Hell's special places

6 February 2019

Our readers have been asking what we make of current events. Two days ago, the President of the European Commission, Donald Tusk, stagily expressed his own frustrations with remarks about a “special place in Hell” for British Brexiteers. No doubt, Hell has many special places, possibly including one for the promoters of Project Fear, now attracting widespread derision and laying the ground for something akin to the several generations of distrust between the American government and people, following Vietnam and Watergate. Possibly also for those who have tried to intimidate legislators by associating the Irish backstop so roundly with the Good Friday Agreement. This is set to unravel as one of the Agreement’s progenitors, the Nobel laureate David Trimble, goes to court to prevent this aspect of the Withdrawal Agreement (WA) taking effect. This will turn attention to the economics: Ireland is acutely vulnerable to Brexit and the EU wishes to avoid a claim under Article 340 of the TFEU (Lisbon Treaty), which provides that

  • “In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.”

At risk of Donald Tusk’s infernal consignment, let us offer our own heroic simplification. To our surprise, the Prime Minister’s doggedness means that some sort of version of her deal remains in play. But it may well not happen. Before we come to these central alternatives, let us briefly dispense with the less likely outcomes.

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We can be absolutely certain that there will not be an election - or at any rate not soon enough to affect the WA. There is no time for it; the EU will not permit an extension of the deadline to allow it, as it grants them no greater certainty; and however dogged, May cannot realistically hope to lead the Tories into another such campaign.

We can be almost as certain that there will not be a second referendum, for similar reasons to the above. Once again there is no time for it; and the EU will not permit an extension to allow for it, as it too grants them no greater certainty. In addition, unless there is an extraordinary alteration in parliamentary arithmetic, there is insufficient support in the Commons for it.

There will be no extension of the timetable, or in any event not more than a few weeks to dot “i’s” and cross “t’s”. No one wishes to get the Brits involved in the European elections. And even a few weeks is unlikely as if the Brits asked for it, the EU would want something in return. To put it mildly, the mood in Westminster and much of the country is unreceptive to such requests.

Unless the next Commons vote shows a very different character to the last, there will be no commitment at this stage to a “Norway” option, Customs Union or the like, including Corbyn’s most recent formulation of BRINO. Quite apart from the fact that none of these reflects the referendum outcome, it is premature to address them as they relate to the eventual end state rather than the WA itself. Ventilating one or the other on the part of May’s Cabinet (less so May herself) represents manoeuvres to get the Commons in a mood to support her deal as the lesser evil, ie, dishing the Malthouse Compromise, best seen as a graceful acknowledgment of “no deal”. And so to the alternatives actually before us.

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May’s deal is universally unloved, but she has more-or-less succeeded in defining objections to it down into the backstop, that is overlooking the pragmatic complaint about the unconditional payment, the principled objection to the prolonged survival of EU jurisdiction and general concerns about its inherent uncertainty.

May is hoping for a last-minute fig-leaf from the EU, enabling her to proclaim victory to an exhausted Commons. This cannot be ruled out: after all it is Brussels’ way of doing business. May hopes to peel off enough diehards from the ERG, to combine with Labour votes - bought with regulatory promises or ready money - to get her over the line. Certainly, Europe is deft at legalistic manoeuvres intended to paper over differences.

No deal simply means “not May’s deal”. Immediate deals would have to be made both bilaterally to keep goods flowing and at EU level to (eg) maintain Member-States’ access to London’s financial markets. Because there will be much to be agreed, the UK has every reason to hang on to the money surrendered in May’s deal as a bargaining counter. This should remind us that these excruciations will not end on 29 March (or as extended). Even if there is no deal, look out for those arguing for carrying on “as if” the deal had been agreed, in particular handing the money over.

Regardless, Remainers will become Returners, as well as beefing up their campaigns for the weakest form of separation from the EU’s structures. Like unreconstructed Chavistas, those promoting the Norway option, staying in the Customs Union or the Single Market won’t give up. This nuisance will continue until relations with the EU are definitively respecified. Although a draft UK-EU FTA is now available, this is more likely to become the matter for an eventual general election. First however, May would have to leave the lists, while the two parties set out their stalls, courting the risk of splitting.

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It is hard not to share Mr Tusk’s frustrations, though it would be pleasant if he had sufficient humility to acknowledge the part which he and his colleagues have played in promoting the current pass. If no deal occurs it will be a colossal failure of statecraft, in Brussels as much as in London. But at a time when France and Italy are sending each other’s ambassadors home, Germany is sliding into recession, and the Continent’s flagship industry, car manufacturing, approaches life-support, the EU may well feel that there are reasons to tone down the hellish rhetoric and pull up their socks for some pragmatic solutions.