could be implemented before the end of transition (when the EU asks the rest of the world to pretend the UK is still a member state, when we obey the rules like a member state, but when we play no part in the decision-making), which is 1 January 2021. But the proposal is unacceptable to the EU27, since it involves cherry picking parts of the single market and expecting the EU to allow a third country to work as if it is in the same customs area without submitting to the full legal structures that maintain the customs union.

Various other ideas have been proposed for the Irish border, but they all essentially assume a final relationship, whereas the EU27 and the joint report May & Davis signed up to assume that something is required to cover the time between Brexit, or rather the end of transition, and an actual trade agreement. That something is the backstop, and Barnier has been tweaking it - "de-dramatising" it, in the negotiators' parlance - but May has continued to reject it because of that notional line down the Irish Sea.

****

And so we arrive at Salzburg, where British politics and much of the British media judge that May was humiliated - Donald Tusk told her "Chequers will not work". In fact what happened was that May was told to her face what EU leaders have been telling the world for months, though they were being "gentle" (as reported in a former British trade negotiator's discussion of May's statement the day afterwards).

This next section is disingenuous. The EU has been sending signals about why Chequers proposals are unacceptable since the day of their publication. But were trying to be gentle, as they'd been asked to be. Then got angry the UK Gov briefed this was acceptance 5/ pic.twitter.com/S0fdOCJ9mV

— David Henig (@DavidHenigUK) September 21, 2018

Now there's open rebellion in the Conservative party, demands to "chuck Chequers", and yet more new proposals crawling out of the woodwork. With the "200 days to Brexit" mark receding behind us, we're left with the talks at an "impasse" and the clock still ticking loudly. Oh, and the Conservative party conference is days away, and everybody is well aware that May will have to try (again) to unite her warring factions with... a speech. Nobody serious wants No Deal, or at least not in public, so the talks are still the only game in town, and the rules are rather simple:

• If you want a half-decent future relationship with the EU you need a transition period in which to (begin to) negotiate one.
• If you want a transition period you need a withdrawal agreement.
• If you want a withdrawal agreement you need an Irish backstop, and it needs to be fully defined and implementable.

The withdrawal agreement is the only legal document which will come out of the Article 50 process, the only thing that the UK Parliament, the EU Parliament and then the EU Council actually have to vote on, according to the rules in the treaty. And there's a huge amount of work still to do on it. But all eyes are on this wretched "future framework" which hasn't really been started. And all the players and the ones who think they're players want to fill it with Chequers or Canada or Norway (see the Labour motion) or...

And that will be what many MPs think they're really voting on in October (no chance), November (fair chance) or later. The document which will actually kick off the next few decades of British history needs full scrutiny, but "trade deals" will fill the papers. After that, will anybody know what they voted for?

 

A few geeky numbers about referendums and things

People (people like Theresa May and Nigel Farridge) keep telling me that the 2016 referendum was the biggest vote for anything, ever, or the biggest democratic exercise ever. They're right about the first, and wrong about the second, and there's a variety of numbers you should look at.

The 2016 vote for Leave was bigger than any party has received in any general election, and larger than the 1975 vote to stay in the EEC. By just 32,161 votes. The  majority in 2016 was less decisive than in 1975, and the population was rather smaller 43 years ago.

1975 EEC referendum

votes for Stay In: 17,378,581

vote share 67.2%

electorate: 40,086,677

turnout 63.9%

2016 EU referendum

votes for Leave: 17,410,742

vote share: 51.9%

electorate: 46,500,001

turnout: 72.2%

But the 1992 general election was a bigger democratic exercise than either referendum, attracting more votes and a higher turnout from a smaller electorate than in 2016.

1992 general election

votes cast: 33,614,074

turnout: 77.7%

electorate: 43,249,721

2016 referendum

votes cast: 33,551,983

turnout: 72.2%

electorate: 46,500,001

(I've taken the numbers from a variety of sources, from Wikipedia pages on the various votes to information assembled by the House of Commons library.)

Letter to my MP - Deals and No Deals

This morning we saw Dominic Raab announcing in the Telegraph that "Britain will not pay its 'divorce bill' in the event of a no deal". He appeared on the Today programme to make the same point, but the discussion included a statement (from the presenter) that the £39bn payment agreed by the prime minister last December "could be slashed in half in the absence of a comprehensive trade deal".

