The Brexit Bar

As the potential Brexit crash-out date of April 12 approaches, UK politicians are making a good show of trying to avoid it. Yet the lack of understanding of the basics of what it means to be in the European Union means the process bears an awfully strong resemblance to classic comedy scenes of workers in a factory desperately turning off and on switches to shut down a process, a mechanized version of The Sorcerer’s Apprentice. And in those episodes, the remediation efforts inevitably make things worse.

Maybe the UK will be luckier. But the signs so far are not promising.

One is that even though the EU has given the UK a deadline of April 10 for presenting any “way forward” that would justify a long extension, Parliament hasn’t gone into a weekend session. As Richard Smith noted, “Looks as if the Tory Party’s decided the best thing to do with the weekend is not to think about indicative votes, but to jack up the internal strife levels a few notches instead”:

MPs are still chasing their tails, even if they don’t recognize that. The current plan, according to the Financial Times, is to hold another set of indicative votes on Monday, and if no winner emerges then, another set on Wednesday. Assuming Parliament finally settles on something, the House then plans to pass legislation on Thursday. Theresa May has made it clear that she may not agree with what Parliament cooks up, hence the perceived need to force her to carry their message.

That timing seems optimistic, particularly when you factor in how clueless the officialdom continues to be about the options they are debating. Guurst sent this along:

As troubling is the incomprehension about the idea that having the UK stay in a customs union with the EU is tantamount to a softer Brexit than Theresa May’s unpopular Withdrawal Agreement. You can see how ITV’s Robert Peston does not begin to grasp that his sources have this backwards. From a story on Sunday:

Some allies of the prime minister are desperate for a majority of MPs to back Ken Clarke’s motion to keep the UK in the customs union….

To be clear, these are not ministers and officials who themselves are keen for the UK to agree a deal with the EU that would remove the requirement for customs checks to be reintroduced after Brexit…

But they hope if it becomes the revealed will of the Commons to negotiate that kind of so-called soft Brexit – one which would keep the UK under the jurisdiction of the European Court of Justice, and would prohibit the negotiation of trade deals with non-EU countries – that would be the perfect platform for the prime minister to put her own Brexit deal back to the Commons for a record-breaking fourth time – on Tuesday.

Recall that the motion last week calling for a customs union failed by the smallest margin, a mere eight votes, so there’s good reason to think it will win approval this week. But as Richard North explained at considerable length over a series of posts, a customs union does not, as Peston incorrectly states, end the need for “customs checks” (also an imprecise term). A customs union is a trading area subject to common tariffs, so no duties are collected when goods move across borders. But a customs union does not provide for common regulations and legal oversight. Turkey and the EU are in a customs union, and they have a hard border. As North tartly observed today:

….when we have a substantial number of MPs prepared to vote solely for a customs union as a solution to the UK’s post-Brexit needs, we are clearly not dealing with the sharpest knives in the draw.

Putting it somewhat more bluntly, you are struggling to match the IQ of an amoeba if you believe that a customs union is an answer to Brexit – into which category, it appears, hundreds of Labour MPs fall. It also makes you wonder what game Kenneth Clarke [the sponsor of the customs union motion] is playing…

Chris Grey was more measured:

That said, even at this very late stage it is remarkable how riddled with confusion the debate remains. For example, amongst some of the propositions made (not all of which were called) for the indicative votes were ideas that are simply unworkable.

These included Nicky Morgan’s ‘Malthouse’ proposition (which was not selected to be voted on) and Marcus Fysh’s ‘Malthouse Plan B’ or ‘managed no-deal’ proposition, which was selected and garnered 139 votes. There’s not much point discussing what these proposals consisted of as it seems unlikely they will be revived (but see this previous post on ‘Malthouse’ for what is wrong with it). Of particular note is that the European Commission statement after Friday’s vote explicitly ruled out any transition period or sectoral deals if the WA is not passed. In other words, managed no-deal is, as it has always been, a dead duck.

Even some of those amendments which fared better were based on ideas with severe practical problems. The Labour proposal remains stuck in the meaningless pre-referendum nostrum of what Corbyn calls single market “access” (although the actual wording in this proposition was “close alignment”). It is an expression which should be expunged from the Brexit lexicon and has done untold damage all along by refusing to face the binary choice of membership or non-membership of the single market. It is worse than shameful that the official opposition should still be dissembling about this.

The Clarke proposal for a customs union (only) is coherent, and got more support (265) than Labour’s (237) but wouldn’t resolve the Irish border issue, and would not obviate the need for the backstop provision in the WA. The Boles ‘Common Market 2.0’ or ‘Norway+’ proposition is also potentially coherent, and would resolve the border, but attracted surprisingly little (189) support, though some expect it now to gain ground and it is at least conceivable that it will become Labour’s official position.

Because the Brexit debate in Parliament is hopelessly confused, I will spare you Richard North’s analysis as to why the current “Norway” plans are unworkable. My assumption is they won’t survive the week. If I am proven wrong, we can look at them in more detail.

But back to the “customs union” notion. Per Peston, it appears that many MPs see it as a “softer” Brexit than May’s Withdrawal Agreement. This is hair-raising. First, it strongly suggests that support for this option would plunge if it were adequately defined, that it means different things to different MPs. Second, a softer Brexit than May’s would have all of the features of May’s Withdrawal Agreement that the country found so objectionable. Specifically, it means accepting something very much like the backstop, or having all of the UK subject to EU rules and regulatory jurisdiction so as to remain in the internal market….which begs the question of why Brexit at all?

But that does get us back to the point raised by Peston’s Conservative sources: if Parliament approves of a customs union, thinking in its confusion that that is tantamount to a softer Brexit, May’s allies hope they can get her deal pushed over the line by making them even more misinformed than they are now, by persuading them that a “customs union” Brexit is no Brexit at all. Again from Peston, who sadly doesn’t understand how bass-ackwards this is:

The PM and her advisers (or at least some of them) assume, not unreasonably, that perhaps another 15 Tory Brexiter MPs could be scared into voting for the EU Withdrawal Agreement if they could see that the conspicuous alternative would be a customs-union-based Brexit-in-name-only.

If only 15 Labour MPs could be converted into supporters too, her deal would scrape though at this spectacularly late juncture – and that might happen if the PM were to write into the body of her latest meaningful-vote motion the essence of the amendment laid last week by the Labour MPs Gareth Snell and Lisa Nandy.

I am reliably told the PM will incorporate the Snell/Nandy plan, which would empower MPs to shape negotiations on the future relationship with the EU, partly because she needs Labour votes and also because the Speaker will only sanction a motion from May that is substantially different from previous ones.

To drive home the point about the utter incomprehension of what “customs union” means, let us return to what trade expert Richard North said about the Clarke “customs union” motion on March 29:

But there is no possible way that a customs union in any shape or form could satisfy the UK’s trading needs or form the basis of a relationship with the EU. Anyone with the remotest idea of the history of the EU, and the progression from the customs union to the Single Market, will understand this to be the case. Even with the EU’s customs union fully in place, by the early 1980s there were still delays averaging 80 minutes for lorries at the EEC’s internal borders….

Given then that a customs union is an irrelevance, the focus needs to be on the Single Market – already rejected by MPs in the two forms offered. But, as we already know, the Single Market is not enough. Tying in CM 2.0 to the Clarke proposition would not provide a solution to our needs. Even if it was fully adopted, it would not give us frictionless trade and nor would it remove the need for controls on the Irish border.

May is still plotting to get Meaningful Vote 4. Above, we hoisted from Peston what May’s allies seem to think is an opening for her to get her Withdrawal Agreement approved. The flip side is that what she’s been doing more visibly looks screechy and desperate. At this stage, that may not matter, but in general, visible signs of weakness aren’t helpful in trying to muster support.

