Author: Frank Schnittger

We’ve come to that time of year when we reflect on the year that has just passed and look forward to what 2019 might bring. For most, I suspect, 2018 has not been a very positive year, with Trump, Brexit, Syria, Yemen, the Ukraine, the refugee crisis, terrorist attacks and natural disasters putting a damper on feelings.

The global economy has continued to grow, but most of the benefits still go to the already rich. Employment and wages growth has been anemic and the gilet jaune protests have highlighted the difficulties which people in even relatively rich countries like France are having in maintaining a reasonable standard of living.

Brexit has highlighted the effectiveness of divide and conquer political tactics in scapegoating immigrants, refugees, and the already marginalised for the problems which ordinary people are experiencing. Hungary and Poland have managed to compromise a free media and judicial independence and Greece is left to suffer enormous deprivation with little EU solidarity and support.

Great uncertainty leading to market volatility and political instability has been reducing investment, growth, consumer confidence, and political ambition. Most people seem to be expecting things to get worse before they can get better, and some doubt whether they will get better at all, with climate warming worsening and threatening to accelerate out of control.

So I would ask readers here take some time out from the end of year festivities to share their experiences of 2018 and hopes for 2019. Is it as bad as I have painted above, or am I missing some green shoots of a more healthy model of politics and economics taking hold? Will DiEM25 usher in a new era of transnational politics in 2019 or will hard right nationalist parties continue to make gains? Will governments start addressing economic, regional, and inter-generational inequality more effectively or are our children destined to be much worse off than we were?

Your thoughts, please.

I haven’t the foggiest notion what the difference between foggy and nebulous is in the context of the confrontation between Theresa May and Jean-Claude Juncker which occurred on camera at the European Council summit. She accused him of calling her nebulous and he responded that he had been referring to the debate in the House of Commons, not her, and that the word he had used was “nebuleux” in French which had been miss-translated as nebulous whereas he had meant foggy.

Both mean vague, ill-defined or unclear, and that is precisely the accusation leveled at Theresa May by several heads of government after her one hour presentation which is said to have alienated and annoyed many on the Council. She told them to trust her judgement, when that is precisely what they no longer trust. You don’t wrap up a legally binding deal after a long and complex negotiation only to come back looking for more changes a couple of weeks later and hope to keep your credibility intact.

EU Heads of government were quite clear that any concessions they make now – without cast iron guarantees they will enable the passage of all required legislation through parliament – will simply be “banked” by UK Brexiteers before they come back looking for more.

What if EU leaders had agreed to Theresa May’s backstop request?

Danish prime minister Lars Løkke Rasmussen, on his way out of the late-night meeting, made the leaders’ message clear: “Someday, somebody needs to say it . . . and you have to say – openly – that it is necessary that you get some homework done in the British parliament, which has handled this challenge very differently to Denmark, when the Danes voted No to Maastricht, or the Irish, when they voted No to Lisbon.

“In both countries someone took responsibility to decide what do we do. In both Denmark and Ireland somebody took it upon themselves to say what can unite us in our country and what should we ask from Europe.”

In the wake of a 2016 Dutch referendum defeat for an EU treaty on relations with Ukraine, prime minister Mark Rutte came to fellow leaders with proposals for a “clarification” of the treaty, but with a clear assurance that his parliament would endorse the treaty if they agreed to the clarification.

The EU leaders accommodated him, as did his parliament.

Mrs May can offer no such assurances. And EU leaders, who read newspapers, are only too well of that reality. They will not buy a pig in a poke.

So unless Theresa May can come up with some concrete assurance – such as a motion passed by the House of Commons – that a certain concession would guarantee the passing of all Brexit related legislation, there is no point in even talking to her further. In fairness the DUP have been equally clear in their opposition to the current deal:

What – if anything – would satisfy the DUP in Brexit negotiations?

He [One senior DUP party source] asserted, “If Theresa May tries to railroad through a withdrawal agreement against our will then we would have to review the confidence-and-supply agreement, and she can’t get the agreement through without our votes.”

That was putting it up to Theresa May to extract a new deal from Brussels, regardless of the fact that the word so far from the EU is that while there can be assurances that it is unlikely the backstop ever will be used, there can be no legal changes to the agreement.

To make this even clearer, the EU27 stripped out all emollient language out of the Council conclusions:

The ebbing patience with the British is now almost palpable in Brussels

Back inside things were taking a turn for the worse. Mrs May’s presentation to the 27 heads of government was not going well. They wanted to know two things, according to subsequent briefings – what did she want, and if she got it, could she get the treaty through Westminster?

Satisfactory responses to the questions were not, it seems, forthcoming. After Mrs May left the meeting, the EU 27 took out parts of the draft conclusions, including a promise to provide further help and clarifications to Mrs May – a move inevitably interpreted as an aggressive move in British reports.

At his press conference on Friday, Varadkar explained the move by saying the leaders felt there were enough assurances already for Mrs May. But the London Times quoted a senior EU official as saying that the UK needed to “feel the bleak midwinter”.

“The feeling is that EU leaders will have to do more for her!” bellowed one British journalist down the phone. That wasn’t the sense that they had. Not yet, anyway. The ebbing patience with the British is almost palpable in Brussels now

Whatever about Theresa May, the EU27 are not going to be held hostage by 10 DUP MPs whose hostility to the EU and it’s remaining member, Ireland, could not be clearer. So Theresa May has to find a majority for the deal without the DUP, or it will be no deal, or no Brexit – her choice.

The EU is clearly prepared to wait until this realization drips into the body politic in Westminster and it is Theresa May, not the EU27’s job to come up with a decision as to which it is going to be.

Anger in Tory circles is growing at the pivotal role being played by Ireland in all of this. Ex Tory Cabinet Minister’s Priti Patel’s comments about using the threat of Brexit related food shortages in Ireland as a means of forcing the Irish to give way could not have been more incendiary. Ireland lost more than a million people to starvation and a million more to emigration while food exports continued to Britain reducing the total population by c. 25% in the middle of the nineteenth century.

Then, in the 1920’s the border with N. Ireland was created as part of the Anglo-Irish Treaty causing a civil war in Ireland which has shaped the political landscape ever since. Ireland is not going to cave on the backstop just to appease some DUP MPs.

So May is down to really only one choice. The DUP, Corbyn, the SNP, and many in her own party have made it clear they cannot support the current deal and no one will be mollified by some “clarifying” declarations outside of the legally binding text. She herself has ruled out leading the Tories into another general election and she has lost all credibility with the EU27. So she either resigns and makes way for a Brexiteer Prime Minister who will pursue the no deal option, or she puts her proposals to the people in a second referendum.

Her choice.

