Gov­ern­ment must de­cide whether to shadow the EU or di­verge from it

We are now half­way to Brexit. Yet Michel Barnier wants our bill to be set­tled in a fort­night

The Daily Telegraph - - Comment - CHARLES MOORE

Yes­ter­day we reached the half­way mark. It was 505 days since Bri­tain voted to leave the Euro­pean Union and 505 days be­fore our ac­tual de­par­ture on March 29 2019. But we are not nearly half­way to get­ting what we voted for.

I am only slightly re­as­sured by Theresa May’s prom­ise in this news­pa­per yes­ter­day that the date of de­par­ture will be on the “front page” of the EU With­drawal Bill. It may soothe Leavers wor­ried by the idea of an open-ended tran­si­tion pe­riod. But all the Prime Min­is­ter is do­ing is re­peat­ing the le­gal fact and time of Brexit, al­ready es­tab­lished by Par­lia­ment’s vote to trig­ger Ar­ti­cle 50. When gov­ern­ments re-an­nounce some­thing that has al­ready been de­cided, it sug­gests that they are putting up a smoke­screen to hide some­thing less pop­u­lar that they in­tend to do.

At the same time, the Re­mainer Lord Kerr of Kin­lochard, who in­vented Ar­ti­cle 50 in the first place, has sucked his half-time or­ange and kicked off the sec­ond half by declar­ing: “Our Ar­ti­cle 50 let­ter could be with­drawn with­out cost or dif­fi­culty, le­gal or po­lit­i­cal.”

I have pre­vi­ously ad­mit­ted my sneak­ing fond­ness for the chainsmok­ing Scot­tish ex-diplo­mat, the man who put the “Mac” in Machi­avelli. John Kerr is a witty talker who, like many great plot­ters in his­tory, has a weird hon­esty, be­cause he can­not re­sist telling you how his bril­liant schemes work. It was he who, in 1989, con­cocted the so-called “Madrid am­bush”, by which Sir Ge­of­frey Howe was sup­posed to ter­rify Mrs Thatcher into promis­ing that Bri­tain would soon en­ter the Euro­pean Ex­change Rate Mech­a­nism. She made no such prom­ise, and in­stead reshuf­fled poor Howe out of the For­eign Of­fice. In his de­clin­ing years, Lord K de­votes his ex­treme bril­liance to help­ing the EU frus­trate the Bri­tish demo­cratic process.

My learned friend, Martin Howe QC (nephew of Sir Ge­of­frey, but on the other side of the great EU ar­gu­ment), tells me that “the struc­ture of Ar­ti­cle 50 makes [Lord Kerr’s] uni­lat­eral with­drawal ar­gu­ment very dif­fi­cult in­deed. If it were right, a with­draw­ing state could uni­lat­er­ally ex­tend the ne­go­ti­at­ing pe­riod in the face of the wishes of other mem­ber states by with­draw­ing the no­tice and then re­vers­ing it shortly af­ter­wards.” Which sounds fun, but is surely not what Lord Kerr in­tends.

What­ever the ex­act mean­ing of the treaty, how­ever, Lord Kerr’s own words give away his game. The idea that we could now with­draw our with­drawal “with­out cost or dif­fi­culty, le­gal or po­lit­i­cal” is a state­ment of bla­tant un­re­al­ity. The idea, po­lit­i­cally, is as spiky as a por­cu­pine.

In Bri­tish le­gal terms, we would need to get re­peal through both Houses of Par­lia­ment and then check its va­lid­ity with the Euro­pean Court of Jus­tice, all be­fore March 29 2019. This would mean that both the main par­ties who, at the last elec­tion, cam­paigned for Brexit, would have to go into re­verse. Then they would have to face the elec­torate. I am tempted to say “I’d like to see them try”, but I won’t: if they did, all re­main­ing pub­lic trust in pol­i­tics would ex­pire.

Why, then, are the Lords Kerrs, Man­del­son and Ado­nis, Ken Clarke and Nick Clegg, still fight­ing? It would be con­sol­ing to think that they are just dis­play­ing a de­mented, point­less loy­alty to their beloved Brus­sels, like those lit­tle knots of Ja­panese troops who went on fight­ing for the Em­peror af­ter he had sur­ren­dered at the end of the Sec­ond World War. Un­for­tu­nately, it is more se­ri­ous than that.