The biggest “Huh?” is the threat of a general election. From the Financial Times last Friday:

Downing Street officials said Mrs May could even call a general election to break the impasse at Westminster, after MPs voted by 344 to 286 to reject her withdrawal treaty on the day Britain was originally scheduled to leave the EU.

Under the Fixed Term Parliament Act, the Prime Minister can no longer ask to dissolve Parliament under the royal prerogative. The triggering events are either losing a vote of no confidence or via a 2/3 vote in the House.

Even though the Tories are no doubt still unhappy with May, it is inconceivable that they’d risk triggering a no deal Brexit via voting to turf her out now. On top of that, Labour is ahead in the polls (hat tip TYJ), making “because Corbyn” an even bigger reason to stand pat than before. Similarly, the DUP would risk losing its powerful role as an essential coalition partner, and hence is very unlikely to vote against the Government.

May is also making a strained interpretation of the EU’s position to contend that the UK must approve the Withdrawal Agreement. Let me again quote Richard North. Mind you, I suspect he is interpreting what May means correctly:

Tucked into the prime minister’s response to the [third] vote [against the Withdrawal Agreement was a powerful little landmine. The European Union, Mrs May said, has been clear that any further extension will need to have a clear purpose and will need to be agreed unanimously by the Heads of State of the other 27 Member States ahead of 12 April.

This will almost certainly involve the United Kingdom holding European parliamentary elections, she added, then placing the explosive device. “On Monday this House will continue the process to see whether there is a stable majority for a particular alternative version of our future relationship with the EU”, she said, noting that: “Of course, all the options will require the Withdrawal Agreement”.

And there it is. The House can debate and vote on as many motions as takes its fancy on Monday, but anything which sets out the terms for our future relationship will have to be accompanied by a proposal for delivering the Withdrawal Agreement. And that is something parliament has thrice refused to do.

This appears every bit as made up as May’s claim that she can call a general election. Yes, May is correct to indicate that the EU will want to be satisfied on certain matters before it grants another extension,. Those are highly likely to include the points it has repeatedly insisted were necessary for the UK to present in seeking an extension: to give a reason why, and to explain how it proposed to arrive at a different sort of Brexit, since the one it has worked on before proved to be a non-starter.

But the idea that the EU would only accept a different path to the Withdrawal Agreement seems nonsensical. Why would the EU set a cut-off date for approval of the Withdrawal Agreement for March 29, but allow a different date as the deadline for the UK to seek a longer extension?

If the UK manages to get out of its own underwear and seek an extension at the April 10 EU Council meeting, the EU will no doubt want the UK to explain how it will get to a Withdrawal Agreement. But that presumably means a new Withdrawal Agreement, not the repeatedly rejected Withdrawal Agreement.

Or does it, since May may not play ball with Parliament? What if North is correct about what May means? Recall that she told Parliament last week that she wasn’t presenting any unicorns to the EU. What if she genuinely believes that the EU will accept only the, as in her, Withdrawal Agreement, and not a path to a new one?

North argues that Parliament can’t compel the Prime Minister to act on treaty matters (I very much look forward to getting the commentariat’s reading on this idea). From his April 1 post:

With only relatively minor exceptions, the initiation of international agreements (treaties) is subject to Crown prerogative, and is not something that MPs can order. After the Miller judgement, parliament can under certain circumstances withhold approval for some actions, such as giving notice under Article 50, but it cannot instruct the government to enter into international negotiations, much less direct the course of those negotiations.

If this reading is correct, or at least arguable, this implies May could (as she warned she might earlier) ignore Parliament. I’ve quoted her before but it bears repeating:

So I cannot commit the Government to delivering the outcome of any votes held by this House….

Unless this House agrees to it, No Deal will not happen.

No Brexit must not happen.

And a slow Brexit which extends Article 50 beyond 22nd May, forces the British people to take part in European Elections and gives up control of any of our borders, laws, money or trade is not a Brexit that will bring the British people together.

This is May’s Impossibility Theorem. The only thing that is possible is her deal….but not if Parliament keeps saying “no”. I am waiting for her to say that not saying yes to her deal means No Deal.

But more immediately, May has thrown down the gauntlet and said she won’t necessarily act as Parliament’s water carrier. And if she has plausible legal grounds for operating independently, what pray tell is Parliament’s recourse if May goes off their script at an EU Council meeting on April 10?

What about the Irish border? One claim often made is that the EU would blink and prevent a crash-out because it would result in a hard border in Ireland, which would hit the Republic very hard.

Tony Connelly at RTE reported over the weekend (hat tip PlutoniumKun; featured in Links yesterday) that intense preparations are underway, but they are being kept as secret as possible so as to avoid influencing the debate in London. Even though “muddle through” is not how Eurocrats like to operate, it sounds as if they recognize that’s the best they can do. Key sections from an important story:

A working group of officials from the Commission’s powerful Competition division and officials from the Department of Business, Enterprise and Innovation have since the end of January been exploring the extent to which Dublin can push state aid rules to the limit to mitigate the costs of managing checks.

The Commission’s customs arm has been exploring how Ireland will meet the need to levy duty on goods coming in from Northern Ireland without having a hard border. There have been daily contacts between agriculture Commissioner Phil Hogan’s team and the Department of Agriculture, as well as contacts from the food safety division of the EU, DG SANTE….

Before getting into the detail of how checks might be applied, a number of principles are worth bearing in mind.

Senior officials say that if there is a hard Brexit on 12 April, it will be impossible both logistically and politically to bring the full gamit of EU internal market and customs union rules to bear in Ireland the next morning.

This will be a managed process driven on the one hand by politics – ie, the promise to avoid a hard border; and on the other hand by risk – ie, how far the EU is prepared to bend the rules to abide by that promise without fundamentally compromising the safety of EU consumers….

However, that will not mean the EU turning a blind eye, or tolerating a wild west situation. There are countries on the periphery of the EU who will be watching with interest as to what happens on the Irish border.

“The precedent value or risk of anything like this is not to be underestimated,” says the official. “The EU is an institution of rules, so precedents are something that have to be weighed up carefully.”

The second principle is that so long as the politics of Westminster are live, nothing will be decided that might leach into that debate….

A third principle is that while Ireland will be determined, indeed legally obliged, to uphold EU rules, they will be applied incrementally.

Officials have not discounted a scheduling sequence where rules are phased in over time…

A fourth principle is that data and risk will play a major role.

In other words, Dublin and Brussels will use data to build up a comprehensive picture of what crosses the border, who are the large operators, who are the small ones, what are they transporting, where is it coming from, and where is it going to.

That data will determine what the likely risk is, and that risk will determine what the likely controls are.

And in the interest of keeping this post to a meaningful length, I’ve had to skip over the big question looming behind the Parliamentary jousting: they don’t even seem to have found out what goal they need to meet. What is the EU’s bar for indicating “a way forward”? Despite all the trashing, MPs are stumbling in the dark and don’t even recognize it. It reminds me of the line from a Janis Ian song:

They’ll tell you that the darkness is a blessing in disguise
For you never have to notice if you’re sighted or you’re blind.
And they’ll do their best to keep you from the light.

Sadly, that has been true for the UK as a whole, and not just the political classes.

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  1. skippy

    This from The Australian – today …

    “But two leading constitutional experts have warned that the government has the right to ask Queen Elizabeth to block a soft Brexit deal by refusing to give royal assent to any bill forced on the government by backbenchers.

    A paper that was passed to Downing Street on Saturday warns that attempts by backbenchers to seize power from the government will “provoke damaging institutional conflict” and “may prompt the government to respond with countermeasures”.

