UK dilemma over Brexit is beginning to morph into a constitutional crisis

Theresa May’s new plan is the hardest road to travel and will be rejected by the EU, writes Colm McCarthy

FOLLOWING the Chequers meeting of the cabinet-before-last (two senior ministers quit in the aftermath), the UK government’s latest plan for Brexit was released as a White Paper.

It will escape, for a while, a flat rejection from the European Union. It appears to offer a path to dealing with the Irish Border issue and could thus open the way for a withdrawal agreement, including a post-Brexit transition period lasting until the end of 2020. But there are reasons for expecting rejection, after a decent interval, from the EU 27. Nor are the proposals guaranteed majority support in the House of Commons, and there is a constitutional crisis in the making.

The withdrawal agreement, on which the offer of a transition period depends, must be ready for ratification at the European Council scheduled for October 18 next. The deadline could be allowed to slip — but by six weeks rather than six months.

The withdrawal agreement must finalise outstanding issues concerning the UK’s financial obligations, the rights of EU citizens in the UK and Brits abroad as well as the Irish Border question. And it must be accompanied by an outline agreement on the UK’s long-term trading relationship with the EU. This is what Article 50 of the treaty has to say about the procedure when a member notifies its intention to withdraw:

‘In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.’

The piece placed in italics is now the most likely barrier to a deal in the autumn. If a framework is reached along the lines of Theresa May’s latest scheme, the Irish Border question could become tractable and outstanding differences on the other issues could be resolved. Unfortunately, the framework proposed in the White Paper for the UK’s future relationship is another wish-list, a letter to Santa: it contains too many threats to the integrity of the EU’s single market and customs union. It seeks partial membership of the single market, a contradiction in terms, and would destabilise the EU internally and compromise its current and future worldwide trading agreements. The EU has resisted cherry-picking by a departing UK from the beginning because it must do so, not because it desires a no-deal bust-up.

The debate about Brexit features numerous and overlapping delusions about the nature of the EU and the possibilities for Britain’s relationship as an ex-member, which it becomes through the self-implementing resignation letter eight months from now. The greatest delusion is that the EU can create an entirely new type of relationship for the UK not currently available to any third country, including privileges without responsibilities in a deal not available to EU members. A related and more fundamental delusion is that there is a sovereign state called ‘Europe’ with its capital at Brussels. It should therefore be able to do deals and display ‘flexibility’. But the EU is not a state, it is a treaty organisation staffed by international civil servants in the persons of Jean-Claude Juncker, Michel Barnier and their colleagues. It can do nothing outside the provisions of the treaties to which the UK is a signatory and with which the current generation of UK politicians has chosen to remain unfamiliar.

A final and debilitating delusion is that the EU has as much to lose from a no-deal outcome as has the UK. A nodeal crash-out would be a setback for the EU, for political as well as economic reasons. The damage is, however, minor for most EU members given limited economic exposure to the UK, and major only for those geographically in the line of fire, especially Ireland.

The UK accounts for only around 3pc of the world’s GDP. This is an economy no more significant than France or Italy, less significant than Germany and the target of Danish finance minister Kris- tian Jensen, who observed two weeks ago: “There are two kinds of European nations. There are small nations and there are countries that have not yet realised they are small nations.” The Brexiteer mantra that ‘they need us as much as we need them’ has done enormous damage.

The UK dilemma over Brexit is beginning to morph from an economic own-goal into a constitutional crisis. There is no House of Commons majority for a no-deal Brexit. But there is none either for the softest available option, a Norway-style deal which would retain membership in the single market, a close customs deal, continuation of substantial free movement and jurisdiction for the European Court. The Labour Party supports Theresa May’s rejection of this course. But the in-between option in her new plan is the hardest road to travel.

Even if it could be accepted as a base for negotiation by the EU, it will take far more time than is available in the 21-month transition period into which the can has been kicked. Anyway it will, insofar as anything about Brexit can be predicted, get rejected in due course by the EU.

This means the UK has chosen a decision-making process, the 2016 referendum, which has failed after two full years to yield an implementable outcome. On an issue of such magnitude, this is a constitutional crisis. It is striking that the Tory right, who for all other purposes venerate her memory, have persistently declined to invoke Margaret Thatcher in support of the Brexiteer position. The reason: even though she became increasingly Eurosceptic towards the end of her career in active politics, she regarded the referendum device as constitutional nonsense and said so in the House of Commons in 1975. This was one of her earliest contributions as Tory leader when Harold Wilson’s Labour government proposed a Europe vote, the first national referendum in British history, to fix a split in the governing party. She warned that:

“The longer-term result will be to create a new method of validating laws. What one minister has used as a tactical advantage on one issue today, others will use for different issues tomorrow. This will lead to a major constitutional change, a change which should only be made if, after full deliberation, it was seriously thought to be a lasting improvement on present practice.

“This White Paper has come about because of the government’s concern for internal party interests. It is a licence for ministers to disagree on central issues but still stay in power. I believe that the right course would be to reject it and to consider the wider constitutional issues properly and at length.”

Thatcher objected, in principle, to the importation into the nest of parliamentary sovereignty of the referendum cuckoo in a country lacking a codified constitution. There were no national referendums during Thatcher’s long premiership, although she could hardly have foreseen the extraordinary mess which has now been created, where the Will of the People is being disputed after the votes have been counted. The 2016 referendum, only the third such national poll in British history, was the first that opted for change, paralysing the system, since nobody knows what change was chosen.

‘Thatcher objected to the importation into the nest of parliamentary sovereignty of the referendum cuckoo in a country lacking a codified constitution’