The European Court of Justice has found, in a clear and lucid judgement, that a sovereign state which has issued a notification (under Article 50) of its intention to withdraw from the European Union, retains the sovereign right to withdraw that notification “in accordance with its own constitutional requirements” until such time as it takes full effect. Unlike the Advocate General’s earlier advisory opinion, it does so solely in accordance with European Law as established by the treaties, without relying on “custom and practice” in international law, or the Vienna Convention on the Law of Treaties (VCLT), which has not been ratified by the EU or France and Romania, although it notes that the VCLT “corroborates” this view.

The main arguments it uses to come to this view include the following:

1. “The question referred must therefore be examined in the light of the [EU founding] Treaties taken as a whole” (para. 46) which create “a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights.(44)
2. “As regards the wording of Article 50 TEU, it should be noted that that article does not explicitly address the subject of revocation. It neither expressly prohibits nor expressly authorises revocation.” (48)
3. “a Member State which decides to withdraw is to notify the European Council of its `intention’. An intention is, by its nature, neither definitive nor irrevocable. (49)
4. “The decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice”. (50) It follows that it has also retained its sovereign right to change its mind on that intention, (57) which also reflects “its status as a Member State of the European Union, a status which is not suspended or altered by that notification” (59)
5. “That revocation is fundamentally different in that respect from any request by which the Member State concerned might ask the European Council to extend the two-year period referred to in Article 50(3) TEU; the analogy that the Commission and the Council seek to make between that revocation and such an extension request cannot therefore be accepted.” (60)
6. “the European Union is composed of States which have freely and voluntarily committed themselves to those values [of liberty and democracy], and EU law is thus based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values.” (63) ” In those circumstances, given that a State cannot be forced to accede to the European Union against its will, neither can it be forced to withdraw from the European Union against its will.” (65)
5. “The origins of Article 50 TEU also support an interpretation of that provision as meaning that a Member State is entitled to revoke unilaterally the notification of its intention to withdraw from the European Union.” “Although, during the drafting of that clause, amendments had been proposed to allow the expulsion of a Member State, to avoid the risk of abuse during the withdrawal procedure or to make the withdrawal decision more difficult, those amendments were all rejected on the ground, expressly set out in the comments on the draft, that the voluntary and unilateral nature of the withdrawal decision should be ensured”.(68)
6. “That conclusion is corroborated by the provisions of the Vienna Convention on the Law of Treaties, which was taken into account in the preparatory work for the Treaty establishing a Constitution for Europe.” (70)
7. “As regards the proposal of the Council and the Commission that the right of the Member State concerned to revoke the notification of its intention to withdraw should be subject to the unanimous approval of the European Council, that requirement would transform a unilateral sovereign right into a conditional right subject to an approval procedure. Such an approval procedure would be incompatible with the principle, referred to in paragraphs 65, 67 and 69 of the present judgment, that a Member State cannot be forced to leave the European Union against its will.” (72)

When the Advocate General gave his advisory ruling I formed the view that his advice was unduly “political” and that he was “leaning over backwards” in order to provide a mechanism to enable the UK to reverse its decision to withdraw. On reading the full text of the full ruling, however, I am reassured that it has a solid basis in EU law, and does not rely on the VCLT, or on “custom and practice” in international law.

The risk and concerns expressed by the Commission and Council that allowing for such a unilateral right would open up the process to abuse must be counterbalanced by the principle that joining and leaving the EU must always be a voluntary act by a sovereign state, even if its A.50 notification has occasioned significant disruption and diversion of resources in other member states. There is always the political risk that any state which invokes and revokes its intention to leave the EU will suffer a significant loss of status, prestige and influence within the EU, but such actions do not effect its legal right to do so.

It is to be hoped that the economic disruption and political upheaval experienced by the UK in the aftermath of its A.50 invocation will act as a deterrent to any state doing so in a tactical or indeed frivolous manner. The EU institutions, in deciding on how to respond, will undoubtedly now take into account the fact that any A.50 invocation will in future be seen as reversible, and may not treat such an event with the seriousness, and the allocation of resources, that was accorded to the UK invocation.

The serious negotiations may only begin once a member has actually left, with the Exit agreement dealing only with aspects of the divorce, and providing for a transitional period to minimise disruption while the real negotiation take place with the ex-member as a third party. To some extent that is already happening, with the “Political Declaration” on the “future relationship” between the EU and UK being non-binding at this stage.

Attempts by the UK to include the negotiation of a full free trade agreement within the scope of the Brexit negotiations have been resisted, and much of the disappointment with the Brexit deal in the UK is linked to the fact that the Exit payment must be made up front before the precise nature of the future relationship is known or is fully legally binding. Indeed Boris Johnson, in his latest wheeze, has proposed that half the Exit payment should be withheld until a final trade deal has been agreed and ratified.

The EU has agreed, in an attempt to avoid a “hard border” within Ireland, that the UK can remain withing the Customs Union for a transitional period until an agreed solution to avoiding such a border has been found. But this major concession by the EU has been perceived by many in the UK as a negative, as it doesn’t provide a definitive end date for that transition, or visibility as to how a hard border in Ireland will then be avoided.

If the UK doesn’t like that solution, I suspect the EU would be amenable to restricting that provision to Northern Ireland only, although that creates a risk of a customs border emerging “down the Irish sea”. As the Irish government and Northern Irish business and agricultural lobbies have been quick to realise, that is actually an ideal solution for Ireland as a whole, as it enable free north south and east west trade for the foreseeable future.

It is the DUP, perversely, and obviously hard Brexiteers, who are concerned that such a transitional arrangement could become permanent imposing EU rules on the UK without providing a say in their development, and restricting the UK’s ability to strike its own trade deals. However Ireland is the only country with which the UK has a significant trade surplus, so this has a significant up-side for Great Britain as well.

The hard Brexiteers appear to believe that a hard “no deal” Brexit will enable them to strike more advantageous bilateral deals with EU members and the rest of the world in due course. But no deal means no deal from an EU perspective as well, and it is difficult to see why the EU would strike anything other than humanitarian deals in the event of a chaotic no deal Brexit.

Quite why third countries would strike more advantageous deals for the UK than they would with the EU is also hard to fathom. This belief in the UK seems to be grounded in a belief in a “special relationship” with the US, and in bonds of continuing mutual affection with former colonies and now commonwealth members. Members of the royal family may receive a warm welcome in those countries, as they have in Ireland, but it is doubtful that will translate into hugely more beneficial trade deals than those the EU can negotiate.

The ECJ has affirmed the UK’s sovereignty in matters of EU membership  meaning that the UK can choose reissue an A.50 notification at any time should it decide to remain this time around. It is hard to see this having a game changing impact on the debate in the House of Commons or in the UK as a whole. But in a tight vote it might just swing the waverers.

The Advocate General of the European Court of Justice has advised the Court that it should find that the UK can unilaterally withdraw its A.50 notification to leave the EU, subject to certain conditions. His finding is not binding on the Court, but it would be unusual for the Court to reject his finding in its final ruling, which could come in the next few weeks.