    The document, written by Sir Stephen Laws QC, a former first parliamentary counsel — the government’s most senior lawyer on constitutional matters — and Professor Richard Ekins, head of the think tank Policy Exchange’s judicial power project, reads: “The process of royal assent has become a formality, but if legislation would otherwise be passed by an abuse of constitutional process … the government might plausibly decide to advise Her Majesty not to assent to the bill” — though it would be preferable for MPs not to force the matter.

    Senior government sources said such a nuclear option would be difficult since the Queen is supposed to be above politics. But May’s advisers acknowledged that she is facing an almost impossible situation this week.”

    1. Lambert Strether

      The Australian link appears to duplicate this link from the London Times; I went behind the paywall and the text is identical. However, there’s no link to the primary source, the paper from Laws and Ekins, either at the Times or everywhere else I looked for the quoted material. Perhaps other readers will be luckier, later in the day.

      There is also this nugget about Labour:

      Labour MPs backing a soft Brexit compromise are expected to travel to Brussels soon to thrash out the details with European Commission officials, negotiating behind the back of ministers.

        1. Avidremainer

          The main problem with the piece you quote is that it doesn’t square with the facts on the ground and “constitutional” precedent. The UK government relies on people playing by the rules. Mrs May plainly doesn’t play by the rules.
          The piece also refers to our constitution securing rights for a government that is “in office and in power”. It is plain as a pikestaff that Mrs May is in office but not in power. Her government is plainly powerless.
          She has 14 government posts empty because ministers of her government resigned in protest at her actions and she cannot find anyone to serve under her. The very fact that the government has lost control of the order paper shows how impotent she is. She cannot sack members of her cabinet who are in open rebellion against her. She cannot call a General Election because her own party would vote against her.
          Now lets list the number of times when, by all “constitutional” precedent, she should have resigned. In no particular order:
          When she was found in contempt of Parliament.
          When she pulled the first meaningful vote.
          When she lost the first meaningful vote.
          When she lost the second meaningful vote.
          When she lost the third (half) meaningful vote.
          When she lost control of the order paper.
          In the circumstances as described the Policy Exchange paper is devoid of meaning. The Fixed Term Parliament Act was not designed to keep a powerless government in place. It was designed to strip the Prime Minister of the power to call a general election at their whim. All it has achieved so far is the monstrosity we see unfolding on a daily basis. Mrs May ‘s government is illegitimate.

          1. bun

            exactly. people like to pick and choose which things must follow ‘precedent’ and which do not.

            the “norms” cows have not only left the barn, the barn has burned down and the firey embers used to bbq them, to torture a metaphor.

            1. animalogic

              You, Sir/Madam are a scoundrel — to torture a metaphor !¡ What next ? The murder of “biscuit” & it’s body-snatcher like replacement with “cookie” ?

          2. skippy

            My curiosity was about the source and the timing of such a document, and the fellows used to vindicate its opinion.

            Not trying to compare apples here, but Trump has little care for vacant positions along with a raft of other ailments.

            Is it going all Tudor.

            1. shtove

              Perhaps that’s a good historical comparison, but more from 1603, when Elizabeth was forced to come to parliament and apologize for crown monopolies. Most historical comparisons in the UK are with the civil war, which seems to be the Dominic Grieve way of framing the debate. Too formal, in my view.

              I’ve no doubt Clarke & Corbyn & May are far too versed in tabloid politics not to be playing on the ignorance of their domestic audiences, while winking at the technocrats.

              1. skippy

                “technocrats” = Tudors was my thoughts, sorta the remodeling of religious sanctums interiors [white wash], clergy without robes, yet still obedient to the sheep skin of divine power.

  2. vlade

    Apart from the obvious stuff, I have one comment.

    If there’ a way how May would tie her vote with a no-confidence vote, that would become interesting. I am not sure she would be able to to though, as if the vote was amendble, then of course MPs would aim to take that out. I am not enough across the legislative process to understand whether she can make a bill un-amendable. That said, if she could, it would pass Bercow test (as no-confidence takes automatically precedence and would be hard to argue it’s not substantially different).

    1. Senator-Elect

      This. If she can do this, she can threaten MPs with a Corbyn government, as the opposition can try to form a government in a hung Parliament. How would DUP and Brexiteers react to that? If May can’t attach a confidence vote to the deal, could she threaten to resign and send things spiralling truly out of control?
      Compare the UK system with the Canadian one, where a PM can make anything a matter of confidence and trigger an election at any time. The Crown always has the power to dissolve a parliament under Canada’s Constitution.
      Not so in the UK. It strikes me as truly strange that the Fixed Term Parliament Act has seemingly created this zombie government situation. I wonder if someone challenged it in court it could be shown that it breaches the fundamentals of constitutional monarchy. Or can Parliament truly make laws that undermine its very foundation?

  3. Clive

    It is by no means clear that the U.K. Parliament has any enforceable redress against the U.K. government in matters of international law i.e. treaties.

    Ultimately all (all really needs to be put as “all” because it is obviously a powerful part of the apparatus of the state and I don’t wish to diminish it but it is constantly worth reminding ourselves that it has some limits) Parliament can do is pass laws. But laws are subject to, in the final analysis, a court deciding what is right and what is wrong when viewed against a particular statute. If a matter is not subject to justiciability then Parliament can, to put it bluntly, go jump in a lake.

    The U.K. Supreme Court has indicated that if it were to hear any case concerning an international treaty it would, as a minimum have to take into account a wide variety of factors in deciding the case. From a speech by one of the UKSC justices (speeches by the justices are a good way for them to politely tell politicians what they are possibly getting themselves into without having them end up forcing a case all the way):

    What the Supreme Court’s recent decisions emphasises is that the doctrine is not confined to situations in which it can be said that there are no judicial or manageable standards. Courts are, or have become, quite accustomed to adjudicating on issues of international law, where an appropriate domestic threshold exists. Restraint or abstention is based on more general perceptions about the appropriate role of domestic courts. The perception that some matters are better dealt with at the international level, between states representing their citizens, is no doubt one element. The domestic separation of powers between the executive and judiciary is another underlying consideration. The impact on international relations of adjudication of internationally sensitive issues in a domestic court is a yet further potentially relevant factor. The nature of the issues in another very important factor, as the weight placed on the serious of the allegations in Belhaj and Rahmatullah indicates. What the recent cases suggest is that the decision whether an issue is non-justiciability will often involve a multi-factorial judgment, rather than the application of a single rule.

    (my emphasis)

    So, Parliament attempting to strong-arm the U.K. Government in the realm of international treaties is not a matter which the UKSC would automatically be willing to hear. Even if it heard it, it might decide that there is, stating the obvious, separation of powers between the legislative and executive branches.

    Even shorter: there’s no guarantee the courts will come riding to Parliament’s rescue, if the government of the day plays hard ball and didn’t negotiate a treaty as Parliamentary sentiment demanded. At the very least, it would be a hearable case, so that’s several months of delay.

    1. skippy

      Did you notice the document, written by Sir Stephen Laws QC and Professor Richard Ekins.

      I also saw terms used in the article referencing it as “Countermeasures” and “Nuclear Option”.

        1. Yves Smith Post author

          First comment. It got hung up in moderation. I’m up only for a bit due to insomnia, otherwise I’d see if I could track it down.

          1. Jerry B

            ====I’m up only for a bit due to insomnia====

            In an alternative universe, I would be able to disengage my brain(like a removable hard drive) from my body so my body could rest! Ah, the curse of an unquiet mind! And in my case an inability to sleep due to an aging, herniated discs, and arthritic body. But mostly the unquiet mind!!

