With a Brexit deal in sight, Britain is entering a no man’s land
When is a deal a deal and no deal at the same time? In the Brexit negotiations. In fact, the way in which the talks between the UK and the EU were organised propels the process to one overwhelmingly likely outcome: an agreement on how to leave the EU, with no binding agreement on how to live outside the bloc. The former — as the EU’s chief negotiator Michel Barnier made clear this week — is within touching distance. But the latter remains as distant as ever.
This straightforward fact appears to have been forgotten by those who used the summer to speculate about the perils of a “no-deal” outcome. The UK government has sought to dignify its hopelessly fudged Chequers plan by comparing it to the ructions of a no-deal Brexit. Ardent Conservative Brexiters, meanwhile, have sought to claim that no deal would be a perfectly manageable outcome.
Neither has admitted to the British people that under all scenarios, once a detailed plan for Britain’s departure from the EU is agreed, Britain will be floating outside the bloc without any legally agreed future. It will be similar to leaving a house and throwing away the keys, with no idea where to stay next. As this becomes more obvious, the growing dissent in parliament and the country will rise.
None of this should be a surprise. It is spelt out clearly in Article 50 of the EU treaties. The only legally binding component of any deal will be related to the “arrangements for its [the exiting state] withdrawal” (money, EU citizens rights and the Irish border) while the framework for the future relationship will be subject to a non-binding political statement. The latest wheeze in Brussels is to turn the latter into a “solemn declaration” — as if portentous language can make up for the lack of legal clarity.
Theresa May knew this from the outset. Her government did nothing to try to change the terms of the negotiation. Crucially, this interpretation of Article 50 remains the guiding instruction to Mr Barnier and his negotiating team. He has little incentive to engage in detail with Britain’s Chequers plan, or indeed any other rival version of the future. It is not his job. As far as he is concerned, he has been asked to arrange for an orderly and legally sound departure of the UK from the EU.
No wonder Mr Barnier tends to focus most on the first part of that task — especially the unresolved issue of the Northern Irish border — and remain aloof about the latter. When I recently suggested to one of the key EU negotiators that the political declaration was not worth the paper it is written on, they did not demur.
The British political and media establishment has always underestimated the centrality of law to the EU. As Europe’s only democracy without a written constitution, British decision makers assume that a smidgen of fudge and old fashioned muddling through will do the trick. But the EU has hard legal contours that are not susceptible to the kind of nudge and wink dealmaking of Westminster tea rooms.
This is the reason why — if unwittingly — Mr Barnier has become an ally of sorts to Jacob Rees-Mogg and other Brexit fundamentalists. They, too, simply want to see the UK leave the EU and regard any commitments about the future as a constraint on their hopes for a buccaneering Britain scouring the planet for new (if economically insignificant) trade deals.
More thoughtful European leaders are starting to discern the dangers of an unresolved Brexit in which Britain leaves the EU, but all the negotiation about the future is still left to do. French president Emmanuel Macron recently warned against the dangers of a “ blind Brexit ”. He is right to be worried. The prospect of Brexit weeping like a running sore for years to come will drain the EU of the political capital it needs to focus on other issues.
In other words, even as the warning signs flash about the dangers of an exit shorn of a detailed plan for the future, the Brexit conveyor belt continues to roll. It is too late to redesign the parameters of the talks and neither side possesses the will or the wherewithal to broker a better conclusion. It is testament to the frenzy unleashed by Brexit that Britain, home to one of the world’s greatest democracies, should now be on the verge of willingly entering into a legal and political no man’s land.
The onus on MPs to save the government — and the country — from itself becomes bigger by the day. If parliament chooses to act, it is still not too late to give the country more time to choose a better future.