In doing so, the Advocate General has rejected the view of the EU Council and the EU Commission that any revocation of an A.50 notification should be subject to the unanimous agreement of the EU Council. He has also rejected the view of the UK government that the issue is entirely academic and hypothetical, and therefor should be considered inadmissible by the court.

Finally, and most dammingly, he has rejected my arguments to the effect that A.50 provides for no such right, and he goes on to quote the Vienna Convention on the Law of Treaties as providing for such a right, even while noting that the EU, France and Romania are not signatories to that Treaty. Instead he argues (para. 79) that the rules of customary international law are binding upon the Member States and the European Union and may be a source of rights and obligations in EU law.
In one sense the case may indeed be academic. Even its chief protagonist (Wightman) accepts that “it would need a second EU referendum before article 50 could be revoked by the UK. That would take months to arrange, which would mean the current article 50 process would need to be extended.” So the unanimous agreement of the EU Council to extend the 2 year negotiation period would be needed after all, although there is a general sense that this is unlikely to be refused if the purpose is to facilitate a second referendum which might reverse the Brexit process.

In arriving at his conclusions, the Advocate General accepts (para. 90) that “In general terms, it is permissible to defend both the proposition that everything which a provision does not prohibit is allowed and the proposition that the silence of the law implies the absence of a right.  However he argues that as the issuance of an A. 50 notification is a unilateral act of a sovereign nation, so should be its withdrawal. The issuance of an A.50 notification is a statement of an intention to withdraw and not the withdrawal itself, and, as we all know, intentions can change. The notifying state retains the agency to change its mind.

The Advocate General comes to this conclusion despite the fact that A.50 also refers to decisions rather than mere intentions and so his logic here seems rather strained. (para. 101). Great weight is attached to the phrase “in accordance with the withdrawing state’s own constitutional requirements” to allow for a change of mind where there is “a referendum, a meaningful vote in Parliament, [or] the holding of general elections which produce an opposing majority” (para.105).

Such facts may indeed induce a change of mind, but they hardly invalidate the constitutional basis of the original decision to issue an A.50 notification, as he appears to argue. His claim that such changes could mean that the “constitutional basis on which it [an A.50 notification] was sustained subsequently disappears”, is hardly true. The constitution remains the same and its legal requirements were never broken. People have simply changed their minds in accordance with the same constitution’s procedures.

It is hard to escape the conclusion that the Advocate General’s advisory ruling is as much political, as legal, and that he is “bending over backwards” to facilitate a change of mind by the UK. Whether his advice is heeded by the Court, and whether it creates an undesirable precedent for the future, only time will tell. But it is not difficult to imagine an EU Council in the future treating another A.50 notification with a “pinch of salt”, and not engaging seriously with the notice party until it becomes irrevocable after 2 years. Why bother, if it can be simply revoked, unilaterally, at any time until the two years are up?

Yes, some formal attempt at an exit agreement – bearing in mind the precedents created by the Brexit agreement – may be arrived at in order to meet the formal requirements of A.50 to negotiate a deal. But any member issuing an A.50 notification needs to be aware that the EU institutions have little incentive to engage seriously until they know that the notification is for real and a member is almost out the door. The real deals will be made with ex-members as third parties only after they have left, resulting in great political uncertainty and economic disruption in the meantime.

So well intentioned as the Advocate General’s advice may be, it could well end up having counter-productive political results. Far from being the nuclear option for an unhappy member, it may come to be merely a tactical negotiating device to be greeted with indifference until the EU institutions are convinced a member is really leaving, and that some interim arrangements are required to avoid unnecessary economic disruption.

I would not be surprised to see some more explicit provisions governing an A.50 notification withdrawal included in a future EU Treaty. The ECJ may wish to “legislate from the bench”, but the European Demos may well decide that such decisions should really be left to them. If the UK can change its mind about being a member, can they not change their minds about having the UK as a member?

Nowhere, in the Advocate General’s reasoning, is any weight given to the rights of other members who may have been adversely effected by the Brexit process. In dis-empowering the EU Council and other member states in the A.50 process, the Advocate general of the ECJ has done a disservice to the EU and created a recipe for much greater disruption in the future. Beware of lawyers making laws….

There has been much speculation as to what will happen when Theresa May loses the Commons Brexit vote, as she almost certainly will, on Dec. 11th. Most observers don’t expect that vote to be even close, with some estimating a margin in excess of 100 votes. Some speculate such a defeat will finally trigger a challenge to May’s leadership. But if Rees-Mogg’s co-conspirators couldn’t even muster 48 votes the last time around, it seems hardly likely they will be able to achieve the 158 votes required to win a vote of confidence against her leadership and trigger a leadership election.

The downside for them is that the rules dictate that they won’t be able to issue a renewed leadership challenge for another 12 Months if they fail. So they had better get it right the first time around. A lot will depend on how badly she still wants the job. So far she has won some grudging admiration even from her opponents for how she has stuck to her task against seemingly insurmountable odds.

The other downside is that the rules suggest a 12 week timeline for a full leadership challenge and the election of a replacement, which almost takes us outside of the Brexit timeline altogether. It’s hard to see the EU Council extending the A. 50 deadline just to allow a Prime Minister Johnson settle into his job. They have fulfilled their A.50 obligation to negotiate an exit deal. He can take it or leave it. The internal machinations of the Tory party are none of their concern.

But there is an alternative scenario…
Suppose May does lose the vote and declares that she will renegotiate the deal with the EU to “take account of the objections of the House”. Conservative MPs will be reluctant to pull the trigger before they can see what alternative deal she can come up with. Of course the EU Council have declared that the negotiations are over and cannot be re-opened, but there is one change that they, just, might be prepared to consider.

The original back-stop proposal involved just Northern Ireland remaining in the Customs Union and Single market (CUSM) if no alternative solution to keeping the Irish border open could be found or agreed. The DUP objected vociferously on the grounds that that would result in a border “down the Irish sea” and threaten the Union between N.Ireland and Great Britain.

In response, Theresa May agreed to keep all of the UK within the CUSM until an agreed solution to keeping the Irish border could be found – meaning effectively no border down the Irish sea. This also enabled Theresa May to minimise disruption for UK business until such time as a comprehensive free trade agreement between the UK and EU could be negotiated and agreed – and an alternative solution to keeping the Irish border open could be found.

This deal was greeted with howls of protest from both Brexiteers and Remainers, who noted that free trade deals can take many years to negotiate, and that the UK could remain stuck in the CUSM almost indefinitely, without a say in the ongoing development of its regulations, and without being able to negotiate its own trade deals or achieve full control of freedom of movement. For Remainers it was so obviously inferior to full membership. For Brexiteers the promise of a global Britain securing more favourable trade deals around the world was postponed indefinitely.