            Yves, one suggestion is taking a Tryptophan supplement. I have taken a tryptophan supplement on and off for years ( in my 20’s when working nightshift and now due to sleep issues due to an unquiet mind and arthritis pain). Also, tryptophan converts to serotonin with the help of other nutrients, most notably vitamin B-6. So taking a tryptophan supplement will increase serotonin.

            Lastly, sometimes my wife and I will have an open face turkey sandwich and a glass of wine before bedtime. Turkey is a source of tryptophan and with a glass of wine == Zzzz!.

            1. Eclair

              Ah, Jerry B, the curse of the ‘unquiet mind!’

              I never realized I had one until I was in my late thirties and a work colleague remarked, ‘your mind is always thinking.’ Well, yeah. Up to that point I had thought everyone was like me. But, apparently this fellow just had long periods where his brain went into neutral gear and all went blank. Like ‘sleep’ mode on a laptop. Such a blessing!

            2. Yves Smith Post author

              Thanks but nothing helped me as a sleep aid except GHB back when it was legal. My endocrinologist back then, who is not a CT type, was quite convinced that the “date rape” scare over it was largely if not entirely manufactured by Big Pharma because GHB was cheap and produced a higher-quality sleep than anything on the market and was non-addictice, no side effects, out of your system in 4 hours.

              1. Anders K

                I thought that another reason was how (relatively) easy it would be to overdose, especially combined with alcohol.
                I also read about the so-called “dawn effect” – that after getting your 3-4 hours of sleep on GHB, you would wake up – is this something you experienced?
                As a sidenote, I guess some people see that as a good thing, esp the ones enamoured of the Napoleon-like “sleeping habits of highly effective people” or whatnot.
                Sweet dreams, and easy sleep to you!

    2. David

      I’d very slightly rephrase that: Parliament doesn’t just pass laws, it can also refuse to pass them, which can have important policy outcomes. And these days it can also obstruct ratification of treaties under some circumstances, but it can’t negotiate them or require a government to do so. Whilst in the UK this is the exercise of the Royal Prerogative, the fundamental distinction between the role of a parliament and that of a government is pretty much universal. Put simply a parliament can incite, threaten or beg a government to do something in the international field, but it can’t require or legislate that a government should do so.

      1. vlade

        The only real thing it can to is throw a non-compliant govt out, and try to get a compliant one in. Which it spectacularly failed to do in last number of months.

        1. David

          Yes, although in modern times votes of confidence haven’t been on foreign policy issues (I can’t remember when the last one was). As you say, there would need to be a vote against May’s government, with the intention of installing a government that had A Plan, no matter how summary. That’s the only way I can see out of this, unless May can somehow be brought under control.

  4. Clive

    The only other observation I can add is that the Irish “border problem” arose because the EU27 would not accept any notion of a Max Fac solution. The No Deal solution does, however, appear to be Max Fac or some variation of it. It is therefore contend-able that if the EU27 is willing to accept Max Fac, the “border problem” is at least vitiated if not totally disappeared.

    1. Anders K

      There might be simply a difference of “things we can legitimately say that we can accept, for anyone” (Max Fac when presented as part of UK-EU negotiations) and “things we’ll accept for now because our hair is on fire and the UK has a lot of incompetent buffoons” (Max Fac as part of no-deal Brexit).

      I doubt that the EU is willing to accept temporary Max Fac solutions as long-term ones, particularly as other nations will argue that they, too, deserve a free Max Fac without a purchase. Short-term emergency measures are much easier to argue as “special.”
      Perhaps, cynically speaking, the EU wants to roll in Max Fac on their terms and sufferance rather than accept what the UK was offering?

      1. Clive

        The TFEU is, like all international treaties, subject to a requirement of good faith dealing (or the equivalent version of it in the language of such instruments).

        For one party to hold another to a higher standard than that to which it is willing to hold itself to is not usually compatible with that principle.

        If the EU27 shows up in front of the International Court of Justice with a story about “short term” measures vs. “long term” ones, it will need to specify how short the short term is and what the long term measures are, and how they are different from what the U.K. is proposing. If the “long term” measures are different from the “short term” measures — and that implies a harder border than at day-1 — the Republic’s government will also have to show how they are compliant with the Good Friday (Belfast) Agreement and the principle of mutual consent.

        If, and I’d be the first to agree it is an “if”, this ends up moving from the political sphere to a legal one, finessing only gets you so far. But the EU either rules-based organisation or it isn’t. It gets an easy ride from its pet court, the CJEU, but it can’t rely on that from the ICJ which might end up being the superior court in a dispute between the U.K. and the EU27.

        1. Anders K

          Not entirely sure what you mean by holding another to a higher standard – I would assume that most courts would be understanding of short-term solutions not being perfect and certainly to them leading to a different outcome in a longer term.

          All of this assumes that the UK does not have a plan for handling the border, of course – more importantly a plan that will pass ICJ muster (and here the EU will try to make sure that any such plan would not imperil the Single Market). I think that the strategy is to try to make out the UK as being the party that broke the treaty first, forcing Irelands hand, or somesuch.

          I personally don’t see a way for the GFA to survive no-deal Brexit (barring Irish reunification), and then it becomes an exercise in blame-shifting, where the EU and Ireland seem to have the upper hand. Once again, this does not mean that the EU will actually “get away” with it, or will not face the consequences, just that they think they will.

          1. AdrianD.

            As far as the international legal niceties are concerned it might be worth remembering the UK Gov’s recent ‘flexibiliy’ with respect to the ‘rules based’ order. They can either ignore (Assange’s illegal detention) or just reject (the right of return for the Chagos Islanders) whatever the UN or ICJ decide. Of course the EU are a significantly more powerful opponent than these two belagured victims, but now they’ve got a taste for it I wouldn’t put it past Westminster to do whatever they like regardless.

        2. Ape

          I don’t get this argument. After brexit, the tfeu doesn’t apply to the uk – thus no case.

          So are you suggesting that the icj could force the eu ro accept max fac before brexit on the principle of rumors of a max fac like settlement may be reached after brexit?

          That doesn’t seem to me how courts work in moat of the world. That sounds non-justiciable.

          1. Clive

            Article 50, specifically the negotiation of the Withdrawal Agreement, is provided for under the TFEU. The UK government could, if unreasonably denied an extension, still therefore request a reference to the CJEU in the first instance and then, if it wasn’t happy with its judgement, to the ICJ.

            It’s not that the UK government would need a slam-dunk argument guaranteed to prevail. It’s not even that the UK government would need a reasonable prospect of success. All it would need is grounds for a referral that were genuinely held and not obviously vexatious. Enough to give the Commission and the Council pause for thought, in other words. A 6 to 9 month extension, as a minimum, would be quicker to expire than CJEU and ICJ referrals. It would be very difficult to envisage circumstances where such a referral would be summarily dismissed with prejudice.

            Or, by the sounds of it, the UK government could exit under No Deal then after-the-fact pass the Withdrawal Agreement. I’m not convinced by this but if true, there’s no such thing as No Deal. The Deal — and the Withdrawal Agreement is a Deal, it contains all elements necessary to be a Deal as a stand-alone arrangement within its nigh-on 600 pages — can be passed if the UK exits with No Deal, finds it doesn’t like it all that much, then can simply, apparently, pass the Withdrawal Agreement as the Commission is seeming postulating, in order to rid the EU and, presumably, the UK (as this would be their incentive), of the “temporary” Max Fac. I’m pretty credulous when it comes to Brexit, after everything we’ve seen, but this seems a stretch.

