Yves here. I thought it was worth highlighting a key point that Clive makes relatively late in his post on why a “no deal” or “crash out” Brexit now looks like the most likely outcome. Even though one of the main arguments made in favor of Brexit is that the UK will take back its sovereignity, it is not only utterly unequipped to do, it has taken no steps towards increasing its competence. The reality is that Tories hate bureaucrats whether domestic or foreign, but it will find out soon the catastrophically high cost in a legalistic and systems-driven world of trying to get by without them.
In addition, Clive has pointed out he voted for Brexit.
By Clive, a UK-based IT professional
I’ve always been ambivalent towards the AJP Taylor theory that during the course of 1914 the slide into WWI became inevitable due to the constraints imposed by railroad timetables. While it’s probably true to say that it was a contributory factor, it is to me a stretch to suggest that it was the factor. Rigid interlocking mutual defence treaties which were supposed to guarantee peace and security, which they probably did in isolation but, when the cumulative effect was considered, in reality only restricted room for manoeuvre, were just as culpable to me.
But regardless of the weight it should be given as a cause, it does strongly suggest that the elites of the time had at least some sensitivity to the practicalities and prerequisites of mobilisation. In that respect, they could teach today’s elites in the United Kingdom a thing or two. Strangely, in mainland Europe, certainly as demonstrated by the EU member states which will remain after the UK’s departure (the EU27), their elites are apparently well aware of it.
It marks what I have observed as a cultural difference between transatlantic (a group which I’d count the Unites States as a member, indeed, in its vanguard) and European political and business leadership. Perhaps explicable due to US and UK common law legal systems as opposed to the civil law legal systems practiced in Europe, the transatlantic business and political culture allows — encourages, even — a pernicious form of managerialism whereby someone in charge issues some edict or other which the minions are then supposed to bring into being. If this breaks the rules or the law, then you can always go and retrofit the law to your actions later. See Naked Capitalism’s extensive mortgage securitisation and MERS coverage for detailed explanation and analysis.
Certainly there needs to be some explanation, history will no doubt revisit this with the benefit of hindsight, to tell us how we have arrived at the current parlous state of Brexit affairs. As with the WWI Railroad Timetable Theory, my suggestion of this cultural difference between the UK and the EU is likely to be just one factor to be considered amongst many other complementary and conflicting notions.
And what a parlous state of affairs we have. Like some overwrought Wimbledon tennis final which has gone on so long that everyone just wants it to finish so we can all stop for a nice cup of tea but instead we get one more tie-breaker and have to sit through yet another rally, the UK government led by Prime Minister Theresa May and the EU negotiating team (the day-to-day management of which is handled by the European Commission) are still lobbing speeches and draft documents at each other.
None of it will make any difference and all of it is irrelevant. Neither side is capable of taking anything other than very limited, pre-prescribed, actions. In the absence of feasible actions to the contrary, a default outcome is inevitable. This default outcome is a “crash out” or “no deal” Brexit. This means that the UK will leave the EU without any agreement for how ongoing business, legal and political activity between the UK and the EU is to function. Some impact to these ongoing activities is likely to be unavoidable. See here (pgs. 16 thru 18) for an overview of the scale of the activities subject to potential negative impact.
Like the intergovernmental treaties which cemented the responses of the European states which got drawn into the WWI conflict, there are multiple constraints pressing against both the UK and the EU which preclude either party changing direction. I will list these below and briefly explore each:
No Square Circles Have Been Found for the Northern Ireland (NI)/Republic of Ireland (RoI) Border
The EU’s Single Market Rules require the members of the single market to check and, if necessary, restrict non-compliant goods from entering. This is because, once goods have entered via one member state, any goods can then circulate within the single market without further checks. Post-Brexit, the EU27 will have no method of ensuring that the UK will enforce the single market standards. The UK is asking the EU27 to take the UK’s word for it that it will instigate appropriate standards checking and verification. But the UK has not published methods which can be scrutinised how it will do this. Theresa May’s most recent speech gave aspirational statements but was not a fully worked through proposal. Absent any mutually agreed solution, the land border between the UK and the EU27 (in NI / the RoI) must facilitate the required checks. But both the UK and the RoI are bound by an existing arrangement, known as the Good Friday Agreement, not to have intrusive border checks between the two countries.
The EU27 Can’t Compromise on the Role of the European Court of Justice Even if They Were Minded to — Which They Aren’t
The UK’s argument as to why the EU27 should be prepared to be flexible is that the UK will provide equivalent protections to the EU27’s single market. But the EU27 is obliged by mutual treaty to enforce the protections. The treaty obligations require the EU27 to have recourse should the promised protections not be implemented. Enforcement actions (such as seizing goods) must have a legal basis in international law. The EU27’s only legal option for enforcement is the European Court of Justice (ECJ). It is not permissible to have two unconnected courts with the same jurisdiction. Only one court can be superior in any hierarchy of appeals to ensure finality of justice. Either the ECJ is the superior court or the UK’s Supreme Court is the superior court. Both cannot be superior at the same time. The UK government is insisting on parliamentary, which means legal, superiority over the areas which it intends to participate in the single market. The EU27 has no other court to utilise than the ECJ. The UK government is proposing an arbitration committee or similar to settle differences between the two jurisdictions. But for this to be workable, it would have to make binding rulings on the ECJ but the UK government would be able to ignore its decisions — albeit at the cost of not participating in that particular aspect of the single market. There is nothing for the EU27 to gain in this lop-sided justice arrangement since it asks the EU27 to give the UK government the very thing the UK government won’t grant the EU27 — jurisdictional autonomy.