What has been less remarked upon is that it was also rejected by the DUP. For the DUP, anything, but anything, which hints at N. Ireland being treated any differently to the rest of the UK is an absolute no no, and they have a lot of practice at saying NO! Despite the fact that Theresa May’s current deal offers them the best of both worlds – access to the Single Market and the UK market with no hard borders – they have rejected it outright – to the howls of protest from the N. Ireland business and agricultural lobbies, who can recognise a gift horse when they see it.

But the DUP rejection also provides Theresa May with an opportunity should she wish to grasp it. As the DUP votes are lost anyway (and as they have been making common cause with Boris Johnson) she can revert to the original backstop proposal of retaining N. Ireland, only, within the CUSM until such time as an alternative solution to keeping the Irish border has been found. This would require at least a temporary border down the Irish sea, but she can argue that there are already controls on food, livestock and agricultural products down that border, and that these have no constitutional implications for N. Ireland’s status within the UK whatsoever.

She can present this “new” proposal to the Commons as an enormous concession by the EU, even thought that was the original EU proposal in the first place. Great Britain will be free to leave the CUSM any time it chooses, and N. Ireland can follow just as soon as an agreed mechanism for keeping the Irish border open has been found.  The DUP will of course again vote against, but Theresa May can hope to bring many more Remainer and Brexiteer votes on board to vote for a proposal which does not tie Britain to the rules of the CUSM indefinitely, or prevent it from negotiating its own trade deals.

Does this mean that Theresa May will win a second vote on this new deal? Probably not, as she doesn’t have an overall majority without the DUP’s 12 votes. However it does mean that the margin of defeat could be reduced from possibly over 100 to less than a dozen or so. Enough to raise hopes that a few Labour MPs could be seduced to voting for the deal by a knighthood, or frightened into voting for it as a no deal Brexit looms.

It would, at the very least, increase Theresa May’s bargaining leverage with the SNP, Lib Dems, and Labour as a hard “no deal” Brexit day approaches. If she survives that long. Or even wants to.

Arlene Foster and Nigel Dodds, Leader and Deputy Leader of the DUP.

The phrase “Brexit leadership” may seem to many to be both oxymoronic and moronic…
We don’t normally talk much about political personalities and leadership on this blog, preferring to analyse events in terms of economic, social and political processes. But one of the most striking features of the Brexit debacle is the incredibly poor leadership the UK establishment have shown on the issue from David Cameron onwards. What other major European power would have clowns such as Boris Johnson, David Davis, Liam Fox, Jeremy Hunt, Michael Gove, Jacob Rees Mogg, or Nigel Farage in elected or high office?

I don’t agree with their neo-liberal economics which has condemned a generation to housing and healthcare shortages, but Leo Varadker and Simon Coveney have been masters of the political process by comparison. Barnier has done a remarkable job, and even Juncker has been made to look competent by comparison to his UK tormentors. But what prompts this observation is that Theresa May, for all her many faults, is belatedly showing signs of leadership in stark contrast to her earlier role as hapless messenger girl.

No one can doubt the enormity of her task in converting Brexiteer delusions into an actual agreement, no matter how flawed from everyone’s point of view. She had a mandate to negotiate a Brexit agreement, and saw that through even if there were many miss-steps along the way. Now she has an even greater task to persuade the House of Commons to vote for her deal and seems to be about to take her case directly to the people of the country, over the heads of the House of Commons, in a general election style campaign.

Whether this campaign ends up being successful, or leads to an actual general election or second referendum, no one can yet tell. But it will certainly put the wind up both Brexiteer and Remainer MPs who would rather not face the people again just now. Cleverly, she is keeping all her options open in the event of losing a vote in the Commons – resignation, general election, a second referendum, or no deal – putting the fear of God into Brexiteers that they could lose Brexit altogether, and into Remainers that no deal is the default alternative.

If it were down to just the British people her strategy of encouraging unity and an end to divisive debate might just succeed, if only because many people are utterly fed up with Brexit and squabbling politicians and just want to “get on with it”. But I fear she may not have reckoned with just how obtuse her DUP “allies” can be. Divisiveness and obnoxious contrariness are their bread and butter. They are also impervious to how political sentiment may be changing “on the mainland,” and concerned solely with their survival as the leading force in unionism in N. Ireland.

If the DUP lose this Brexit battle, their credibility in N. Ireland will be shot. The Unionist vote could fragment between them and the Ulster Unionist party and various splinter groups allowing Sinn Fein candidates to capture a plurality of the  vote and the seat in even unionist majority constituencies. Nothing could be a greater nightmare for the staunch loyalist vanguard. Right now they are still in the fight and could probably hold onto their core vote, but if May’s deal wins out they are in for a day of reckoning. It was they who brought Brexit into N. Ireland against the wishes of the vast majority of the people and put a united Ireland back on the political agenda.

In any normal democracy, the recent transgressions of the DUP leadership would have disqualified them from public office. They used dark money to help fund the Brexit campaign in Britain, they oversaw the Renewable Heat Initiative which used hundreds of millions of taxpayer funds to encourage energy wastage in N. Ireland, they have been unable to form a government/Executive in N. Ireland for almost two years and have done what they could to undermine the Good Friday Agreement and cross-community relations in N. Ireland. Not much change then, from the early days of their founder, Ian Paisley.

But it may well be down to them whether Brexit happens and on what form it will take. It must be very rare in history that the fate of a great nation depends on such a poor bunch of leaders.

The European Court of Justice is today hearing a case to determine whether a state has the right to unilaterally withdraw an A. 50 notification of its intention to leave the EU. (case number C-621/18). The Inner House of the Court of Session in Scotland decided to refer the following question in a preliminary reference to the Court of Justice of the European Union:

`Where, in accordance with Article 50 of the TEU, a Member State has notified the European Council of its intention to withdraw from the European Union, does EU law permit that notice to be revoked unilaterally by the notifying Member State; and, if so, subject to what conditions and with what effect relative to the Member State remaining within the EU’.

The Irony of the ECJ deciding on the UK’s rights in this matter has not been lost on some observers, with some Brexiteers outraged the court is even considering the matter. A.50 provides that a member who has left the EU and wishes to rejoin must do so via the standard A.49 accession procedure. But A.50 is silent on what happens if a member issues an A. 50 notification and then changes their mind on the matter within the 2 year negotiation period before they actually leave, so some more clarity is welcome.
Oliver Garner has written a blog on the European Law blog arguing that such a unilateral revocation by the United Kingdom should be possible, so long as a decision is made to do so in accordance with the constitutional requirements of the Member State. He quotes arguments by legal scholars to the effect that it would be nonsensical to force a member state which has changed its mind to wait the full 2 year A. 50 negotiating period and then re-apply for membership under A.49, especially if there has been a change of government or popular mandate in the meantime.