            Alternatively, perhaps what’s suggested is the Irish Protocol would be adopted by the UK in, one is guessing, desperation at how awful No Deal turns out to be. But the Irish Protocol isn’t alone sufficient to negate the Max Fac on the border. The Protocol relies on other provisions in the Agreement (such as articles governing the exchange of data, security measures, transportation standard recognition, citizens rights and so on) which are in the other Agreement articles. So these would have to be in the ad-hoc “temporary” arrangements. But they wouldn’t be that temporary, they’d be required for as long as the Protocol was required.

            I’ll gloss over why the UK would, allegedly, having left with No Deal, taken the hit which that would entail, then think to itself, “oh, I know, let’s drag ourselves back, albeit semi-detached, into the EU again via the Withdrawal Agreement or the Irish Protocol”. The reason, doing a bit of presupposing, is that No Deal is sending the UK on a path to becoming Mordor. But passing the primary legislation would take three months if uncontentious to six months if signing up to the Withdrawal Agreement or the Irish Protocol (whichever it is supposed to be) is challenged left, right and centre in Parliament. So it’s not a quick fix. And if Parliament refuses to pass it, not a fix at all.

            The longer this all goes on, the less and less temporary the EU’s Max Fac starts to look and the easier it is for the UK government to petition the ICJ that the EU acted and continued to act in bad faith.

            All this is merely to try to explain why, should the council give a “surprise” lengthy extension on the 12th when the UK has, prima facie, done nothing more than be its customary useless and disorganised and indecisive self, it should not be be that much of a surprise. There’s plenty of perfectly good reasons, if you poke around in the weeds to find them.

    2. Mirdif

      Wishful thinking. Max Fac is a hard border. Varadkar is a politician and therefore he’s been teling lies. Coveney gave the game away months ago when he was talking about when they have to announce it. At most it will be implemented in phases but implement it they will…unless London sticks the border in the Irish Sea in no deal circumstances.

      Also, back on planet Earth the British government is also getting ready to put in a hard border as related by Liz Truss. Dismiss it as the pontifications of a silly MP if you like but don’t be surprised if it happens.

      I have to say for someone who is happy to tell others that they are polluting the comments you don’t half come up with some trite stuff.

      1. Clive

        Hard border, soft border, squishy middle border — the semantics are irrelevant. It is a border solution which the EU27 has (or would) accept.

        You cannot be in a position of saying “there the is only one solution to the border which we’re willing to accept, it’s got to be the one in the Irish Protocol in the Withdrawal Agreement — and that’s that” and then simultaneously say “oh, but here’s another solution to the border which we’d also accept” and not end up with a glaring inconsistency.

        The UK government and the DUP are dumb. But they’re not that dumb they can’t spot that one. And even Angela Merkel is popping over to Dublin on Thursday to ask, in a more diplomatic phrasing, “WTF?”

        I’m naturally disappointed to find I’m reduced to being trite, I’m obviously missing something here so would be grateful for your help in where my logic is failing me.

        1. Mirdif

          The bit you’re missing is that this is a border solution which London has said it doesn’t want. It might have some nice PR but it is unacceptable to the government of the United Kingdom. Furthermore, in order to reduce friction you would need a cooperative environment on both sides; under no deal, Nah Gah Happen.

          Prediction: In the very small chance of no deal happening London will go back to the EU and offer to stick the border in the Irish Sea. This will prevent smuggling to the British market and allow easier collection of tariffs.

          1. Clive

            But the U.K. government explicitly proposed Max Fac

            I’m trying, I really am. But I can’t get the logic in the EU27 saying “Max Fac for me but not for thee”.

            I’m not saying either the U.K. or the EU27 like Max Fac. But if there’s not a tautology in the EU27 refusing to, for example, countenance reopening the Withdrawal Agreement (especially as it will be very difficult to present it to the U.K. parliament again unaltered) to potentially incorporate a Max Fac-based border solution which will allow other Deal options to be viable on the 10th April, because the EU27 claims to have an aversion to Max Fac when on the 12 April, it will implement, erm… Max Fac, then I don’t know what it is.

            If there’s an illogicality here, I don’t think it’s mine. But hey, I’m not the EU27 trying to sell this one…

            1. Mirdif

              Max Fac is just another name for a border of exactly the same type as elsewhere. Not to say that the politicians in the EU are liars even though they are and especially so when talking about as frictionless as possible. Besides, they expect a sea border proposed by London so they’re holding off on sticking in the infrastructure.

              Anyway, this topic is moot as no deal remains quite low in probability.

          2. Yves Smith Post author

            It’s already been reported (IIRC in the Guardian) that the EU, led by Barnier, is “war gaming” what happens in the event of a crash out. The assumption is that the UK will desperately need provisional deals (NOT mini-deals, these would be of short duration similar but in addition to the interim arrangements for aviation and other sectors that the EU has planned for its convenience).

            To get those, the UK will have to agree to pay the 39 billion exit tab + accept the backstop. So that’s another reason that getting all bent out of shape about the mini Max Fac or whatever fudge Ireland and the EU cobble together to deal with no deal will be unimportant. It will probably be operative for only a couple of months and clearly a temporary fix for unprecedented circumstances.

        2. ChrisPacific

          The hard Brexiters have already noticed – it’s discussed in the Connelly piece.

          It is all politically tricky for the Government.

          Mention the need to protect the single market and there is a clamour that this means a hard border; mention that all sides will find ways to avoid such a border, and there is a clamour that the backstop is unnecessary.

          “It’s this endless ping-pong between these two messages which are neither helpful nor right,” says one exasperated diplomat. “We need to continue to flesh out that middle ground so that people understand.”

          One potential diplomat-speak translation of “unhelpful question” is “question for which I don’t have a good answer.”

          In fact the backstop doesn’t really cover short term solutions, since it’s designed to come into effect after the WA ends if no border solution has been found. So “we will have no border in the short term” is not really a counterargument, since the backstop is an attempt to solve a long term problem. But it does rather depend on the EU being able to come up with a long-term solution of their own. Of course, as Yves points out further down, the plan for the long term is likely to exploit the considerable leverage they will have in a No Deal scenario to get the UK to sign up to the backstop.

    3. vlade

      The fact that you want to avoid an outcome does not mean it can’t be forced on you. But at the same time, it does not mean you’d not try for a better one.

      Also, it does not mean that if the worse outcome is forced on you you have to just accept it and shrug it away.

  5. PlutoniumKun

    Thanks, another fantastic overview Yves. Its very clear that if there is any way out of the chaos, it won’t be via Parliament. It will be up to the EU to drag them out of the hole they’ve dug themselves, but I doubt there is the willingness to do that.

    I’d just add a link – todays very good John Harris article in the Guardian about the failure of Remainers to present a coherent and emotionally resonant argument for what they want (which is A.50 revocation, even though most seem very reticent to say so).

    As for the Customs Union option, my assumption has always been that its smarter supporters have seen it as a trojan horse proposal to create a BINO by stealth. I could be entirely wrong about that of course, but some of its proponents are not complete idiots so they must be aware of what it means in practice.

    1. Yves Smith Post author

      Your point about “Customs Union” = stealth BINO is a fair one but the problem is the use of a term that means something quite different in other contexts is what happens if its proponents get traction. They run the risk if that if they get anywhere there will be people who signed up who thought it meant something different, and the proponents start pulling apart. It wasn’t helped by the fact, IIRC, that the Withdrawal Agreement’s fudge is called a “customs arrangement”

    2. Anders K

      Using a Customs Union to get a BINO seems like a very bass-ackwards way of doing it. First you get something that won’t actually do what you say it does, then you go “oops, sorry mates, forgot to tell ya that we need to follow every other rule, and – surprise! Join in that sweet Single Market stuff, too… and that includes EUCJ, you know, that sovereignity killing institution? Yeah, that too.