Al­though they have al­most no chance of keep­ing us in, these ex-states­men are right to de­tect the drag­ging in­de­ci­sive­ness of this Gov­ern­ment. They are there­fore right – from their point of view – to ex­ploit it. Im­me­di­ately af­ter the ref­er­en­dum re­sult, the EU’S se­cret hope was that, as with so many ref­er­en­dums in smaller EU coun­tries, the vot­ers didn’t “re­ally” mean it and it could be re­versed. Even­tu­ally they re­alised that this was not so, but now they put their hope in Mrs May’s weak­ness.

Brus­sels’s Bri­tish sources, al­most ex­clu­sively pro-re­main, keep re­port­ing that she might fall. To avoid that fate, they ar­gue, she must ap­pease her Re­mainer min­is­ters. So there is a chance that she will choose a fu­ture re­la­tion­ship with the EU that is so close that it is al­most as “good” as EU mem­ber­ship. In a way, it might be even bet­ter, from an EU point of view, since Bri­tain would still have to obey the rules but now with­out hav­ing any vote in mak­ing them.

It is in this light that one needs to see the re­cent dis­as­ters. Leave aside, for this pur­pose, your own views about the be­hav­iour of Priti Pa­tel and Boris John­son. The point to bear in mind is that, in nor­mal times, the Down­ing Street sys­tem would have sup­ported them. Now, how­ever, Down­ing Street dithers. The For­eign Of­fice Re­main/anti-is­rael axis has just dispatched Ms Pa­tel, wait­ing un­til af­ter last week’s Bal­four Dec­la­ra­tion cen­te­nary din­ner be­fore do­ing so. Sim­i­lar forces are try­ing to do the same to Mr John­son, who is the great­est Bri­tish gov­ern­ment hate-fig­ure to men such as Jean-claude Juncker and Michel Barnier. Mrs May might not dare to sack him, but she cer­tainly wants to.

Her man­age­ment of dif­fer­ence within her Cab­i­net only in­cites each side to dif­fer more strongly in or­der to pre­vail. Take the mat­ter of money. It is com­mon ground be­tween Remainers and many Leavers that Bri­tain may well end up pay­ing more money to the EU than strict jus­tice de­mands. The dif­fer­ence is that the Leavers want it of­fered only in re­turn for a clear, im­por­tant, bank­able con­ces­sion. If we fol­low the Com­mis­sion’s weird ne­go­ti­at­ing or­der, as Mr Barnier again in­sisted yes­ter­day, and prom­ise the money be­fore we have made a deal, we will have thrown away our big­gest card in two weeks’ time. Yet the Bri­tish Gov­ern­ment is cur­rently hint­ing that we just might.

In the on­line mag­a­zine Re­ac­tion, Lord Bridges, who was a min­is­ter for Brexit un­til he could stand the mud­dle in Down­ing Street no longer, re­minds us that the ba­sic prin­ci­ple of EU ne­go­ti­a­tion is “noth­ing is agreed un­til ev­ery­thing is agreed.” Al­though he voted Re­main, he points out that the Com­mis­sion’s ne­go­ti­at­ing con­cept of “suf­fi­cient progress” be­fore mov­ing to the next stage clearly con­tra­dicts this prin­ci­ple.

Time is work­ing in favour of the EU and against us. The longer we hes­i­tate, the more it will use the un­cer­tainty to try to steal our fi­nan­cial ser­vices. Un­pre­pared men­tally or phys­i­cally for no deal, we have a di­min­ish­ing chance of us­ing that threat as our bot­tom line for get­ting a good one. Who­ever came out top in a ne­go­ti­a­tion by not know­ing what he wants?

The choice the Gov­ern­ment keeps duck­ing is es­sen­tially whether Bri­tain should shadow the EU or di­verge from it. Should it fol­low the Euro­pean “so­cial model” or break free? On Thurs­day Mr Barnier pointed this out, threat­en­ing to pun­ish us fur­ther if we di­verged.

Mr Barnier’s fel­low-coun­try­man Gen­eral de Gaulle al­ways re­mem­bered Win­ston Churchill telling him in 1944 that if Bri­tain were forced to choose be­tween Europe and the open sea, she would choose the open sea. De Gaulle thought Churchill was right, and so voted to keep Bri­tain out. Forty three years af­ter we fi­nally – post-de Gaulle – en­tered, we voted to leave. The open sea beck­ons. How piti­ful we shall look if we set­tle for hug­ging the coast.

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