Missing the October deadline for reaching an agreement on the terms of our withdrawal may have serious repercussions for the government next year. This article HERE from Lexington Communications outlines some of the difficulties Theresa May will face. At the bottom of it all is the sheer lack time and the absence of anything that even looks like a consensus about significant aspects of the agreement. And the fact she has no parliamentary majority.
One of the joint authors, Paul McGrade, a former diplomat at the Foreign Office, who has worked at the European Commission in Brussels and the Cabinet Office as an adviser on EU treaty negotiations, also has an article in The Guardian (HERE) about how a no deal outcome will not be a single event but a process. The EU, he claims, think no deal will be such a catastrophe for the UK we'll be back round the table in double quick time. He claims the EU are willing to see this happen and I believe he's right.
However, the main thrust of the Lexington article is the now extremely compressed time frame to enact the primary legislation for implementing the Withdrawal Agreement (assuming we get one soon) in parliament. The divisions and the loathing that each side has for the other will be out in the open with guerrilla warfare being used to block the bill or block the blocking amendments that might thwart it. If there is no majority in the House of Commons for any of the possible deals on offer, this is true in spades for the Lords, who will also be involved and are likely to try and amend the bill with the potential for more delays.
McGrade says:
"The bill, then, will lay out with legal precision the immediate “vassal state” relationship which Brexiteer MPs have criticised. It will also make clear that, contrary to what many Brexiteer MPs have claimed, the financial settlement is not a payment for a future trade deal, but a separate settlement of accounts. This presents serious risks to ratification. For although parliament cannot change the Withdrawal Agreement, amendments which could in practice wreck the deal may be considered in the scope of the bill".
Of course the terms of the bill will already be public knowledge from the wording of the agreement but I can imagine the newspapers and the Brexiteers getting into a real fury about this. How many times have we heard them say we won't pay anything unless we get a good deal? Will Brexiteers put their name to a law making it quite clear this is not the case? Maybe they won't.
The next problem will be the length of the transition period. This will be something else Brexiteers will be unhappy about since there may be no end date or a backstop for the Irish border that the DUP will baulk at. And for the transition period, EU law must continue to apply so section 1 of the 2018 EU Withdrawal Act, the crowning glory of the Brexit movement, which says, "The European Communities Act 1972 is repealed on exit day" will have to be suspended. McGrade says:
"There is also a major requirement which cuts across most areas of UK law and policy: to suspend the effect of what was once known as ‘the Great Repeal Bill’ by continuing to make EU law supreme over UK law during the transition period. The EU Withdrawal Act 2018 formally repeals the European Act Communities Act 1972, ending the jurisdiction of the European Court of Justice in the UK and the supremacy of EU law. This change, a totemic symbol of Brexit for many MPs, will be “saved” – that is, suspended – until the end of the transition period. UK law cannot be inconsistent with EU law during the transition".
It will be something like the dance of the seven veils for Brexiteers. So close to what they have dreamt of and salivated over for thirty years in front of them only to be asked to push it away for another couple of years! Who knows what they'll do? It might drive some over the edge.
He says the actual legislation will probably not be ready until after Christmas when parliament will have 44 sitting days available before March 29th, not all of which will be on government business and not all of which can be on the Withdrawal Agreement. Maastricht occupied parliament debating time for 41 days and this will be equally contentious. McGrade goes on:
In addition, the bill will cover ‘safeguard’ measures for some of these Withdrawal Agreement rights in UK law. The UK has agreed the principle of extra constitutional locks over EU citizens’ rights but has not yet presented any details to parliament. In particular, the bill will need to cover:
Creating a constitutional “barrier” to a future UK parliament repealing the rights of EU citizens in the UK. Restrictions on parliamentary sovereignty are rare in UK law, and so likely to attract Parliamentary debate and potentially amendments;
An independent monitoring mechanism for EU citizens’ rights, giving a new, UK body the same rights of investigation and initiating protective court proceedings as the European Commission currently has in the EU. This will create a ‘two tier’ set of legal protections, applying only to EU citizens in the UK;
Recognising certain EU-derived individual rights – such as recognition of professional qualifications – in UK law, for people who are already working in the UK. This could become linked to debates about reciprocity for UK citizens working in the EU;
Potentially extending restrictions on the effective return of powers from the EU to Scotland, Wales and Northern Ireland until the end of the transition period.
None of this looks easy for the government and the whips will have difficulty getting a working majority. Much of it is new, the government is weak, there is no consensus in cabinet or in either of the two main parties so the first three months of 2019 are likely to be the most politically explosive for decades.
Ultimately, if we run out of time Theresa May, or whoever is in No 10 when the ordure collides with the fan of reality, will have to ask for an extension, which all 27 must unanimously agree to, and presumably able then to demand more concessions to do it.
