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

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place, has sucked his half-time orange and kicked off the second half by declaring: “Our Article 50 letter could be withdrawn without cost or difficulty, legal or political.”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.

READ MORE at telegraph.co.uk/opinion