The RoI has to Decide Who is Most Likely and Who is Least Likely to Throw it Under a Bus — and Has Decided that the Party Most Likely to Defend its Interests isn’t the UK
From the RoI’s perspective, Brexit has given it a headache which it didn’t ask for and can’t fix without impacting its relationship with and position in the EU. It has to make a binary choice — go along with the UK government’s suggested fixes or stick to the EU’s rules. It has chosen the latter. As with the ECJ above, the UK government is asking the RoI to accept 3rd parties’ assurances in situations where the UK government has said it is no longer willing to rely on the assurances of others. While the RoI may not be able to trust the EU to safeguard its position, the EU has more to lose in abandoning the RoI than the UK government does. In not aligning completely to the EU, the UK government is asking the RoI to take the risk of finding itself non-liquet – the possibility that a case cannot be decided because of a gap in the law.
None of the UK’s Napkin Doodle Proposals Outlined in Theresa May’s Speech on the 2nd March 2018 are Legislation-ready
The measures suggested by the UK government to the EU to avoid a hard Brexit require primary legislation. May specifically said “parliament would be sovereign”, which is fine, but neither the UK parliament — nor any government or the EU — cannot make stuff up as it goes along. If parliament is sovereign in matters like the associate membership of the various EU institutions the U.K. government says it wishes to participate in to allow it to continue to access the single market, that will need a white paper, first reading, second reading, select committee scrutiny, Lords’ amendments, Royal assent (then you can still get legal challenges). That’s before you have got things like the magic sparkle pony IT-enabled border controls, where you’d need several green paper drafts just to get the gist of what’s meant by those as Theresa May’s speech only gave the broadest of outlines of their requirements.
When my TBTF needed a statutory instrument, which is much simpler legislation (I won’t bore with the details, it needed to dig itself out of some legal ambiguity) it took over two years. And that wasn’t in any way contentious. And all of the UK government’s proposals are supposed to through the legislation sausage making machinery by next March. Or even, best case, by the end of 2020 when any transition period ends (but the transition period’s start needs the agreement in the areas currently still under negotiations). This equates to just over 18 months of actual available parliamentary time as an absolute maximum, the UK parliament typically doesn’t sit more than 250 days in a year.
No Political Solution now Available in the UK — the Left Hates the EU as Much as the Right and the Hard Brexit Democratic Unionist Party (DUP) in Northern Ireland Holds the Balance of Power
The UK political right, which encompasses the rightmost free market fundamentalism and libertarian wings of the ruling Conservative Party and also the UK Independence Party (UKIP) have been the main instigators of the Brexit movement and the enablers of the 2016 referendum. However, the left of the UK political spectrum, outside of the “Blairite” neoliberal-leaning faction within the opposition Labour Party, have also rejected the EU’s European integration strategy and policy directions. Because the political left does not universally oppose Brexit, the resultant UK political options are limited to some form of leaving the EU. While the Blairite faction within the Labour Party is seeking a BINO Brexit (Brexit in Name Only) which allows for a UK remaining in the single market and the customs union option, Labour’s leader Jeremey Corbyn is largely opposed to this BINO approach. A compromise agreement has been proposed by the Labour Party which involves membership of “a customs union”. This is not, though membership of the customs union, the customs union which already exists within the EU. This is therefore reduced to the level of Conservative’s napkin doodle proposals, being an unspecified and undocumented idea rather than a proceedable treaty text.
Within NI, the DUP holds all unionist constituency parliamentary seats and is a coalition partner in the current UK government. The DUP favours a hard Brexit and is not amenable to accepting the EU’s proposals for how the NI border issue should be resolved. The unionists in NI have universally rejected the EU’s approach and the EU’s by necessity (see earlier point) all-Ireland ring-fencing of the single market is now seen by even moderate unionists as being anti-unionism and pro-united Ireland. This is causing even some Remain unionists to become Leave proponents.
Even if the Conservative Party was willing to throw the DUP under a bus, because the DUP’s support is essential to keeping the Conservative Party in government, it would end up throwing itself under the same bus, too.
The Mood in the UK is Hardening Against the EU
The EU has no choice to take the positions it is taking but that’s not exactly helpful to its PR image. The UK’s popular press is notoriously Eurosceptic already and the EU’s unavoidable proposals are being used to further heighten anti-EU sentiment.
No Second Referendum to the Rescue
There is no viable parliamentary route for a second referendum because there is no window for the procedural steps for it to happen before next March when the UK is leaving the EU. Passage of the necessary Bill through parliament, approvals by the Electoral Commission, inevitable legal challenges and organisation at a local level (polling stations) would be essential — and it would all have to happen by the end of November 2018 because you can’t outside of emergency situations have a poll in the middle of winter; last week (until 2nd March) was a case in point, any vote would have been disputed because of extensive travel disruption which the UK was subject to.
The UK has technical options to avoid a crashing out Brexit (no deal and no transition period) but these are not acceptable politically. The UK has politically viable options, but these are neither implementable in the timeframes available or not technically or legally acceptable (or both). There is no foreseeable change pending to the UK’s political makeup either in terms of a general election or, even if there were a general election, the stances of the main political parties which would be vying for power.
Situations can change and a year is a long time in politics. But given the current position, the limited possibility of new vectors being introduced and the unmoveable constraints on the various stakeholders, a crash out Brexit is now the most likely outcome.