13 March 2019

What next on Brexit: A tentative suggestion

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What happens next? That is the question which everybody is asking after the second spectacular defeat of Theresa May’s Brexit plan. Given that only 24 hours ago it had a reasonable chance of passing and those expectations were dashed, one hesitates to be definitive. But here is my guess, based on the legal position and political position as I understand it.

I also recommend listening to an interview with the two principal backbench antagonists on the Today Programme this morning. Steve “Malthouse” Baker vs Nick “Norway Plus” Boles.

The Government motion tonight is largely meaningless and whether it passes or not – presumably it will – adds little. The key thing is how the amendments are voted upon, of which the most important are the so-called Caroline Spelman/Jack Dromey amendment, declining to leave the EU without a deal; and the so-called Malthouse one, signed by senior figures from across the Conservative Party, advocating a two-year transition with the EU (as per the Withdrawal Agreement), or, failing that, a drop into a series of No Deal “standstill agreements”. We would then negotiate a new free trade deal from there.

Meanwhile, in the background lurks the European Economic Area single market treaty. A legal fact which is oddly unpalatable to all sides in the debate is that we have not given the requisite 12 months’ notice to leave this treaty and the published “separation agreements” have not been signed. The primary legislation which would ratify our exit from this important treaty is also nowhere to be seen.

To remind you, this so-called Norway option could be made operative by applying to join the European Free Trade Association. However, the advocates of Norway Plus, Nick Boles & co, are oddly proposing to vote for the current Withdrawal Agreement and the consequent Act of Parliament, thereby pulling out of the EEA, only to reapply in a few years’ time, which will require approval and ratification of 30 states, plus the EU.

As for the Brexiteers, I have to confess that the EEA has become politically toxic to them and they get angry if you even mention it.

The obvious common sense solution is a sort of EEA Malthouse. Instead of dropping into a two-year transition period which is a sort of synthetic EU membership with all the costs and obligations but none of the votes, we should leave the EU as planned as soon as possible, without a deal and into the standstill agreements if necessary, and assert our rights under the EEA Treaty by joining EFTA and negotiate a free trade deal from there.

Sadly, at this point, common sense is currently in short supply in the febrile atmosphere of Westminster. Like many people, I predicted the Withdrawal Agreement would be passed yesterday, only to be dumbfounded by the Attorney General’s legal advice. Roll up, roll up.

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George Trefgarne is founder and CEO of Boscobel & Partners consultancy.