He also notes that “Article 68 of the Vienna Convention on the Law of Treaties (VCLT) does explicitly address the issue of revocation of notice to withdraw from a treaty. This provision outlines that `a notification or instrument provided for in Article 65 or Article 67 may be revoked at any time before it takes effect’.” He quotes Closa to the effect that “`article 50 is not an institutional innovation of the EU: most international organizations require a `preparation’ or `cooling off’ period… In these international organizations, the delay between announcement and effective withdrawal serves as a `cooling off’ period allowing the withdrawing State to change its position.'”

I have responded to his article (in the comments) as follows:

The phrase “clutching at straws” comes to mind. Whatever way you look at it, the insertion of a simple clause or sub clause in A.50 providing for the revocation of an A.50 notification in certain circumstances would have made this whole question absolutely clear. The absence of such a clause is therefor damning. Clearly there was no intention to create such a “right” by the framers of, and parties to, the Treaty. You are asking the ECJ to create a “right” where patently none is provided for in the Treaty.

You must also take the separation of powers between the ECJ and the European Council and Parliament into account. The latter two institutions are charged with the political running of the EU. Clearly they could, at their absolute discretion, decide to accept a request for the revocation of an A.50 notification as a political act. However making a political decision to accept or reject such a revocation, and granting an absolute right to a withdrawing member to unilaterally withdraw their notice of leaving are two very different things. You are asking the ECJ to impose constraints on their powers and freedom of action which are nowhere alluded to in the Treaties.

There are also practical issues to consider. What is to prevent any member, dissatisfied on any matter, to issue A.50 notifications willy nilly only to withdraw them at the last moment if they manage to gain some negotiating leverage by doing so. The EU would be in ongoing turmoil, not knowing which notifications are for real, and which were purely tactical. Political decisions are best left to the political institutions, and the ECJ would be reluctant to intervene unless some action is clearly in breach of the Treaties. The Council and Parliament have wide discretion within the Treaties to make political decisions, and that is as it should be. The rights of any one member state are not absolute, but exist only insofar as they are provided for in those treaties.

The more interesting question is whether the Council can accept a revocation by weighted majority vote, or whether unanimity would be required. A. 50 does make provision for the extension of the 2 year notice period under A.50, but only by unanimous agreement. As a revocation most closely resembles an indefinite extension, meaning the notice party never leaves, it seems reasonable to assume a revocation would also require unanimity. That would make any decision to remain subject to the whims of each and every one of the remaining 27 member states – just as it takes only one member to block the accession of a new member under A.49.

The alternative point of view is that as an Exit Agreement only requires a weighted majority to be accepted by the Council, so should a decision not to conclude one and instead terminate the exit process also only require a weighted majority vote? It is a pity the ECJ is not being asked to adjudicate on this issue.The bottom line depends on whether the EU and UK continue to be on good terms as the A.50 process nears its end and the UK decides it wants to remain in after all. If relationships have become very strained there is always a possibility that a blocking minority might object to accepting a withdrawal of an A.50 notification. That too is as it should be. Membership of a club should be dependent on the willingness of all parties to work constructively together and to accept obligations as well as entitlements.

The UK has not always demonstrated a willingness to do so over the past 45 years of membership. It would be ironic indeed if it was the EU which ultimately decided it no longer wished to have the UK as a member and blocked attempts to terminate the A.50 process. Most Council members have expressed a willingness and indeed an eagerness to welcome the UK to remain in the EU should the UK change its mind so this seems a very unlikely prospect. However the invocation of A.50 should not be a cost or risk free action, and the possibility that some other members would be more than happy to see the UK or some other “difficult” member exit should not be entirely discounted. Other members have rights too, and the ECJ most take cognizance of their rights as well.

In a subsequent comment I addressed Oliver Garners points in relation to Article 68 of the Vienna Convention on the Law of Treaties (VCLT) and the norms of international law more generally:.

It is difficult to see how A. 68 of the VCLT can be said to apply when France and Hungary are not even signatories. On the wider question of whether international law custom and practice dictates that a notification of withdrawal can itself be withdrawn until such time as it takes effect, it should be noted that while A.50 provides for a maximum two year negotiating period before a member actually leaves, extendable only by unanimous agreement, some of it’s effects are immediate:

The UK has been excluded from some meetings of the Council, the Council and Commission have had to set aside a great deal of time and resources to conduct the negotiations, Sterling devaluation had led to some Irish food exporting companies with narrow margins having to go into liquidation, the Irish stock market is severely depressed despite a booming economy, and the political situation in Northern Ireland has been destabilized with little chance the devolved institution becoming functional again until and unless the border and wider ramifications for the Good Friday Agreement are addressed to the satisfaction of both communities.

Some of these effects may be irreversible even if the A.50 notification is eventually withdrawn. It is therefor only fair and reasonable that the EU27 have some say in whether an A.50 notification can be withdrawn or not, and indeed they may be inclined to put some conditions in place before agreeing to do so. The effects of an A.50 notification are therefore immediate, extensive, and sometimes irreversible, and the final act of leaving the EU is the end, not the beginning of the process set in train by the notification.

A.50 provides for an extension of the negotiating period by unanimous consent, and even explicitly provides for the situation where a member having given notice of leaving changes their mind – they have to re-apply for membership under A.49. You cannot simply short circuit that process by withdrawing an A.50 notification and acting as if it never happened. It is the gravest act a member can initiate and has immediate and inevitable consequences unless and until there is a change of heart by all parties to the Treaty.

Leaving is a political act, changing your mind about leaving is a political act, being allowed to rejoin is a political act. The CJEU will be most reluctant to interfere in the prerogatives of the Council, Parliament, and Commission to manage these processes, and the text of A.50 gives a clear, concise, and unambiguous description of how the process should be managed. It does not include giving the departing member a unilateral right to cause great upheaval in the Union only to change their mind if they don’t like the outcome of the negotiations, or if they have managed to gain more advantageous terms of membership through threatening to leave.

Sometimes the most simple straightforward reading of a text is also the correct one.

Although there have been a few other comments on the blog, none addressed the points I made, and the conversation quickly degenerated into a point scoring exercise on the arguments for and against Scottish independence. Perhaps people here have more to contribute on the subject.

At its most general level, my argument is that the failure of A.50 to provide for an explicit right of withdrawal of an A.50 notification is damning. If the framers and signatories had wanted to provide such a right, a simple paragraph could have done so.

Oliver Garner argues that the Sovereign will of a nation has to be respected even when it changes its mind. But there are 28 sovereign nations involved in, and effected by this process, and they too have rights.

Arguing that the Vienna Convention on the law of Treaties and general custom and practice in international law provides for the rights of a change of mind are weak tea indeed, when France and Hungary are not even signatories, and just because many Treaties provide for a “cooling off period” does not mean that such a provision is applicable to a Treaty which specifically does not provide for one.

