Sleepwalking towards the hardest Brexit

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.

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23 Responses to Sleepwalking towards the hardest Brexit

  1. P Hearn says:

    The referendum is over for “normal” people. We had the vote. Decided to leave. Remainers may still be re-living the result and trying to alter it in some kind of neo Groundhog Day experience, but most have accepted a 1,400,000 majority decision as decisive enough, and moved on.

    The EU has started roaring and threatening (Juncker yesterday saying the price to leave would be “salty”), but frankly, nobody’s listening Jean-Claude, me old mate.

    Newspapers print stories people want to read. They’re not daft. If and when the story gains traction, you can rest assured it’ll adorn every front page until it emerges that EltonJohn and David Furnish are the ones with the super-injunction. You know – the important stuff.

    • Dipper says:

      I bumped into a couple of blokes yesterday and got chatting, as you do. One was a property developer and the other his driver. Both keen Brexiteers. The driver said “I think in the short term it will be worse but in the long term it will be better.” Both were driven by a deep hatred of the EU and a view we were better off sorting out our own problems.

      So that is why no-one is bothered. Leavers know it will be hard, but believe remaining would have been worse. Pointing out that the EU could really make our lives hard is not a reason for then letting them decide our laws – would they suddenly become really nice to us and start listening? To counter Janan Ganesh, a bad deal will be proof we were right to leave.

      So for most leavers it is existential. The outcome will be what the outcome will be. And then we can get on with the business of solving all those issues like the trade deficit, the fiscal deficit, getting people off the sick and doing zero hours jobs and getting some skills, improving our productivity, all those things Rick you used to go on about before the referendum.

      Also, as per the first para, there has been lots of debate about it. Just between ordinary people you meet on the street, not necessarily in papers.

    • Jim says:

      Precisely. We’ve had the vote, now we’re off. End of story. Its the role of the pols to cross the Is and dot the Ts.
      All this talk about ‘law’ when it comes to Europe is nonsense anyway. We all know where the EU is concerned the law is a flexible concept – it applies to some countries in some circumstances, but not other countries in other times. We are told the 4 pillars of the Single Market are inviolable, so we couldn’t have any restrictions on Freedom of Movement, yet Germany has restrictions on free trade in services within Germany, in direct contravention of the freedom of trade throughout the EU. Greece was allowed into the Euro despite not meeting the legal criteria, France and Germany have at times breached the Stability and Growth Pact without penalty, France has restrictions on Freedom of Movement of Capital (you can’t buy French firms), as does Denmark (foreigners can’t buy Danish property).
      The negotiations about the terms of the UK leaving will be political, not legal. What the parties decide will be made legal, the law won’t determine the decisions.

      • andrew adams says:

        But it’s not “end of story”, it’s the start of a complicated and lengthy process which has different possible outcomes, and which will have a huge impact on this country for decades to come. Politicians aren’t just crossing the Is and dotting the Ts, they are re-writing the whole book.
        You may be right that ultimately there will be a polical fix and a legal fudge, but that will still involve important decisions and it will crucial that the people making those decisions are subject to the maximum possible scrutiny.

        • Jim says:

          Staying in the EU would have been an equally complicated and lengthy process with many possible outcomes. Had the 1975 voters been able to see what the EEC (having morphed into the EU) was to become, then they would most likely not have voted to stay in. Similarly we cannot predict in any way what further levels of integration might have been pushed down our throats (assisted by compliant politicians of both parties) if we’d voted to Remain, but one can guess the direction of travel, its always been one way in the past, and while past performance is no guarantee of future outcomes, its the best way to bet. Remainers like to imply that staying in the EU was the ‘safety first no change’ option – history tells us that has never been the case in the EU – there have always been forces pushing further integration, and despite repeated public votes against, in numerous countries, it has always gone ahead as the Eurocrats wanted. Funny that, its almost as if the EU is totally undemocratic…………….

