Richard North, 18/11/2018  

The only thing that is now absolutely certain about Brexit is that what we voted for in the referendum was not the utter chaos we are looking at today, writes Booker in today's column.

What most of us making up that 17.4 million imagined we were voting for was not just that we should leave the EU, but also that we should do so with minimal damage to our economy.

But the problems started way back when the Brexiteers behind the official Vote Leave campaign very deliberately decided that they should not put forward any specific plan for how this might be achieved. Their view was that, if any such strategy was proposed, this would only set off ferocious arguments with all those lobbying for alternative plans.

This was evident in a sneery e-mail which Dominic Cummings sent me in July 2015 in response to one of mine when I had argued that the official "no" campaign would need an exit plan.

Cummings by then was already aware of Flexcit, acknowledging that it was "unarguable" that it was "a very important document", but we went on to say that he had to deal with "a physical reality" where "almost nobody agrees … about almost anything".

Thus, it was not a question of the campaign failing to have a plan. The idea was deliberately rejected, an act of cowardice that had the main players ducking an issue that was inevitably going to rebound on us all, simply because the campaign wanted to avoid disagreement in its ranks.

The inevitable result of this act of cowardice - only offering voters a blank cheque as to what might happen next - was that it merely postponed the moment when precisely those arguments were bound to emerge. After the result, each of the rival groups could then claim that the referendum result supported whatever agenda they were putting forward.

The trouble was that none of these competing views, including those of the "ultra" Brexiteers, was based on any proper understanding of the incredibly complex realities of the situation we were facing.

This was never more tellingly demonstrated than by Theresa May's Lancaster House speech in January 2017 when, under the spell of the Brexiteers in her Cabinet, she for the first time announced that we should leave not just the EU itself but also the wider European Economic Area.

Since this meant that we would lose our "frictionless" access to the single market, it inevitably faced us with a whole raft of new problems, from the Northern Irish border and the likeliood that we would risk damaging significant parts of our export trade to the terrifying consequences of our crashing out without a deal.

Only recently does it appear that the government has belatedly woken up to the scale of the disaster this was threatening to almost every part of our economy. And having boxed herself in, that lead to Mrs May finally agreeing the tortuous 585-page "draft withdrawal agreement".

It is impossible to read this document in a single session and the complex bureaucratic phrasing and confusing structure make comprehension difficult. Undoubtedly, even now, few people will have read it and even fewer understand it.

Only by piecing disparate and separate parts, and then cross-relating the text to real world scenarios can sense be made of it. For instance, in the crucial phrasing of Article 1 of the Protocol on Ireland, we see stated that the objective of the withdrawal agreement "is not to establish a permanent relationship between the Union and the United Kingdom".

Thus we are informed that the provisions of the Protocol are "intended to apply only temporarily", a claim on which Mrs May relies when she tells us that it is of no great significance.

The problem arises, however, with the Article stating that the provisions of the Protocol apply" unless and until they are superseded, in whole or in part, by a subsequent agreement".

Article 2 then tells us that the EU and the UK "shall use their best endeavours" to conclude, by 31 December 2020, an agreement which supersedes the Protocol "in whole or in part", so coinciding with the end of the transition period, when the Protocol comes into force.

In theory, in concluding a superseding agreement by this date, the Protocol never comes into force and the problems inherent in its application are avoided. But, in practical terms, the "best endeavours" phrasing is meaningless. It does not create a legal commitment to any defined timescale. It is simply an aspiration.

On the other hand, the reality is that it could take anything up to ten years to conclude the complex free trade agreement that the political declaration has in mind, which means that the Protocol would most certainly have to come into force – even if the transition period was extended.

And even here, there is a serious political issue as we learn that just an extra year could cost the UK an extra £10 billion in contributions to the EU budget.

The unalterable point therefore, is that the UK will find itself having to apply the Protocol while then negotiating with the EU on measures that will replace it. And the key point here is that any measures must respect the requirement to avoid a hard border between the two Irelands.

Therein lies the rub, as the real world intrudes. Nothing which the UK intends to negotiate with the EU by way of "regulatory cooperation" in the framework of a free trade area could adequately replace the Protocol. Nothing proposed could remove the need for the hard border.

With the Protocol then in force, any amendment must be agreed by the body set up by the Protocol – the so-called Joint Committee comprising representatives from the EU and the UK. Acting by "mutual consent", that effectively gives the EU a veto on amendments while refusal to agree would be justified if any measures failed to preserve the "frictionless" border.

Booker picks up the threads here, By this means, he notes that Mrs May has in effect agreed we should remain for an indefinite period in the customs union specified in the Protocol.

The EU will be calling literally all the shots, from making all the rules without consulting us and subject to the rulings of the European Court of Justice, to deciding when this compromise arrangement will end.

But the EU has not stopped there. It piles on the agony demanding that, "with the aim of ensuring the proper functioning of the single customs territory", a huge raft of additional measures must be adopted. Amongst other things, this means we must accept in its entirety all the EU's climate and energy agenda.

All this, says Booker, was why Mrs May was greeted with ridicule when she yet again intoned her robotic mantra that the agreement showed us "taking back control of our laws".

Not surprisingly this prompted furious protests from every part of the political spectrum, which continue to this day. In Booker's view, the chances of the withdrawal agreement being approved by Parliament are "zero". Even if I am less sanguine, no one can dispute that Mrs May's cabinet is in meltdown and that she has plunged British politics into a crisis for which it is almost impossible to think of any historical precedent.

Naturally, Booker concludes, this has left the EU itself in an impossible quandary. No sooner had its leaders acclaimed the agreement as at last a "positive breakthrough" than they saw Mrs May’s government dissolving into such chaos that they could only insist that any further negotiations were out of the question.

Stand by, he says, not just for weeks or months more of chaos, but years of even worse to come.

If we then cut to Simon Heffer in his column, we find him being less than complimentary about the "fatuous five" Brexiteers remaining in the Cabinet.

Including Michael Gove and Andrea Leadsom, this group is apparently working on revisions to the draft withdrawal agreement and is pushing Mrs May to insist on Brussels making changes to the draft. This is despite that fact that multiple EU-related sources have made it clear that the draft is final and cannot be revisited.

The key change being demanded by the "fatuous five" is – predictably – that the UK should be afforded the unilateral right to withdraw from the "backstop". Yet, for all the problems it is causing, there is little the EU can do. As long as both parties are committed to a frictionless Irish border, it cannot allow the UK the freedom of action in walking away without equivalent measures in place.

Even at this stage, though, Mrs May could get herself off the hook by moving to adopt the Efta/EEA option although, even now she is denying that this would solve the Irish border problem.

There demonstrated is Mrs May's unending capacity to make a mess of Brexit. Despite the fact that the Protocol achieves frictionless trade by implementing regulatory alignment with the Single Market acquis - the very essence of the Efta/EEA option.

Drowning in her own mess, this stupid woman hasn't the sense to recognise a lifeline dangling in front of her nose. Would that she had someone close to her to spell out in comedy style that this is yet another fine mess she has got us into.

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