Brexit: a deal or no deal?

17/08/2018

In the murky waters of the current Brexit impasse, there is little of substance from which firm conclusions can be drawn, especially in terms of the growing debate about the "no deal" scenario and whether it might happen.

The resultant uncertainty thus provides unending opportunities for speculation from a wide range of pundits. These have free range to parade their own lack of knowledge with varying degrees of authority, drawing plaudits from commentators who know even less then they do.

Many rely on our distressingly low-information society to promote their agendas, repeating known falsehoods with Goebbels-like consistency. And lies told often enough by a wide enough range of people acquire a patina of legitimacy that approximates truth. By this means, the familiar lie outlasts attempts to rebut it.

Yet, despite all that, there are constants that rise above the uncertainty, the ignorance and the lies. They can impart clarity to otherwise muddled and disingenuous arguments and contradict the sirens which, for their own particular reasons, are hastening to inform us that a "no deal" scenario cannot and therefore will not arise.

In a sense, though, we are dealing with a false dichotomy. I myself have written that not only is the "no deal" scenario not an option – it does not even exist. There are no circumstances short of war, I wrote at the end of June, where the UK can cut off relations with its European neighbours. Brexit is not about "leaving" Europe. It is about redefining our relationship with the EU and its Member States.

In practical terms, I asserted, we need to make arrangements for the movement of goods and people, to maintain our electronic and communications, to ensure our mutual security and the myriad of other linkages that make modern society a reality.

The point here was (and still is) that there can be no such thing as "no deal". We have to deal. The question is whether we negotiate before or after we leave the EU – whether we do it in a controlled fashion or in crisis conditions after things have stopped working and chaos has descended. Either way, we end up with deals.

The issue which ten arises is that, if we find ourselves making deals after Brexit day, they will be made in a crisis atmosphere and can hardly be more favourable than anything we agree before we leave.

Now that these obvious truths are beginning to dawn, we get the Johnny-come-latelies such as Iain Martin in The Times, burbling about a "no-deal Brexit deal".

His thesis - so lacking in originality that it is shared with others to a greater or lesser extent – is that if the Brexit talks fail in October of November, there will be an attempt to improvise a transition period, so that from March 2019 regulation can essentially stay the same for a limited period.

This, effectively, is a status quo scenario which would supposedly give business and security services on both sides certainty and time to prepare for no deal, or a free trade arrangement and security partnership in 2020. Then, from December to March, the two sides would "work quickly" through key areas such as aviation, finance, pharma and security, to come up with working arrangements.

However, if we apply known constants to this Pollyanna scenario, certain points emerge which define the EU position. The first point is that there can be no withdrawal agreement without a settlement of the Irish border question. The second, which follows from the first, is that there can be no transitional period without a withdrawal agreement.

Significantly, in Mr Martin's article and his advocacy of a "no-deal deal", there is no mention of Ireland. He thus deals with the border question by ignoring it. Instead, he wants us to believe that the EU, having set out its unalterable conditions for a transitional period, would then abandon its conditions and enter into a completely new set of talk covering issues which, hitherto, it has refused to discuss in detail until the UK has left the EU and become a third country.

Measured against the constants, the Martin thesis – supposedly drawn from discussions with Ministers – is absurd. A similar idea, promoted by Lee Rotherham - of last-minute talks to deliver a "Strongly Mitigated No Deal" - is equally absurd, while an error-strewn article by plagiarist Ben Kelly is also devoid of realism.

The point that all these pundits completely miss is that, even if M. Barnier wanted to entertain talks on the issues which are so important to the UK, he has no mandate to do so. He would have to go back to the European Council with a proposal for a new mandate.

This would have to be kicked around the member states and then approved in principle by the General Affairs Council, before being submitted to a full European Council meeting for approval. Only then would a new round of talks start which – within the context of Article 50 – would have to be incorporated in a withdrawal agreement and ratified by the European Council and the European Parliament.

Assuming that the current talks do fail in October – and this is widely expected – it is also expected that there will be further rounds, stretching into November and even to the December Council. There is even a possibility that a final attempt could be made in early January.

In the event of the expected breakdown, it is then that a new mandate would have to be discussed and formally proposed. And even if agreed – which is unlikely – there simply isn't time for further rounds of talks and the ratification of any agreement.

Airily, Martin thinks he has pre-empted such minor difficulties. He resorts to a clever-dick parody, writing: "Can’t be done, comes the cry from the Brexit nerd industry in the UK and the fanatics in Brussels".

"On the contrary", declares our pocket genius, seeking to put his ignorance on equal footing with our expertise, "elected governments can get a lot done rapidly when they need to", adding, "look at the response to the financial crisis of 2008". But, when it come to how this response can be managed, we get no detail at all.

All we actually get is high-flown references to "the primacy of common sense" and the "spirit of constructive co-operation", but nothing of the powdered unicorn horn and the fairy dust that will be needed to make his fantasy happen.

Sadly, that puts us back in the land of uncertainty, where no amount of clever-dick speculation is going to substitute for cold, hard analysis, based on known facts – the most salient of which is that the EU and its Member States are no more ready for a "no deal" Brexit than is the UK.

But those who then take this as a situation which will force the EU back to the negotiating table with the UK are lacking in vision and understanding. We need to think in terms of what has been advocated for the UK by the likes of the "ultras" – that we should take certain unilateral actions to safeguard our national interests.

Not once though does it seem to have been mooted that unilateral action cuts both ways. If the UK can act unilaterally, so can the EU. And here, its most obvious action might be a unilateral extension of the treaties to the UK, treating it as a Member State for the purposes of trade and related matters. The agreement of the UK is not necessary and need not be sought.

From the stance of the EU, unilateral action has an obvious advantage. What is conferred unilaterally can be withdrawn in like manner. In its own time, the Commission can initiate the legislative adjustments needed to accommodate the withdrawal of the UK, and it can undertake sectoral negotiations to aviation agreements and like matters.

On a practical level, the Member States can make the arrangements, such as building and staffing the Border control Posts (as they will then be called), and hiring the extra customs officers.

When it is good and ready, the EU can then stage a phased termination of what amounts to its own unilateral transitional arrangements, keeping what it needs in place in accordance with its own timetable. It would not need any specific approvals from the UK beyond the sectoral deals that are negotiated.

All of this, I would not argue, will necessarily (or at all) come to fruition. The only point I make is that the EU is not bound to respond to UK initiatives and is quite capable of pursuing its own agenda to suit its own needs and convenience. By that token, we may well get our no-deal deals (plural), but they may well be on terms dictated by the EU.

As to the terms, most of them are already set – those that apply automatically to third countries. The EU is not going to re-write its rule book for our convenience, and no amount of fevered imagining by our self-important pundits is going to make the slightest bit of difference to the final outcome.