h1

The terrible truth about Brexit

November 29th, 2018

Young lawyers are given eclectic reading recommendations. I think the idea is to broaden their minds and to make them more commercially aware. Or perhaps their mentors just think they should read more. Some of the suggested reading, regrettably, includes business management books. The least scientific and most cynical books tend to be most useful in practice. I have often drawn on the early chapters of Parkinson’s Law in meetings. Who Moved My Blackberry is a how-to manual for all too many executives.

The Terrible Truth About Lawyers is Mark MacCormack’s take on my profession. He wasn’t a fan (like John Grisham, he could speak from the inside). One of the dangers he draws attention to is the problem of embarking on litigation. He describes it as being a wall of treacle. Once you’ve got stuck in it, you can’t move forward and you can’t move sideways. You can’t even move backwards.

You can probably see where I’m going here. Britain has embarked on Brexit. It now finds itself stuck in a wall of treacle. Theresa May has negotiated a deal that has united politicians of all stripes only in their distaste. She looks to be facing a three figure defeat in Parliament on it.

So what are the options? Her Leave critics fall into two overlapping camps: those who want no deal and those who want her to renegotiate the deal that she has struck.  Both of these approaches have the same problem. They require the EU to cooperate.

This is obviously so for the idea of renegotiating. Less obviously, “no deal” requires large numbers of mini-deals to be negotiated with the EU on a whole array of subjects, from use of airspace to continuing medical supplies. True “no deal” would be every bit as disruptive and disastrous in the short term as has been touted. To get out of the wall of treacle by going forward with Brexit, therefore, requires the help of the hated EU.

How likely is that cooperation? Not very. The EU has already publicly said that it won’t renegotiate. It can hardly do so without losing a good deal of credibility. In any case, how  could it negotiate if it had no faith that any new deal would be any more likely to meet with favour in Parliament? At least three different renegotiations have been touted. Where many cures are suggested, there is none.

While the EU would no doubt cooperate to mitigate the very worst effects of “no deal”, there is not enough time left to deal with every aspect and there would be little incentive for the EU to give discretionary effort by extending the notice period to make Britain’s exit as smooth as possible, at a time when goodwill would be as rare as rocking horse shit.

Remainers can’t feel any more smug. Their preferred remedy is to reverse course and stay in the EU. That, however, looks no more achievable without EU cooperation. Britain has triggered Article 50 by notice. The CJEU is currently considering whether Britain can unilaterally withdraw that notice, but the prospects do not look good. If so, Britain will be reliant on the EU deciding whether, and if so on what terms, Britain could stay in the EU.

How likely is that? Formally, the EU has the position that it would be only too pleased to see Britain return to the fold. In reality, that looks open to doubt. Britain remains split down the middle on the subject. Leavers were never exactly enthused about the EU and now are ready to form insurrectionary militias. Does the EU really want a member state with such a large disaffected grouping? Really?

Then there is the question of the price for that consent. Presumably Britain’s rebate would go. What else might be extracted for the price of continued admission? If each member state’s agreement is required, each member state may seek a price for its acquiescence.

So Britain has embarked on a course of action on which it is now trapped, only able to go forward on the negotiated but unpopular deal or with the cooperation of the EU, which may well not be forthcoming or only forthcoming on highly unpalatable terms.

What of a referendum? That is merely a route for choosing between different options Before one is offered, the government had better make sure that the options offered are all available.

Blanche Dubois announces, at the climax of A Streetcar Named Desire: “I have always depended on the kindness of strangers”.  If Theresa May’s deal is shot down by Parliament, Britain is now in that position.  Blanche is then carted off to the lunatic asylum. Britain may already be there.

Alastair Meeks