Finally, we must recognise a distinction between politics and law. The Treaties provide the European Council and Parliament a wide degree of discretion as to how they should conduct their business. The ECJ should only intervene when they are clearly acting outside their Treaty given powers.

Ultimately, allowing the UK to withdraw its A.50 notification to the EU Council is a political decision that only the Council, in agreement with the UK, can make. The issue which needs to be resolved, for me, is whether that decision can be made by weighted majority vote, or whether unanimity is required.

The Brexit deal has been agreed by the European Council in the time it would take to eat a good breakfast brunch in a Brussels brasserie. No point in wasting a whole day on this sort of thing. It’s happening for the optics only, to send one clear message to all concerned: THIS IS BREXIT, this is the deal, we are not going to revisit it. Take it or leave it.

The House of Commons can huff and puss all it wants, vote for it, against it, amend it to its hearts content: But this is the deal. Mutti Merkel has said so. She wouldn’t have wasted her time coming to Brussels if anyone was going to reopen the debate.

Boris Johnson is absolutely right: This Brexit deal is a historic mistake, and he should know. He has been the prime mistake maker: leading the UK up the garden path of delusional dreams. Nothing encapsulates that delusion more than the gap between what this deal delivers for the UK and what the Brexiteers said they would be able to negotiate in “the easiest deal in history”.
The Gibraltar dispute was useful, from an EU perspective, in demonstrating that it is not just the UK that is unhappy with aspects of the Brexit deal. There has been an attitude in the UK that the EU will cave if the UK shouts loud enough, and demands certain changes.

Not only is this unlikely, from an EU perspective, because it is by no means certain that there are any changes, acceptable to the EU, which would bring a majority in the House of Commons on board, but re-opening the negotiations could open a Pandora’s Box of demands from other members among the EU27.

Sánchez has gotten his hour in the sun (or rather his people got to pull an all-nighter) and was made look strong in relation to Gibraltar ahead of the Andalusian elections. Merkel could perform her favourite “adult in the room” routine, and the UK is reminded that any renegotiation, even if it were to occur, would not be a one way street.

The centrality of the Irish border to the negotiating process and the shape of the final deal is also a reminder of how much stronger your negotiating position is if you have the backing of a powerful and united trading block. Varadker has performed the difficult task, for him, of saying as little as possible, without quite being able to wipe the smug smile of satisfaction from his face.

Good luck with trying to negotiate your own trade deals in the future if you turn down this deal is the message. Michel Barnier advised MPs to vote for the deal on the table, suggesting that a “no” vote could damage negotiations on the future relationship. “Now it is time for everybody to take their responsibilities, everybody,” he said. The deal was “a necessary step to build the trust between the UK and the EU” to build “an unprecedented and ambitious future partnership.” The EU is now even using the UK’s florid and meaningless piffle against it.

From day one, this negotiation has been almost a one way process: Brussels set down the timetable for the negotiations, stipulating they had to be complete this autumn. A.50 is actually very sparse to the point of being silent on the substance of the agreement itself, saying only that it should set out “the arrangements for [a members] withdrawal, taking account of the framework for its future relationship with the Union”.

It was Brussels which insisted that the agreement should deal with 4 basic issues:

1. An Exit Payment to settle outstanding liabilities
2. Provide for the continuing rights of EU citizens in the UK and UK citizens in the EU
3. Avoid a hard customs Irish Border, and (later)
4. provide for a Transition Period

It was Brussels which decided that the future relationship could be dealt with only when the above for issues had been settled, and that it should only be covered by a a vague aspirational and non-legally binding short document. It did so to prevent the UK from using the disruption caused by a hard Brexit as bargaining leverage in the new negotiations. In particular, the Peace Process in Northern Ireland was not going to be allowed to become a bargaining lever or collateral damage.

The negotiations on a future relationship will take place from a starting point of the UK being a third party outside the Union, seeking to preserve and retain a close trading relationship with the largest trading block in the world. Ask Canada how it feels. Ask Yanis Varoufakis for that matter. He too had the backing of a popular national referendum for his negotiating position. Little good it did him…

When the history of these negotiations is written, I would not be surprised to find that the vast bulk of the 585 page Brexit deal was written by EU officials, with the UK side getting to argue over a word here and there. And it was not necessarily because the UK negotiators being totally incompetent: they simply had no clear political guidance on what their negotiating priorities should be, and what trade-offs they could offer in return for their priorities.

The EU negotiators had the luxury of clear political guidance and a clear legal framework to work from. Juncker and Barnier took great care to keep all 27 remaining member governments on board. For many, Brexit was not a life and death issue and they were happy to let the Commission, Germany, France, the Benelux countries and Ireland take the lead. Nevertheless their achievement in maintaining a united front among the EU27 with only token dissent is remarkable.

Contrast that with the UK, where Conservative law makers and the DUP seemed to delight in undermining Theresa May’s negotiating position at every opportunity, humiliating her into embarrassing U-turns and rubbishing proposals before they had even been presented as opening negotiating offers in Brussels. Brussels negotiators merely had to sit and wait while their adversaries did the hard work of shredding their own proposals. Napoleon: “Never interrupt your enemy when he is making a mistake”.

A 26 page non legally binding “Political Declaration” dealing with the proposed future relationship between the EU and UK has also been hastily cobbled together to provide Theresa May with as much political cover as possible. It uses the word “consider” 19 times and kicks all the more difficult issues into the long grass of future negotiations. If the House of Commons has difficulties with the 585 page legally binding Brexit deal, the EU will be more than happy to accommodate those concerns by putting more emollient phrases into this text.

The EU strategy appears to be to draw a line under the legally binding text and redirect UK anger onto the political declaration. If the House of Commons passes various amendments to the Brexit deal the EU will seek to accommodate them, as best as possible, in the political declaration. But from now on, passing the Brexit deal through the UK constitutional process is essentially an internal UK matter. The EU can only negotiate with governments, and it has fulfilled its obligation, under A.50 to do so.

The DUP, meanwhile, is going almost beserk, angry that their natural allies in the business and agricultural communities in N. Ireland have abandoned them. There has long been a convention in N. Ireland politics for business and trade never to get involved in N. Ireland politics. Not only is it extremely divisive and damaging to business, but it used to be a matter of life and death. Seamus Heaney summed it up in the phrase: “Whatever you say, say nothing”. So for them to speak out publicly, in tandom with just about every other Northern political party is “a wonder to behold”.

It remains to be seen whether time and circumstance do their thing and House of Commons attitudes to this deal change when they consider the alternatives. Seasoned observers expect many more twists and turns in this tale before the matter is settled. Jacob Rees-Moggs’ dramatic and outraged challenge to Theresa May’s leadership – when it turned out he couldn’t even muster 48 MP’s to sign letters to that effect (from among his own 80 strong European Research Group caucus) may be a straw in the wind. Certainly Theresa May’s resilience in the face of adversity is drawing some respect even from her adversaries.