Yesterday at PMQs Chris Philp asked "When it comes to Brexit, the joint statement of 8 December last year said that 'nothing is agreed until everything is agreed'. Does the Prime Minister agree that this means that the payment of the £39 billion exit payment and the Northern Irish backstop are dependent on agreeing satisfactory final-state trade arrangements?" Mrs May replied (in part) that "we need to have a link between the future relationship and the withdrawal agreement".

In recent months I have heard Suella Braverman try to convince a select committee that the principle "nothing is agreed until everything is agreed" means that the withdrawal agreement which is being negotiated at the moment is conditional on a final trade deal with the EU which is not currently being negotiated.

I could quote other examples, but I hope this selection is enough to demonstrate that the government is taking - at the very least - an ambiguous position.

If we fail to conclude a withdrawal agreement, the financial settlement defined in that agreement falls as well. That much is clear. The EU would try to pursue what we have accepted are commitments freely made, and Mrs May still maintains that "we are a country that honours our obligations", so it could drag on for some time.

But that is apparently not what we are talking about here. Mr Philp refers to "final-state trade arrangements", which can only refer to a full trade agreement (not the political statement on a future relationship which should be delivered along with the withdrawal agreement). Yet he is setting that up as a condition for the payment of any of the money that was agreed last December. Later in his question he refers to "the legally binding withdrawal agreement, which also requires those final-state trade agreements to be fully agreed and implemented by 31 December 2020 in a form acceptable to this House". And Mrs May did not demur.

Even if everything goes according to the current plans there is no guarantee of a trade agreement by the end of 2020 - I can't see the "requirement" that Mr Philp refers to in the Joint Report - and it would be a separate agreement negotiated by different teams on both sides under different law and treaty provisions on both sides. There was no agreement in the Joint Report that any provision of the withdrawal agreement which we are negotiating would be conditional on achievement of a separate agreement which we are not yet negotiating.

On the face of it, these discussions are an attempt to revisit things which have already been agreed, and it has reminded observers of David Davis's statement after last December's EU Council that the Joint Report was 'much more a statement of intent than it was a legally enforceable thing', which he had to "clarify" the day after.

Not only is every word uttered by our representatives watched and noted by negotiators and governments in "Brussels" and every EU27 capital, so too can negotiators and governments in countries which might have an interest in future trade deals with us see what has been said. The Financial Times's legal commentator (and many others, with a professional interest and not) are very worried by this. To quote David Allen Green of the FT (in a series of tweets):

"The UK is proposing to renege on the payments to the EU it has already agreed in principle. This is dangerous madness. As a post-Brexit UK makes its own way in the world, it is crucial that future partners see UK as trustworthy in its promises... And it is because of the UK's propensity to backslide that the EU27 is right to seek solid contractual obligations from UK. Wouldn't you, if you were the EU? A sensible UK government, acting in the national interest, should be making a show of honouring its obligations as it departs EU. This would impress potential trading partners in future trade deals. But we do not have a sensible UK government, acting in the national interest. If the UK were serious about entering into post-Brexit international trade deals then it would be using the exit negotiations as a showcase for how seriously it took international agreements. Instead we offer dappy pantomime while the world watches. And this will hurt the UK in long-term far more than any supposed advantage the UK thinks it is gaining by larking about in the exit talks. Worst possible start to UK's post-Brexit future."

I believe that the government's maintenance of an ambiguous, or even cynical, position goes far wider than a short-term negotiating tactic. It is taken in by those of us watching the news and reading the papers, and by our international partners and our prospective future partners, and it does not look good. Whatever you think of Brexit - and I consider it to be a serious mistake - this approach is short-sighted and likely to be counterproductive.

Letter to my MP - Trade with Africa - the reply

On 28 August I sent an email to my MP, Mary Robinson to ask what I called a couple of simple questions. A reply arrived on 7 September. As far as I can see it fails to address the questions, or indeed the subject matter. Anybody would think she had just read the subject line and asked an assistant to produce a chunk of standard ministry-supplied text.

Here, with the single redaction of my address, is the text of the reply.