      As a starting point for ending up somewhere closer to the EU, two years ago/before the Article 50 invocation? Sure, I could see that. Nine days before Brexit-time (The sequel! Now with 100% more Gove, and the other faces you love to want to punch!), however, is not the time to bring to the EU a paper saying “we want stuff that doesn’t do bad things to our trade. hlp plz.” which is what saying “we want a customs union, but better” really would mean at this point.

      if Parliament can not even consider getting rid of Theresa May (the reasons do not matter; from an outside POV they ), and are not capable of coming up with another plan that are not napkin-sized ideas, I really do not see that the benefits of kicking the can of Brexit further are worth it, compared to getting the MEP election messed up (the re-reallocation of seats, the likelihood of getting protest-voted MEPs in, probably more Farage), having to negotiate with a UK Government that doesn’t have the confidence of its Parliament but also doesn’t have No Confidence (formally speaking) from it.

      The bad possibilities of a delayed or cancelled Brexit that I can see that the EU envisions is this: a) Brexit happens, but after UK MEPs are elected. Nigel Farage et al is carried, kicked and screaming about “EU bullying” from his place in the EP. b) Brexit doesn’t happen, and Nigel Farage (and friends) keep on kicking and screaming in the EP about “EU bullying” and “just leave” to all and sundry.

      Compared to that, getting the UK out the door prior to the MEP elections seem like a better idea, particularly if one has the belief that EU members can handle Brexit (poorly, perhaps but still – survivable) – remember, the reality doesn’t matter, just the perception of it in this case. If the EU can spin it that it is the UK that failed to do what was agreed, and thus caused Brexit on its own, so much the better.

  6. The Rev Kev

    Those MPs may not be the sharpest knives in the draw but May is certainly not the sharpest knife in the electric toaster. I have the feeling that she will blow up any possible solution except her own one, no matter what the consequences are.
    From this post, it seems that those MPs have realized what the true threat is – the Judean People’s Front! No, wait – I meant to say the increased popularity of the Labour party. Even the DUP has woken up to this threat. But apparently Parliament is voting still on stuff that can never happen which is kinda pointless making them seem even more irrelevant.
    I sometimes wonder if it is time for some radical procedures. Maybe the next time they lock the doors for a vote, keep them locked until they can agree on a plan that will work. Or maybe do a one-off voting by secret paper ballots (non-binding) to get a true lay of the land. At this stage can such measures hurt?
    My knowledge of British history is not that deep but I have been trying to think of when there was such an obstructionist Parliament and as near as I can recollect, it must have been in the second half of the 1600s which led to a radical solution-

    1. Which is worse - bankers or terrorists

      Theresa holds all the cards and knows it. Only she can negotiate with the EU. Effectively she can’t be removed right now. The indicative votes will never get a large majority.

      She can just run down the clock and say: “My deal or no deal” on April 11. It’s quite simple.

  7. Yves Smith Post author

    There is a big difference between “accept as a result of negotiation”‘ and “have to cobble together to deal with an emergency”. Contracts regularly provide for outs in force majeure events like war or securities exchanges being closed for days due to 9/11. Brexit falls in that category.

    So you need to look at where the Irish border is in say a year+ to argue for any precedent.

    1. Clive

      I suspect it would be difficult to claim unforeseen or unforeseeable circumstances or force majure being triggered in response to an event which is well-signposted like the Council meeting on the 10th April. My argument is more along the lines that the U.K. government can give a reason for a lengthy extension and (to use the term in the last Council communique) “indicate the direction” based on new options now being pursuable. By the 10th, the EU27’s border No Deal preparations will be, if not actually de jure, then as a minimum known in outline. If they’re not, it’s not going to be because they’re not drafted, but because it’s just too awkward for the EU27 to publish them.

      It’ll take some masterly lawyering to convince anyone an event was out-the-blue when the party trying to advance that claim not only knew of its possibility a fortnight in advance, had prepared detailed plans to be executed in its eventuality and — worse — precipitated the event itself by denying a request to extend its proximate cause (the Article 50 deadline).

      Not saying, of course, the U.K. government will definitely ask for a long extension. But if it did want to do so in order to revise the Withdrawal Agreement and amend the Irish Protocol or the backstop, it’ll be hard to the EU27 to, legally, refuse point blank. And if the EU27 says, as it always has done, that the Withdrawal Agreement is not going to be reopened, then you can’t claim force majure when it’s as a result of your own actions, or inactions.

  8. David

    This is a classic example of the confusion that often arises in politics between process and content. Essentially, the EU is trying to talk about process, whilst the UK is fixated on content. Eventually, the UK will have to say something on content if a crash-out is to be avoided. Bear with me, because this is fiddly but important.
    The story originally began with a political decision (content) to leave the EU. Under Art 50, once invoked (process) the UK and the EU had to negotiate a withdrawal agreement (process), which would govern how the exit and transition was to be managed (content). There was then a process envisaged to work out a future relationship (content). The WA was agreed and put to Parliament (process) where it was rejected because MPs didn’t like the content. But the process demands of Art 50, as amended, remain in force, so the UK will leave on 12 April (process) without any idea of what that means in practice (content).
    So what the EU is saying now, is “OK, according to process, you are leaving on 12 April. We’ll give you more time if you tell us what processes you are going to use it for.” May’s first response was “We’ll keep submitting the WA”, which was just about acceptable as a process. But that failed, so now the answer is presumably “We’ll let you know about the result of the Unicorn Championship we’re holding to determine what the UK’s relationship should be with you at some indeterminate time in the future. Except that the government is not committed (content) to any of the options that emerge from this process.” “Yes”, says the EU, “but what are you proposing to actually do and when?” “Sorry”, says the UK, “didn’t hear the question. We’re too busy judging unicorns.”

    1. ChrisPacific

      ‘Now the cleverest thing of the sort that I ever did,’ he went on after a pause, ‘was inventing a new pudding during the meat-course.’

      ‘In time to have it cooked for the next course?’ said Alice. ‘Well, not the next course,’ the Knight said in a slow thoughtful tone: ‘no, certainly not the next course.’

      ‘Then it would have to be the next day. I suppose you wouldn’t have two pudding-courses in one dinner?’

      ‘Well, not the next day,’ the Knight repeated as before: ‘not the next day. In fact,’ he went on, holding his head down, and his voice getting lower and lower, ‘I don’t believe that pudding ever was cooked! In fact, I don’t believe that pudding ever will be cooked! And yet it was a very clever pudding to invent.’

  9. Avidremainer

    Rev, you’re thinking of the period 1630-1690. Then as now ( I believe May thinks she is an autocrat) a stiff necked incompetent occupied the throne and because he believed in the divine right of Kings thought he could do anything. Such was his obduracy that the civil war-1642-1648 ensued. He lost and literally lost his head in 1649. In 1687-90 his son tried to repeat his father’s antics. James II was driven into exile.
    The American Republic is the direct descendent of Charles I’s opponents in Parliament and the country. Many of the anti George III arguments expressed by the ” Revolutionaries” aka freedom fighters have direct references to the arguments expressed in England in the 1640s.
    Names to look out for-Cromwell, Pym, Lord Fairfax, Hobbes, Locke, Earl of Stafford, Marvel, Milton and Charles I.
    I take issue with your description of the current Parliament as ” obstructionist”. The obstructionist Parliament of the 1640s gave birth to a far more wonderful thing, The American Republic. For most of my life America really was a beacon on the hill. It has fallen a long way from that lofty place in recent years. The current Parliament is dealing with a rogue Prime Minister who is an outrageous actor in current events.