  2. Peter says:

    I think most Remainers don’t care as they have all drafted Exit Plans for leaving the UK. I mean personally, I don’t think there’s any hope of overturning a majority of people (generally older, generally less educated) who were instructed how to vote and how to think by the rabid British press run by Murdoch and Dacre and a cheap marketing stunt on the side of a bus. They voted for an act of economic self-harm and vague notions of “sovereignty” over bendy bananas and fish quotas (or was it brown people and Poles?), they can deal with it. It’s just easier to move country and jump from a sinking ship, as much as May will call you a citizen of nowhere and try her best into shaming you into staying put in the crab bucket.

    • Jim says:

      Yes the British Public were ‘instructed’ to vote by a few papers saying ‘Vote Leave’, but the entire weight of the State and political class threatening Gotterdammerung if we vote to leave wasn’t an instruction at all.

      For goodness sake, just accept that the people who voted to Leave were sentient human beings making an electoral choice that was as entirely valid as a vote to Remain. Not sub human dolts who were herded by the Daily Mail into the voting booths and had their hand held to vote Leave.

  3. Brendan says:

    Based on the comments by government ministers – particularly Davis – they are convinced a trade deal is possible, and easy, because we are just going to bring EU regulation in British law.

    I cannot see this working. I don’t know what has happened, but somehow everyone seems to have just given up on questioning any of this.

    https://www.theguardian.com/politics/2017/feb/21/baltic-politicians-lobbied-david-davis-only-negotiate-brexit-uk-unified-eu27

  4. John says:

    What we are all witnessing is the finest “muddling through” tradition these islands have to offer.
    It happened in both world wars and for most of the last 50 years.
    I suspect there is also a train of thought which believes that the EU is on the brink of break-up.
    This could mean that being first out the saloon bar door could be advantageous!
    Then, we can return to the magnificent Palmerstonian tradition of aloofness from Europe.
    When there is fog in the Channel, we will once again be able to say, “Europe is cut off”.

  5. As you know, Steven, I am usually the last to defend our political class, but on this occasion I think you are being a bit unfair on parliamentarians. For, while there must be *some* legal uncertainty for as long as the ECJ has not ruled on the matter, most UK parliamentarians with any sense (and yes, some such creatures do exist) know (a) that there is a very, very strong consensus among legal experts that Art50 is not just revocable, but unilaterally revocable (see, for example, the ‘Three Knights’ opinion obtained by Bindmans, and the very clear view of Lord Kerr, who did after all write the damn thing); and (b) that, in any case, the revocability of Art 50 is much less a legal Q than a political one. If May went to France and Germany in late 2018, saying “sorry, we’ve fucked up, we want to stay now”, France and Germany would make sure it happened. Sure, there would be a terrible price to pay, not least by May personally, but they have us over a barrel anyway, so we are fucked whatever happens. The PM of course knows this, but it does not suit her politically to say so. Which means tabling parliamentary questions and amendments is a bit pointless (though there was in fact at least one amendment on this in the Commons), as they will not illicit any meaningful answer. Such activity would, indeed, be a waste of scarce resources and time. But it suits Jolyon to cast everyone else as useless idiots. In Jolyon’s world, everyone apart from Jolyon is a useless idiot.

  6. You’ll have to talk me through why Lord Finkelstein wrote a long piece in The Times only yesterday saying Article 50 was clearly legally irrevocable. And (consequently) that those who still think the UK’s future is better served by Remaining should give up the political fight.

    As to your personal observations about me, I’m sure all eight of the people in the world who are interested will form their own view as to who they reflect on: you or me.

    • Dipper says:

      The issue about continuing to fight the Remain case is that post referendum the deal and terms we are likely to be offered are even worse than the ones that David Cameron was offered. If we were to ask to come back it is hard to see how we would have any influence in the EU to maintain the rights of states to determine their own destiny in a free trade area against the federalists who now appear to have sway and who would simply dictate terms. What would we do if we didn’t like the terms we were offered? Have another referendum?

