Brexit: the no deal miasma

04/09/2018

The domestic turbulence is starting earlier than even I expected, with the Johnson show in full spate as No 10 slaps down the "great charlatan" in what is regarded as a "rare public rebuke".

Considering that the Conservative Party Conference was supposed to be the big moment for Johnson, there is a thought that he is peaking far too early. The current crescendo of publicity is going to be extremely hard to sustain for the best part of a month, exposing the man to the risk of "Boris fatigue" by the end of September.

As it stands, open disloyalty to the party leader can only go so far before the progenitor has to put up or shut up. Johnson must either make the challenge, and put in his bid for leadership - or face an anti-climax, the effects of which even he will struggle to overcome.

To secure a leadership bid, however, Johnson and his fellow travellers have to surmount a hurdle that he shows no sign of being able to deal with. It is all very well savaging the so-called "Chequers plan" – that is easy meat. The problem is coming up with a credible alternative, countering Downing Street's jibe that he has offered "no new ideas" while Mrs May is offering "serious leadership and a serious plan".

If we discard the latter claim, that still leaves the oaf up the creek without a paddle. When it comes to a credible (or any) plan, he is quite incapable of delivering. His Monday dissertation in the Telegraph, attempting to debunk the Irish border "myth", demonstrated that with absolute clarity. A man who doesn't even understand the basics isn't going anywhere.

Unsurprisingly, the Irish TV channel RTÉ picks up on the emptiness of the man, recording the headline on its website: "Johnson offered 'no new ideas' on Brexit - Downing Street". Downing Street, it says, "has delivered a stinging slapdown to former British foreign secretary Boris Johnson, saying he has produced 'no new ideas' on Brexit".

Of course, we're still waiting on the masterpiece from the backroom boys in the ERG but, no matter what they produce, we are all out of options. At this stage in the proceedings, there is no solution to Brexit that can play to a divided nation and be acceptable to the European Union. And anything they offer will be a long way from being acceptable to the EU.

All we can expect from this, therefore, is more fuel to add to the flames of a Tory civil war, where the fight is more important than the substance. Even if there was to be a winner on the home front, Brussels will have the last word and, unlike the man from Del Monte, it won't be saying "yes".

For those of us whose interest in internal Tory party politics is precisely nil, these are dark days and set to get darker. With a media obsessed by Westminster politics, and lusting after a Tory leadership contest, the chances of a serious debate on Brexit emerging are about the same as my becoming a fan of The Daily Telegraph.

The thing is, after the hacks have indulged themselves in a frenzy of domestic politicking for the next month, what then? If we were then to have a leadership contest, what would happen to the talks in Brussels? How could Barnier progress when he would have no certainty that any deal he made – even on minor issues – would survive in the event of a leadership change.

And if there is no contest in the offing, does the close of the conference season end it? Or do we continue to see a prime minister being steadily undermined, to the point where her lack of grip on the party forces her to quit? And if she doesn't quit, where do we go from there?

Such questions, we should not even be asking. Rather, we should be focused on the outcome of Brexit – except that no right-minded person would pretend to be able to predict what is to come out of the growing mess. Thus, that leaves us trapped in a never-never world from which there is no prospect of escape.

The utterly perverse outcome of all this is that we will probably end up relying on the EU to stave off the worst effects of our political incompetence. A "no deal" scenario will require the active intervention and willing cooperation of EU institutions to keep any number of UK systems running and to allow us to interact with our neighbours.

In the short-term, therefore, Brexit will increase our dependence on the EU. While our politicians bicker, we will be reliant on those much-maligned Eurocrats making plans to keep the post-Brexit show on the road.

This is a reality, though, the consideration of which hasn't even entered the debate. Many of those arguing for, or expecting, a "no deal" outcome are expecting the government (our government) to be preparing for a no-deal deal, with a torrent of last-minute agreements to take the place of a negotiated withdrawal.

Yet, the more one thinks this through, the less plausible it seems. As it stands, the EU cannot negotiate with one of its Member States, other than through the medium of Article 50. And it cannot negotiate with a third country unless it follows the procedures set out in the Treaties, specifically Article 218.

This is exactly the same Article which determines the Article 50 negotiations and, as we have seen, before the Commission can conduct negotiations, it must seek the specific authority of the Council, which will then dictate the mandate which the Union negotiator must follow.

At the conclusion of negotiations, the negotiator then has to report back to the Council with a formal proposal to accept the deal, whence it will "adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force". Furthermore, since the coming into force of the Lisbon Treaty, in most instances the approval of the European Parliament will be required.

The point here is that there is no possibility of the EU agreeing a deal (or deals) with the UK before Brexit, and then signing on the dotted line at one minute past midnight on 30 March 2019. The proper procedure must be followed – without which any agreement would not be legally valid.

On this basis, the prospect of a "no-deal deal" – set up in time to give us cover from day one of Brexit – is entirely illusory. It is an invention by advocates of the "no deal" scenario, offered to give the impression that it is safe to withdraw without a formal agreement.

For sure, there will be discussions between the UK and the EU after Brexit day, even if there is no deal. But the procedures will have to be followed and, in the main, we are talking about several months simply to conclude basic agreements. Anything complex, like an aviation agreement, could take years.

In that scenario, the only way the UK will be able to function as a trading and operating partner with the EU is if the EU makes a number of as yet unspecified concessions, made unilaterally without requiring the approval of the UK. How precisely that will be done – or whether it is even possible – remains to be seen.

Undoubtedly, any such arrangements will be set up in such a way as to favour EU interests, and they will remain in place only for as long as they are to the advantage of the EU and its Member States. The uncertainty plaguing the current negotiations will thus intensify, creating near-impossible trading conditions for many businesses.

To avoid this would require our politicians to grow up, very rapidly, and to focus on reaching an agreement – any agreement – which will formally extract us from the EU and give us a transitional period long enough to settle a workable long-term trading agreement.

But since we know this is not going to happen, and that the next month is going to be frittered away on sterile pursuits, we need to come to terms with the fact that Brexit is going to be a torrid affair for almost everybody. There is hardly a single person who will not be affected by the fallout.

Of course, some would prefer the impending crisis to be treated as a reason for returning to the fold of the EU. But even to organise that – should it be possible – is beyond the capability of our dismal bunch of politicians. They will allow us to sleepwalk into Brexit, without the first idea of what consequences will befall us.

Nor even is Efta/EEA an option. Those who have taken the trouble to explore what is needed to deliver on that will know that it is neither a swift nor easy option. To deal with the formalities would take a far longer time than we have left. The only option now is to hope that the EU will be better prepared for Brexit than is our own government.