  10. Marc

    I will caveat this by saying that I am clearly following this a lot less closely than Yves and some of the commentators above. But to the arguments laid out above, my impression was that Labour essentially acceped the WA (see but that the vote on Friday was to not accept the de-linking (which they translated into a “blind brexit”). So if something passes today with labour support (and it was predominately labour that voted for the CU and if you look at those who abstained and some other aspects of the arithmetic, one would have thought that the chances of passage are strong), wouldn’t one expect support for the WA or the combined proposal to be a given? My greater concern would be that labour will make their vote or connect their vote on CU to a referendum which may not lead to a majority. On the point that the CU is non-sensical, it would seem that at this stage the EU just wants the WA to pass and understands that future arrangments are up for grabs and the counter-party on the UK side may change anyway. So wouldn’t the only relevant point be that parliament agrees on something that allows the WA to get through (even if CU is non-sensical) and the contentious issues of the future relationship will have to be dealt with further down the line?

      1. Clive

        Yes, Emily Thornberry has just waffled her way through that same question on BBC News channel. Labour “can’t” vote for the Withdrawal Agreement, according to Emily who proved once and for all it is humanly possible to talk out of both sides of one’s mouth at the same time. Then again, this is a prerequisite for Labour front bench’ers.

        Just to elaborate, for those who haven’t yet reached for the Xanax by this point, the reason why Labour can’t vote for Withdrawal Agreement is because Theresa May brokered it. There wasn’t, or if there was, I couldn’t glean it, anything particularly wrong with the Withdrawal Agreement. Except that it wasn’t Labour’s.

        And yes, approach anything you read on Guido in the same fashion as that you might see scrawled onto the wall of the gents’ toilet. Amusing and interesting in small doses but you won’t want to read an entire blog comprised of such material. Then again, apparently some people do, hence its continued and rather inexplicable ongoing existence.

        1. Monty

          Is this Guido the same fellow who was recently elected to be ruler of Venezuela by Trump and Pence?

        2. disillusionized

          To be fair, by voting for the wa labour surrenders all leverage to influence the pd, which is what they want changed.

      2. Marc

        Just a random thing I found. Not even aware of it but what they are citing is very straightforward. I’ve heard the same comments (ie the WA is not an issue for labour) on Andrew Marr by Labour representatives for example. Don’t think there is much dispute around that. But I am genuinely looking for why my observation is wrong by people who seem to have a lot more knowledge of it than I have

          1. Marc

            Clearly she was justifying something that is not justifable by claiming that parliament and labour were not consulted as an excuse so really not answering the question, no? Another way of saying that labour want to have their say on how things will move forward. So if they get to vote on something they’ve approved, problem solved and the WA is the agreed transition to get there. And there was an article on the guardian today suggesting that the EU believes that if the solution is to incorporate CU, May 22 is still feasible. I’m not trying to be an optimist here but I do find the closing off of all doors overly pesimistic (though I’m an ardent remainer).

  11. Ignacio

    I find it amusing that the solutions leave aside the question of migrant rigths here and there. It seems to me that this is a feature. Isn’t it?

    1. Clive

      Oh, I wish that were true. I think Yves sensibly glosses over the dog-whistle stuff (there’s plenty of it). But on domestic media (let alone the Daily Express type of rabble) you can’t hear any discussion of, say, Common Market 2.0 without someone mentioning “freedom of movement”. But it has become akin to the crazy aunt locked in the tower of a Victorian novel. Everyone knows its there, but no-one is supposed to mention its existence, at least not in polite company.

      Being serious for a moment, or at least as serious as this current genre allows, the tacit agreement of the “nice” mainstream media outlet like BBC and Sky to exercise restraint not that indistinguishable from self-censorship is, I don’t think, particularly helpful. It’s bad enough trying to engender a high quality public debate (which, I have to say, does seem to have improved, not before time, in the last couple of months) when there’s no unmentionables. When certain topics have to be pussy-footed around, it’s that much harder.

    2. Epistrophy

      What do you mean by migrant rights? The UK government has put the following in place:

      If you’re an EEA or Swiss citizen who enters the UK after 12 April, you’re eligible to apply to the EU Settlement Scheme to continue living in the UK. EEA or Swiss citizens and their families will be able to remain in the UK indefinitely if they are granted settled status under the EU Settlement Scheme.

      If you’re an EEA or Swiss citizen who arrives in the UK after 12 April but were previously living in the UK before Brexit, you can also apply to the EU Settlement Scheme.

      The EEA is defined as the EU countries plus Iceland, Norway and Liechtenstein. Irish citizens will not have to apply under this system – they will continue to have the right to enter and live in the UK under common travel arrangements.

      Link to for more information.

      1. Ignacio

        I am thinking of all those already living there as well as brits living in the UE. As you can see in your text “ifs” appear. For instance, UE citizens already living in the UK will have to apply for residence and there are “ifs” that may not be important or may be. British in Spain will retain residency status up to 2020, then, it depends.

        The situation of migrants is anything but settled.

        1. Epistrophy

          There is UK legislation with respect to merit-based or skills-based immigration that comes into force during early 2021 and I suspect that this is independent of the Brexit issue. No doubt, should the UK default to a WTO exit, there will be continued negotiations on many issues, migration being one. For example, 1 million British tourists visit Portugal each year and Portugal has announced that they will introduce special fast-track lanes in Funchal and Faro just for these tourists.

          You are right that it is far from settled but it will be resolved over time, just like everything else.

          To me, the most serious issues to be settled that have the potential to result in real conflict are the fisheries policy and Gibraltar. Everything else, I believe, could reach a workable, perhaps even win-win, compromise, including European migration.

  12. Epistrophy

    Under the Fixed Term Parliament Act, the Prime Minister can no longer ask to dissolve Parliament under the royal prerogative.

    Precisely. Under that Law, PM May cannot threaten to hold a General Election. Only a 2/3 majority of Parliament can make it happen. I do not think that she has any chance of garnering that support – especially with the mood of the country being what it is – Parliament voting to hold elections now would be the equivalent of turkeys voting for Thanksgiving. So what real threat can she make? That she will resign? So what? Based upon her performance in the election of 2017, she will not survive as PM if new elections ensue (she barely survived the last election). And the new Parliament would return to work shattered into pieces with no clear majority (and government) in sight.

    Under the current state of affairs, she has the right to remain in office until 2022 unless she is forced from office by her own party next year.

  13. orange cats

    Bercow selects four amendments for indicative votes debate
    John Bercow, the Speaker, announces he has selected four amendments.

    C – Ken Clarke’s for a customs union

    The Tory former chancellor Ken Clarke’s customs union plan requires any Brexit deal to include, as a minimum, a commitment to negotiate a “permanent and comprehensive UK-wide customs union with the EU”. This was defeated by the smallest margin in the first round, falling just six votes short.

    On 27 March, MPs voted against this option by 271 t0 265.

    D – Nick Boles’ for common market 2.0

    Tabled by the Conservatives Nick Boles, Robert Halfon and Dame Caroline Spelman, Labour’s Stephen Kinnock and Lucy Powell plus the SNP’s Stewart Hosie. The motion proposes UK membership of the European Free Trade Association (Efta) and European Economic Area. It allows continued participation in the single market and a “comprehensive customs arrangement” with the EU after Brexit – including a “UK say” on future EU trade deals – would remain in place until the agreement of a wider trade deal that guarantees frictionless movement of goods and an open border in Ireland.

    On 27 March, MPs voted against this option by 283 to 189.

    E – Peter Kyle’s for a confirmatory public vote

    It has been drawn up by the Labour MPs Peter Kyle and Phil Wilson. This motion would require a public vote to confirm any Brexit deal passed by parliament before its ratification. This option, tabled last time by the Labour former foreign secretary Dame Margaret Beckett, polled the highest number of votes although it was defeated by 295 votes to 268.