      Also, in a negotiation, signalling your weakness in advance and publicly indicating you will take absolutely any terms rather than walk out without an agreement are tactics that will bring about very poor outcomes. History has lots of examples of small nations winning struggles against larger nations by making the cost to larger nations of continuing the fight outweigh the cost of conceding. IMHO the government are doing exactly the right thing indicating that they are prepared to leave on WTO terms. It makes the EU think seriously about what a mutually beneficial agreement would look like rather than giving them the green light to screw us over.

      • Stefan says:

        Dipper can you point me to anything definitive that shows what WTO terms will be. As far as I can tell it’s all speculation.nobody actually knows, or isn’t saying, not even the WTO itself. This is the answer to Rick’s Question. There isn’t forensic analysis because there isn’t anything to analyse. Analysising speculation is a fools errand.this is especially so since most pre brexit forecasts were either wrong or people now believe they were wrong.
        I personally think A50 is revocable but it’s moot as will never happen. The negligence was calling ref without knowing consequences. Telling brexiteers it will be a disaster is only speculation they don’t believe or really don’t care.

        • Dipper says:

          I’ve noticed a clear split on EU views. Most people I know are self-employed, contractors, run small businesses, or are/were financial traders or senior managers. They are all happy taking risks and accepting the consequences. They are all Leavers.

          I get the impression many people who work in large organisations and parts of government are not happy with risk and prefer to work in environments controlled by bureaucracies, and they are generally Remainers.

          So Stefan I think you are right when you say most brexiteers don’t care. They think “we want to do business, you want to do business, so lets do some business” and assume a way will be found.

          Quite who is right, risk-loving Leavers or planning-addicted Remainers, is something we will discover over the next few years.

          • Chris says:

            Dipper, translated:

            “I’ve noticed a split. Most people I know are traditional Tories. They are happy posing as risk-takers and big men, while passing the risks and consequences onto their workers. They are all Leavers.

            Traditional labourers, who bear the brunt of bosses’ risks, don’t want more. They see the corruption, and want it gone. They are generally Remainers.

            So Stefan I think you are right when you say most brexiteers don’t care. They think “we can graft, you can graft, lets pass the costs onto workers” and plunge ahead.

            Quite who is right, childish Leavers or fed up Remainers, is something we will discover over the next few years.”

          • Dipper says:

            Chris.

            The driver I referred to above was a Geordie with a UNITE badge and a Labour party badge on his lapel. If you want to call him a traditional tory to his face please let me know when and where you are going to do it so I can observe from a safe distance.

            Most of the contractors and traders I know don’t employ people so they are not bosses.

            As for corruption, good luck on convincing people that the EU is the anti-corruption option.

            post referendum politics does not fit into traditional UK views of politics. The political scene is fracturing along new fault lines. how it reassembles is not yet clear.

          • P Hearn says:

            The Remain campaign was so utterly pathetic, I thought at the time that they’d just picked the wrong, outdated marketing strategy, (IBM’s legendary 1970s “FUD”), but lost with their “Project Fear” negative approach. Telling folks that yes, the EU is corrupt, German dominated, economically unstable, unfair to Africa, wasteful, protectionist, undemocratic, distant and just a bit rubbish, but leaving would be so much worse, turned out not to be a winning line. Who knew? Fire the marketing and campaign strategy people, then move on.

            However, in hindsight, the whole Project Fear schtick was simply where many (most?) Remainers actually were and still are. They were simply declaring their own deep-seated fear, and failing to understand how Leavers were not also soiling their pants on the hour, every hour. That fear has only intensified after the vote to near-hysteria and outright terror, and perhaps explains the extraordinary lack of acceptance by Remain for the referendum result.

            Maybe Remainers’ fear runs so deep that they’ve explained the lack of said fear in Leavers as pure stupidity / bigotry / racism / .

