Is Article 50 revocable? The odd thing about this question, says Jo Maugham, the QC who aims to take the case to the European Court of Justice, is that the government appears not to what to know the answer:
The government constantly lives in a world where it doesn’t know what the law is. What is unusual about this situation is that the government does not want to know what the law is.
It’s even worse than that, though, because our legislators don’t seem to want to know either.
It has been left to private citizens to confirm the right of parliament to make the decision on Article 50, to establish whether or not it is revocable and to determine what happens to the UK’s place in the single market after the two years is up. Shouldn’t some of our legislators in the Commons or the Lords have been asking these questions?
Some are calling for an amendment to the Brexit Bill allowing for a “meaningful vote” on the final deal. But, unless Article 50 is revocable, the meaningful vote would be meaningless! That would be like giving notice to your landlord and then, just before you were evicted, asking your family to vote on whether to accept the hovel you have just been offered or be out on the street. With the 2-year clock running down, delaying the deal on offer would be likely to lead to no deal at all. A choice between a poor deal or no deal isn’t really a meaningful vote.
Surely a more meaningful amendment would be one which required the government to get an answer to whether Article 50 can be revoked before triggering it. It would be useful to have some other questions answered too but at least finding out whether we can change our minds would be a start. Without this, all the other talk meaningful votes, red lines and second referendums is just hot air.
It’s not just our legislators who have stopped asking questions though. According to the Guardian, civil servants are surprised by how little pushback they are getting from the media:
Privately, government officials are surprised there has not been more scrutiny of May’s claim to be able to swiftly negotiate a free trade deal that replicates most of the advantages of the single market without any concessions.
“People don’t seem to understand that any trade deals are years off,” said a senior civil servant in Liam Fox’s Department for International Trade. “There are 27 other countries with their own aspirations about Brexit. We cannot even start for two years. The Brexit-leaning press seems to have lost all its critical faculties. They seem unable to scrutinise what is going on because they have so much invested in the decision.”
It’s the wilful ignorance I can’t understand. In any other sphere, proceeding with a major project or transaction while knowing that there are unanswered legal questions would be seen as negligent. I can’t remember the last time a government planning such a sweeping change had such an easy ride. There’s something about this that feels almost soporific. It’s as though people have either decided it is no big deal after all or that it is happening anyway and there is nothing they can do about it.
Last month, the EY Item Club forecast that the UK will be trading under WTO rules two years from now.
Forecasting the likely outcome of the Brexit negotiations is extremely difficult given the lack of specific information in the public domain. The EY ITEM Club have assumed that the most likely outcome is for the UK’s future trade with the EU to be governed, at least initially by WTO rules. This is only one of the possible scenarios and is not the Government’s preferred outcome, but it remains a possible one given the risk that the ambitious objectives set out by Theresa May cannot be realised within two years.
Recent government statements, culminating in the Prime Minister’s speech on Tuesday, have brought greater clarity on the shape of the UK’s exit from the EU. This will have a major impact on the UK’s economic performance in the next decade and is already influencing the economy even before the Article 50 talks have begun. We think the most likely outcome is that the UK will be trading with the EU under WTO rules by the end of this decade.
So one of the UK’s main economic forecasting organisations believes that the cliff edge option, which would put high tariffs on our exports, disrupt supply chains, cause gridlock at ports and which even some Leave supporters believe would be a disaster, is the most likely outcome two years from now. OK, it’s only a forecast but I would have thought this might have had a bit more coverage in the media.
Once this becomes apparent, says the report, the business and consumer confidence built up over the last year is likely to drain away. Its predictions for the economy are grim:
The forecast sees GDP growth slowing to 1.3% this year and just 1.0% in 2018, picking up slowly to 1.4% in 2019 and 1.8% in 2020.
In other words, growth slows to a crawl for the rest of the decade.
There are good reasons to believe the Item Club might be right. The government is being completely unrealistic about how long a trade deal might take, our EU partners seem to be in no hurry to agree one and the lack of an agreement after two years would hurt us a lot more than it would hurt them. But the sort of forensic examination of the government’s approach that we might have expected just hasn’t happened. The time to challenge a chaotic Brexit is now, before Article 50 is triggered because, once the process is set in motion, it will be too late. Few in parliament seem to want to do that, relying instead on a vague never-never land of unspecified debates and votes sometime in the future.
Perhaps many in government and parliament have decided that a complete break from the EU is the best option after all but, if so, there has been remarkably little debate about it. Or maybe, and more worryingly, most of them don’t really understand what is going on. Whatever is happening, no-one seems to be putting up much of a fight for a less damaging form of Brexit. It may be that, as Janan Ganesh said, “Brexit is an idea whose only effective rebuttal is its own implementation.” In other words, we will have to wait until everything goes pear-shaped before people realise what a bad idea it was.