    On 27 March, MPs voted against this option by 295 to 268.

    G – Joanna Cherry’s for revoking article 50 in the face of no-deal Brexit

    The SNP MP Joanna Cherry joins Grieve and MPs from other parties with this plan to seek an extension to the Brexit process, and if this is not possible then parliament will choose between either no deal or revoking article 50.

    An inquiry would follow to assess the future relationship likely to be acceptable to Brussels and have majority support in the UK.

    On 27 March, MPs voted against this option by 293 to 184.

  14. barrisj

    The always helpful Chris Grey:

    The horror show continues

    The government’s failure to win the latest vote marks a further deepening of the Brexit crisis. It was not, formally, ‘meaningful vote 3’ because of the ruse of splitting the Withdrawal Agreement (WA) from the Political Declaration (PD). Had it succeeded, it would have created a very nasty trap in which, come next May, no further extension would be possible, because no preparations for the European elections would have been made, and yet the UK would still have to complete its domestic withdrawal legislation before then. In effect, back to May’s deal or no-deal.

    It was a shabby ruse, typical of the endless tactical game-playing of this government, which deserved to fail and it did. There is a rich irony in the fact that this was in large part because of the continued rebellion of the most hardcore segment of the hardcore ERG. For, had they voted it through then, by subsequently rebelling on the Withdrawal Bill legislation they would have had a decent chance of getting to their no-deal nirvana. Perhaps they were too dim to work that out, perhaps they are simply beyond all reason and calculation.

    On the other hand, there is also a certain pleasure to be taken in the way that Rees-Mogg, Dominic Raab, Boris Johnson and others compromised on their ‘principles’ – those speech marks should be especially heavily emphasised in the case of Johnson – but to no avail. They will now be in line for the ‘betrayal’ vitriol they have done so much to whip up against others. Few will weep for them.
    The proposition which gained the largest number of votes (268, though there were still more against it) was not about the form of Brexit but the process; the Beckett proposal that any agreed Brexit should be subject to a confirmatory referendum. I suspect that come the second stage of the indicative votes process this, in some form, will come to command a majority.

    For, despite some blathering from Brexiter MPs and a lot of quite misleading media reporting, this was always envisaged as being at least a two-stage process and on Monday (and perhaps on further days) the next stage creates the possibility of MPs coalescing around a policy and perhaps a process. Of course who implements that, and how, remain very big and open questions.

    With May’s deal defeated again, one outcome, potentially, is that it comes back modified with something like Beckett’s proposal (i.e. the deal with the Kyle-Wilson amendment included), perhaps with May still in post, accepting another referendum through gritted teeth as the only way to get her deal through. I’ve thought for a little while that was possible. It seems less feasible that she would preside over that if the deal was amended along the lines of the Clarke proposal (i.e. with the Political Declaration re-negotiated with the EU to indicate a permanent customs union as the direction of travel).

    (and Grey concludes)
    The main conclusion to be drawn from this week’s fiasco is the point which I have often made on this blog. The longer and deeper the crisis – damaging as its effects are and horrible as it is to live through – the greater the chance that Brexit is averted. In a post on 20 July 2017 I wrote something which seems to have stood the test of time:

    “… for all that it will be a white-knuckle ride, committed remainers might have as their best hope that the government continue to display division and incompetence and bring Britain to the edge of disaster … Of course this is very high risk stuff, not just for remainers but more importantly for the whole country. Precisely because it means going right to the brink of disaster in order to avoid disaster, it inevitably means damage. The jobs and investment lost, the companies relocating, the skilled workers leaving, the shredding of national reputation will all have long-term negative effects. But, against that, we might just get out of the even worse precipice that the Brexiters want to push us over.”

    If so, and again to reprise a point made before, that will only be the end of the beginning. It will only avoid disaster and still leave us with the job of reconstructing our battered and bitterly divided country.

  15. Synoia

    There are three options:
    1. Remain
    2. Negotiated Exit (As I understand it there is one version of this, the EU/May Government agreement)
    3. Crash out.

    If appears the UK parliament wants none of the above. Personally I see (2) as impracticable, because the EU wants an example of how difficult and expensive it is to Exit the EU.

    The default appears to be crash out.

    How much patience has the EU for this continuing tragedy?

    1. Epistrophy

      The real tragedy is the lack of leadership in the UK. The people have not been engaged (by their elected leaders) at all throughout this process and into the void steps a rabid British press. This propaganda machine has, in plain sight, framed the argument in terms of ‘soft’, ‘hard’ and ‘no-deal’ (or lately ‘crash-out’) when in fact none of these scenarios exist in reality; these terms are designed to establish a basis of discourse that will move the Overton window back to staying in Europe. They have had 1000 days so far but it is not enough so another 1000 days is in the works (option 4 to your list above – a lengthy extension before ‘leaving’).

      May was the wrong person for this job and, in future, historians will not be kind to her.

  16. dcblogger

    Did I miss a Brexit post that explained how some part of the oligarchy thinks that they can profit from Brexit induced chaos? It seems to me that at least some part of the British elite thinks that Brexit is a cunning plan to gather up more $ and power. So how would that work?

    1. orange cats

      Volatility causes opportunity? It has something to do with billionaires always finding a way to profit from a downturn, methinks. At this point it seems to be mostly foreign investors who are active.

    2. WobblyTelomeres

      Or perhaps not lose money as with feared Brussels restrictions on the City game?

    3. Yves Smith Post author

      Yes, there are people who think they will benefit from getting the UK out of EU labor and environmental regs. There is also the fantasy that the UK can become a Singapore on the Thames….but I think that is more for marketing purposes.

      Remember, Britain also had young aristocrats enlisting in droves in WWI. They were convinced it would be a quick, easy victory and they wanted bragging rights with their friends and girlfriends/wives.

      1. Joe Well

        Remember, Britain also had young aristocrats enlisting in droves in WWI. They were convinced it would be a quick, easy victory and they wanted bragging rights with their friends and girlfriends/wives.

        I’m old enough to remember when the occupation of Iraq would be over in 3 months and have paid for itself…

        1. eg

          Not unlike the picnickers at the First Battle of Bull Run who got rather more than they had bargained for …

    4. fajensen

      I have some bets via an ETF on the OMX index going down over Brexit. Enough to pay off one of the mortgages if OMX goes lower than 1200.

      So far, so wrong. :p

  17. Joe Well

    My own tiny bit of Brexit uncertainty:

    I’m in the US and I have a small ecommerce business.

    A certain % of sales are in the EU (about 20% of those in the UK).

    I am getting a new shopping cart and am wrestling with whether to start offering prices in euros for EU customers, which is supposed to increase sales by taking the burden of the foreign currency conversion off the customer, especially since one thing I sell is a monthly subscription.

    But with Brexit coming, I don’t know if I will be making a mistake by locking myself into subscription pricing with customers at 25 euros if the euro falls even further against the dollar than it has over the past year (it’s at $1.11 from a high of almost $1.25 a year ago). So I’m going to hold until after the 12th and see what happens…

    Multiply that by 1000X for businesses across the continent…

    1. Epistrophy

      Multiply that by 1000X for businesses across the continent…

      And you’ll have some idea what is going through George Soros’ mind right now …

      But the British Pound has oscillated between roughly $2.10 and $1.20 since 2008. During the late nineties/early naughties the Euro dipped to roughly $0.90; since reaching a high of around $1.60 before returning to where it is now, I believe. My personal view is that the dollar cross-rates of both will be rather bumpy but that those lower boundaries will be tested again by both currencies in the next few years, barring any truly exceptional events in the USA.

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