If there isn’t a majority in the House of Commons for this deal, or for no deal, and no other deal is in prospect, where do you go?

The EU and UK negotiating teams have finally come to a deal just in time for a November EU Summit and a pre-Christmas rush to have “a meaningful vote” on the deal in the House of Commons. There is no telling what mood conservative law makers will be in after they have been exposed to the Tory faithful back in their constituencies over the Christmas period. So the UK government strategy seems to be to get this over with as quickly as possible.

Initial reaction in the UK has been almost universally hostile even before the precise text of the deal has become known. This is where various Brexiteer delusions meet the harsh winds of reality: Boris Johnson is not altogether wrong when he claims that the deal is “vassal state stuff” with the UK continuing to be subject to some of the rules of the Single Market without having a direct say in their development over the years.

Ostensibly that has all come about because of a shared EU UK commitment to avoid a “hard” customs border within Ireland. Had it not been for Ireland’s continued membership of the EU, the fate of the Irish border would not have merited a moments thought on the part of Brexiteers, and indeed it it did not occupy any media or mind space during the referendum campaign, despite the Irish government’s frantic efforts to raise the alarm.
So Theresa May’s solution is for all of the UK to remain within the Customs Union and Single Market (CUSM) for a limited period, to be ended only when all sides are agreed an alternative mechanism for avoiding a hard border in Ireland has been found and implemented. For Brexiteers, this may mean never, and even Remainers are aghast: The deal is so obviously inferior to remaining a full member of the EU with a say in how the rules of the CUSM are developed in the future.

Most people in the UK are probably puzzled as to how such a seemingly peripheral issue as the border within Ireland could have become such a central driver of the progress of the negotiations and the shape of the final deal. But this would be to misunderstand Theresa May’s negotiating strategy: In reality, Northern Ireland, and the risk of a return of “the Troubles” there, was merely the lever Mrs. May used to prise open continued access to the CUSM and maintain “frictionless trade” for British business for the foreseeable future.

For the EU, this solution was only acceptable if British business continued to be subject to the rules of the CUSM so as to maintain a “level playing field” with everyone else.  The Brexiteer dream of striking out onto the world stage and negotiating their own trade deals with countries all over the world will have to wait until membership of the CUSM has been replaced by a Canada style free trade deal and an agreed mechanism for keeping the Irish border open.

Basically all the more difficult decisions have been postponed. British business can continue to trade with the EU (and the rest of the world) on current terms and thus avoid the disruption and chaos that no deal would have wrought. In fact very little will change on 29th. March except that the UK will no longer have a direct say on the future development of the EU.

Trade deals can take a very long time to negotiate and may never be ratified, as the aborted EU US trade deal has shown. Trump has shown more interest in tearing up existing trade deals rather than negotiating new ones, and even within the EU, new trade deals are no longer the preserve of the technocratic elite: they are coming under increasing scrutiny in national parliaments (all of which must ratify any new deal) as the benefits of globalization are no longer unquestioned dogma.

So what are the chances of Theresa May getting this deal through the House of Commons? Almost none, has been my view for the past two years, such is the gulf in expectations within the UK between what the Brexiteers promised, and what can be delivered in reality. Brexiteers must shout “BETRAYAL” as otherwise their little ruse to “take back control” (for themselves) will be uncovered. Somebody else has to take the blame for the obvious disparity between their promises and reality, and Theresa May is the designated fall girl.

The Labour opposition must do what oppositions must do: Oppose, even though what Theresa May has delivered looks very similar to what they themselves have been proposing. The important difference, of course, is that they want to be the ones to take back control, and it is more than convenient that it is the Tories who will take the fall for the obvious, and inevitable short comings of the deal. The consequences of Brexit must always be someone else’s responsibility.

For Remainers, the deal probably represents the least worst option if they can’t get their expressed wish for a second referendum to reverse the Brexit process. It avoids the chaos of the no deal option and raises the hope that the economic status quo can be maintained almost indefinitely, until a second opportunity to have a re-think on Brexit presents itself. But do they really want to be associated with such an unpopular deal? At best, they will hold their noses and claim they are only doing this to save the UK from the disaster of no deal. Some may vote against in the hope of precipitating a crisis that will lead to a second referendum. It’s a high risk strategy.

The DUP will be hypersensitive to any clauses which indicate that N. Ireland is being treated any differently to the rest of the UK. They too, want to take back control – of N. Ireland – something which has been denied to them by the Good Friday Agreement’s insistence on cross-community governance and “parity of esteem” between the Unionist and Nationalist communities. They claim to speak for N. Ireland even though they only received 28% of the vote in the 2017 Assembly elections.

And so they are happy to enforce differences between N. Ireland and Great Britain on marriage equality, abortion services, transparency of political funding, recognition of non-English languages, and the regulation of animal health and food products on an all-Ireland rather than on an all UK basis. But they have to be in control. Ceding control to the EU, Ireland, or even a future UK government is not an option.

So the choice for all in the House of Commons is to accept the current deal, or hold out for something better. For Labour, that something better is obviously a general election and the prospect of power. For Brexiteers and the DUP it is the prospect of toppling May and putting one of their own in charge with a mandate to conduct a more robust negotiation with the EU. They crucially need to convince the waverers that a better deal is still possible. May loyalists need to convince any waverers this is the best deal possible and the only alternative is the prospect of a no deal Brexit.

The EU can bask in a glow of satisfaction that they have discharged their primary obligation under A. 50 of negotiating an exit deal with a departing member. They have done so without throwing a continuing member (Ireland) under a bus or creating any damaging precedents for any other member who might seek to leave. If the UK now chooses to reject the deal and leave without any deal, then so be it: the choice and responsibility for the consequences is theirs.

The EU can afford to wait until expectations in the UK have moderated sufficiently in the aftermath of no-deal chaos to impose almost any deal they like. Certainly they are unlikely to revisit and substantially revise the existing deal on offer under any circumstances, including in the event of a change of government in the UK. Why would they?

For Ireland, the deal represents a triumph of diplomacy to be shouted about as little as possible in order to avoid making political life for Theresa May even more difficult. Ultimately, the Irish government is agnostic as to whether Theresa May survives or not – the Tories are no friends of Ireland – but it is in Irish interests to see this deal succeed. Seeing the DUP squirm may add some vicarious pleasure, but is not the point of the exercise. The hard won benefits of the Good Friday Agreement must be safeguarded, and this trumps all other considerations.

The consequences of this deal being rejected by the House of Commons are for another day. In the meantime we can watch as the British political establishment tries and perhaps fails to come to terms with the reality of Brexit. This is no time for schadenfreude.

