Article 50, Backstop, Brexit, Theresa May

#Brexit: A Procedural “Fix”?

This #blogpost was written at midday on Friday Jan 18th, 2019


The UK would apppear to be in a state of political paralysis over Brexit. While there might be a majority in the House of Commons against a “no-deal Brexit”, there is no majority for an alternative way forward.

The European Union cannot rewrite the agreement that is on the table. You cannot negotiate with a party which keeps saying: “I don’t like the proposal you have just made to me. Make me a different one”. You need to know what it is they want, at least in general outline.

But could the EU offer the UK a procedural “fix” as a way forward? Could the EU create time and space for the UK to reflect on where it really wants to be at the end of the Brexit process? Is there a way for all parties to step back from a brink that no one wants to be standing on?

As things stand the UK leaves the EU on March 29th next. If, a very big if, the Withdrawal Agreement is accepted the UK goes into a transition arrangement which could run until the end of 2022, a period of nearly four years. During this time the UK will be a de facto member of the EU, following all EU rules and procedures, but will have no say in EU decision making.

During the transition the EU and the UK will negotiate the substance of the future relationship between the parties.

But for many MPs that is precisely the problem. Brexit is a leap into the dark. In the words of the former United States Secretary of Defence Donald Rumsfeld, it is “an unknown unknown”. The only legally certain part of the Brexit package that was voted down is the Withdrawal Agreement. This covers the UK’s financial obligations, citizens’ rights and, the most controversial element, the Irish border question.

But the Irish border “backstop” itself grows out of the “unknown unknown”. Why? because the Political Declaration that sets out the framework for the negotiations on the future relationship between the UK and the EU is only aspirational. It is a map with potentially many directions of travel. The starting point is known, but not where the travellers will end up. A magical, mystery tour.

The problem confronting MPs is a Catch 22 situation. They want to know where the UK will land at the end of the Brexit process. But they can only know that after the UK has actually left the EU. You have to jump into the pool of dark water to find out how cold and deep it is. Once you have jumped it is difficult to “unjump”.

Many MPs believe that the future terms on offer will be worse than the deal they now have. They are right. The EU has made it clear that non-membership can never be as beneficial as membership. But they won’t come to fully realise that until the UK is out of the EU. Then the only way back would be to reapply for membership and the terms the UK now enjoy would no longer be on offer.

So, here’s a suggestion. Why could the EU not reframe the transition period as a “suspension” of the UK’s membership for five years? In other words, on March 29th  next instead of leaving the EU the UK would go into “suspension”, which means it would continue to follow all EU rules but, as in the proposed transition, have no say in EU decision making?  To a great extent this is what the “transition” means anyway, a sort of holding pattern until the “landing zone” post-Brexit is identified and agreed.

However, the difference with “suspension” as opposed to “transition” is that at the end of the process the UK could decide, in accordance with its own constitutional processes, whether it wanted to proceed to exit the EU on the terms by then negotiated or whether it wanted to remain in membership on the terms it now currently has. Let me put this bluntly: it is procedural cake and eat it but that is very different from a substantive deal that gives the UK cake and eat it. Sometimes, it is easier to be flexible on process that on substance.

The vote in the House of Commons to reject the proposals was decisive: 432 to 202. Barring a meagre handful, every opposition MP voted againt Theresa May. But so also did 118 Conservatives, mostly from the hardline, extreme Brexit wing, the European Research Group.

But look again at the numbers. 202 Conservatives voted for the deal on the table. That’s 202 MPs on the government side who want to leave with a deal. Most opposition MPs voted against the deal because it wasn’t good enough, or was “unknown”, not because they want to leave the EU with no-deal. To put it another way. There is a considerable majority in the House of Commons against a “no-deal” Brexit.

An analysis by the Times of the 118 Conservatives who voted down the Brexit package shows that:

  • 47 wanted a Canada-style free trade agreement
  • 34 wanted rid of the Irish backstop
  • 18 wanted a no-deal Brexit
  • 9 had no alternative proposal in mind
  • 8 wanted a second referendum
  • 2 wanted a “Norway-style EEA” arrangement with the EU

The official position of the Labour Party, in so far as anyone can work out what that position is, would appear to be that it wants a “no-deal Brexit” to be taken off the table in the first instance. The it wants the current proposals to be renegotiated to provide for “a” customs union between the EU and the UK and a new relationship that replicates the benefits of single market membership, shorn of many of the obligations that come with that membership.

Take it all together and it is reasonable to conclude that a very substantial majority in the Commons do not want to leave the EU in a way that makes the UK poorer. Only a small minority are attracted by fantasies of buccaneering Britain.

Where we are is the outcome of the exit process set out in Article 50. The key words in that article read:

In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.