            Either that, or it’s the intolerance of others’ opinions that sees universities no-platform anyone who is even slightly off message. Either way, Remainers’ fear has been stinking the place out ever since, to the point where they can’t turn their thoughts to constructing a future post-Brexit. A mass panic attack.

            Perhaps it might be more accurate to dub Remainers as pessimists and Leavers as optimists? That’s my experience, so far at least.

      • andrew adams says:

        If we don’t leave then we will remain on the same terms we have now, with the same vetoes on greater integration and other issues.
        If we were to leave and apply to rejoin that would be a different matter, we would lose our rebate and various opt outs.

        • Dipper says:

          andrew adams – I don’t agree. I think many in the EU resent the UK’s vetoes and opt-outs. They are probably quite happy we are going. I think if we now say we will stay they will work hard to remove those opt-outs and vetoes and force compliance with the federal agenda. We will have had our bluff called and will be unable to resist.

          • andrew adams says:

            Dipper,

            As I understand it our opt outs are written into the existing treaties, so while I don’t doubt you are right that other countries resent them they can’t be taken away without treaty changes, and treaty changes require unanimous agreement. Same goes for the close political integration, that would require a treaty change as well, and I don’t think we would be the only country to object to that.

  7. Keith says:

    It may be an economic and social mess mess but it has worked for the Tory party and hard right. May will not question Brexit or her MPs as the idea was a ploy to unite the right at all costs and keeping the right united is the top priority for the Tory party. Dragging politics further to the right. UKIP wagging the dog.

    The leadership of Labour is anti EU or lukewarm and in conflict with many Labour MPs. The fact many MPs in the PLP are pro EU and hate Corbyn means ironically Corbyn has little incentive to be pro EU as he cannot please them any way. As Labour are in opposition and cannot control the negotiation process they can demand this or that from Brexit but cannot contrive to get it. Without an agreement of some kind before triggering article 50 the final results are impossible to know. Presumably a large number of new legal agreements will be needed between the UK and EU and the rest of the world. So it will be a very long time before the full consequences become clear and I suspect most will be bad. But buying a pig in a poke has become fashionable in world politics.

  8. Dipper says:

    “Brexit is an idea whose only effective rebuttal is its own implementation.”

    This is wrong. There will be no reckoning on either side.

    The main point of contention between Remainers and Leavers is the place of the UK in the future EU. Most Remainers believe the safeguards in place guarantee the UK’s status as an independent country in the EU and we are economically better off by membership. Most Leavers believe the UK would be unable to resist the slide into membership of a federal Europe which would in the long term be a disaster for the UK. If we exit the EU, then we will never know which future lay in wait for us. In which case no matter how bad the economy gets Leavers will still think it is a price worth paying to avoid the Federal fate in the EU, and no matter how good the economy gets Remainers will always think it would have been better if we had stayed in the EU. Time, by itself, is unlikely to resolve this particular division.

  9. Dipper says:

    This 50 Billion € we owe the UK (about £40 Billion). How relevant is it? Does it change the maths of the £350 Million we send to the EU?

    I modelled the growth in population of the EU by taking the current populations and the year of accession of each country and assuming the liability accrues at a constant rate per person. There will have been about 19.4 Billion person years up to the end of 2019, in which we have accrued a liability of about £40 Billion, so that is just over £2 per person per year. There are about 500 million people in the EU at the moment so we accrue at a rate of £1.05 Billion per year. The argument over numbers was Leave said we send about £19 Billion per year, and Remain said the rebate meant it was only £14.7 Billion, so the additional liability doesn’t alter the balance of these numbers significantly. The accrued liability we owe the EU, whilst big, isn’t big enough to radically change the arguments about future membership.

    By comparison. HS2 at £46 Billion and 8 years is £5.8 Billion per year, and Hinckley C at £18 Billion and 10 years is £1.8 Billion per year (obviously those numbers are subject to change).

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