As there has never been a Brexit before no one can say with certainty what these words are to actually mean in practice. For example, the EU is to negotiate in the light of “guidelines” provided by the European Council. Could those words give the Council the wriggle room to create a new, “suspended membership” status. It there anything to say it can’t? Unprecedented problems call for unprecedented solutions.

We have already had one judgement from the Court of Justice of the European Union (CJEU) to the effect that a country that has triggered the A50 process has the right to unilaterally cancel it, subject to it doing so in good faith and in accordance with its own constitutional procedures.

A50 is not written in stone and is open to several interpretations. I have seen one argument which says that the proper interpretation of A50 is that the framework for the future relationship should have been negotiated first and then “taking account” of that framework, the withdrawal arrangements should be discussed and agreed. I can see the logic of this argument.

Further, A50 says nothing about a “transition period” but, once it became clear that the UK would be in no position to leave the EU after just two years, the EU agreed to one, to run from a minimum of 21 months to a maximum of close on four years. A solution to a problem was invented that offered mutual gain to the parties.

But, however you interpret A50 it seems to be to be built on the assumption that the departing country knows in advance what it wants the future relationship to be. For example, a departing country could say: “We have decided that we no longer want to be part of the European political project of ever closer union, but we would be more than happy to stay within the economic structures of the customs union and the single market. Could we please do a deal to that effect?”

This presumes that there has been a debate within the departing country and that the government has a clear mandate to do what it is doing. In other words, what “leaving the EU” means has been discussed in full before the decision to leave has been taken. But as we pointed out in a recent Briefing (here) no such debate took place in the UK before the June 2016 referendum in any meaningful sense of the word. Thereafter, Brexit just came to mean Brexit. What do you do with a county that doesn’t know what it wants after it has left?

As has been argued by multiple commentators, Theresa May, as incoming prime minister after Cameron resigned, had the opportunity to define Brexit, but, for whatever reason, she chose to define it in the hardest possible fashion possible. Which brings us to where we are today.

Now, why should the EU go down the road of allowing the UK to suspend its membership, as suggested above? First, as we have consistently argued in this Briefing, Brexit is a negative sum game that will inflict damage on all parties. If a way can be found to avoid it, or to allow time to find the least damaging Brexit, so much the better. Suspension may be a messy way forward, time consuming and politically draining, but it is better than a chaotic Brexit by a long way.

Secondly, long experience in labour negotiations has shown that if, at the end of the process, the other party is unhappy and angry they will wait for the chance to extract revenge. Having a wounded tiger in your back garden is not a good idea because a wounded tiger is a dangerous animal.

To put it another way, when you are by far the stronger party in a negotiation and the other party has gotten themselves into deep difficulties then, as the Chinese put it, it is wise to offer them a golden bridge over which they can retreat.

Suspension also avoid the legal problems that arise from extending the A50 timeline. No need to elect MEPs or to appoint an EU Commissioner. Further, as it would be outside EU decision making processes the UK could not use its “insider” position as leverage in the exit negotiations.

But if the UK could have a suspended membership while it renegotiated terms might not other countries be tempted? Sure, they could. But who wants to sit outside the decision-making rooms for five years while you remain subject to the existing rules and the new rules being discussed inside?

If the EU were to go down this road would a majority in the House of Commons go for it? Why would they not? For it keeps all options open, from a hard no-deal Brexit to remaining in the EU on current terms.

If, as an MP, you want what is best for your constituents and for the country and a way can be found to avoid that leap into the dark would you not want to take it? For those who leaving the EU is almost a religious act of faith, nothing but leaving at any price will satisfy them. But they are very much a minority in the Commons, even if they have a disproportionate big voice proving that empty vessels can make the most noise.

Most MPs want to know where they are going before they sign off on the deal that lets the UK leave the EU and membership suspension gives them that.

It may be argued that five years is a long time. But what is five years in the life of a nation or a continent? Especially with the problems we are confronted with: from a revanchist Russia; to explosive population growth in Africa spilling over into potential tidal-wave migration; to political turmoil in the Middle East; and an American president who seems intent to rewriting the rules that have guided the global political order since WW11.

The outcome of any negotiation depends on the interplay between people, process and proposals. Contained within these three “Ps” are a great many things and all three of them have multiple dimensions. The above comments mostly focus on a “process fix” because there is little room at the moment for fresh proposals.

And it would appear that we have the people we have and that is not going to change anytime soon.

In a remarkable article in the Financial Times about the Torrey Canyon disaster, Tim Harford writes about ploughing on with a course of action in the face of mounting evidence to the contrary:

Some accident investigators call this “plan continuation bias”. Airline pilots sometimes call it “get-there-itis”. The goal appears within touching distance; it’s now or never. Tunnel vision sets in. The idea of a pause or a change of approach becomes not just aggravating, expensive or embarrassing — it becomes literally unthinkable.

That’s about where we are with Brexit. But it is not too late to abort the landing and keep flying until safer ground can be found.