Theresa May has survived numerous threats to her leadership to fight another day after a reasonably well received Tory party conference speech and UK Budget. The mood music on both sides of the Brexit negotiations appears to be that a deal can still be done in late November or early December at the latest. The adults have entered the negotiating room and remaining differences are being chipped away. A formula of words will be found to paper over the cracks and arrive at some sort of an agreement.

The markets will breath a sigh of relief and Sterling will rise. Much of he media will hype the achievement of a deal almost regardless of the content. Dire warnings of the consequences of “no deal” have had their effect of dampening expectations and only the churlish will point out how far short the deal falls from the Brexiteer claims of “the easiest deal in history” achieved because “they need us more than we need them”.

My skepticism over the prospects of a substantial deal has always centered on May’s ability to get any such deal through parliament. Have expectations been reduced enough to make the deal palatable? Are Brexiteers sufficiently desperate to agree any deal so long as it gets the UK out of the EU? Will Remainers vote for  deal so obviously worse than full membership because it avoids the nightmare “no deal” scenario? Can the DUP ever be appeased?
Certainly there has been a lot of “expectations management” going on. The UK government’s publication of 80+ “technical papers” on the preparations required for a no deal Brexit have concentrated minds wonderfully. Every day there are more dire warnings of the economic, logistical, and personal impact of a no-deal Brexit and the UK economy has already under-performed it’s peers by 2% of GDP since the referendum.

But the UK also brought a lot of economic momentum into the A.50 negotiation period and growth, employment, earnings and tax revenues have remained in positive territory. Leading indicators of reduced world growth, trade wars, and political instability may cut little ice when compared with the promise of an “end to austerity” and increased funding for the NHS. Never mind that there are still have several Billion more in cuts to welfare benefits in the pipeline, and government expenditure on services other than the NHS is stagnant, at best. The really poor vote less, and tend not to vote Tory in any case.

So how much will all of this matter? My baseline scenario is still that Tory hopes of substantial Labour dissident support for a Brexit deal are illusory and that the deal will fail to pass Parliament. May will then face a leadership challenge which she could lose despite retaining majority support among Tory MPs. The Tory membership have the final say and many of these are to the right of Atilla the Hun. There are a huge number of potential alternative candidates, but my guess is that Boris Johnson is still the favourite to succeed despite reports that his star has waned. The ghost of Churchill is too heavily engraved on the Tory soul, and BoJo has modeled his entire career on the wartime leader.

Boris Johnson will then fetch up in Berlin, Paris and Brussels with demands for “a better deal for Britain” failing which he will claim to embrace a no deal Brexit. Normally the EU would be keen to give a newly elected leader the cover of at least cosmetic changes to the deal so he can claim it as a victory, but I doubt that would be the case with Johnson. Politics will have moved on in Brussels as well as London, and no one will be keen to re-open a deal so painstakingly, and painfully negotiated.

Instead the EU27 will have been methodically preparing for a no deal Brexit while Johnson bluffs and blusters on. It is just possible that the EU27 will offer Johnson his preferred Canada +++ style trade deal in the political declaration in return for his agreeing to throw the DUP under a bus and effectively retain N. Ireland within the Single Market and Customs Union. If the DUP vote it down he can call a general election as a proxy for a referendum on his new deal.

If Corbyn is smart he will make negotiating better access for Britain to the Single Market and Customs Union the central plank of his campaign, and offer to hold a second referendum on the outcome of the negotiations where voters will be given the choice of Remaining or Brexiting on whatever terms he can negotiate. Giving voters a second choice will help him to retain the support of both Brexiteers and Remainers within his party. The rationale will be that you call one vote for industrial action, and then a second on whether to accept the results of the negotiations.

I would expect Corbyn, possibly with the support of the Scots Nationalists and Plaid Cymru, to be successful in forming the next government, and proceeding to seek an extension of the A.50 negotiating period in order to give time for renewed negotiations and a second referendum to take place. I would expect the EU27 to be heartily sick of the whole process by then, but the promise of a second referendum containing an option to Remain may be sufficient to achieve the required unanimous agreement of the EU Council.

Naturally, not being dependent on the DUP and being in favour of a united Ireland in any case, Corbyn will have no difficulty in allowing N. Ireland to remain within the Single Market and Customs Union. His main focus will be to try and get as many of the same benefits for the UK while regaining some increased Independence from Brussels in key Labour priority areas like state aid for companies, public ownership of utilities, and increased taxation for multi-nationals. A very different kind of post-Brexit deal to that sought by the Tories.

But there will be great public shock and anger when UK public opinion discovers that the EU price tag for giving access to the Single Market – a la Norway – is not all that much different than the net cost of full EU membership at the moment. But at that stage it will be too late – the no deal option will have been taken off the table. The second referendum will offer only two options: Remain or accept the Brexit terms as negotiated by Corbyn. Many in the UK will be tempted to vote for Brexit anyway, as anti-EU feeling will have been increased by perceived EU intransigence, and in the belief that better terms can always be negotiated later.

But then the EU27 will also need to box clever if they want the UK to vote Remain in the second referendum. Rather than simply giving UK voters a choice between Brexit and continued membership of the EU status quo as it currently is, the EU should seek to transform the debate by issuing a political declaration – akin to the political declaration on the future relationship between the UK and the EU27 accompanying the Brexit agreement – setting out their plans to reform the EU in the future.

The EU has been in constant evolution in any case, and many EU members and Commission Directorates will have plans for future reforms/developments/extensions of competencies and services in any case. The challenge would be to bundle these into a coherent document outlining a vision for what the EU will look like in the future, and getting it passed, in principle, by a weighted majority on the Council.

For many UK voters, voting to Remain in a second referendum would feel like a humiliation, even if they voted Remain in the first referendum. It would signal a loss of confidence in being able to make their own way in the world. A failure of negotiation, and a failure to stand on their own two feet. Asking them to go back on a previous decision would simply be rubbing it in.

What the EU27 would have to do is to transform this narrative of failure into one of a new opportunity to be part of a changed EU more in tune with UK sensibilities. People would not be asked to vote for the pre-A.50 status quo, but for an opportunity to be part of a change process within the EU in the future. It would almost be like voting to re-join a changed EU, with the Brexit debate being given some credit for acting as a catalyst for this change.

It matters little in the short term how substantive those “reforms” of the EU eventually turn out to be. The key point will be to give voters an opportunity to change their minds in changed circumstances without feeling that they have been humiliated into doing so. Corbyn will have very different priorities for a EU membership in the future in any case. It remains to be seen how receptive an EU increasingly dominated by centre right and far right parties will be to his ideas for reforms. My guess is not very, and in many instances that will be a pity.

But elections have consequences, and those consequences are not confined to the UK. My hope would be that the whole Brexit episode will be a salutary lesson to all extreme nationalists hoping to hijack the political agenda in their home states in order to leverage sectional advantage against the common good.  Just as Brexit could transform the political climate in both the UK and EU, and generally not in a good way, a failure of Brexit could refocus minds on the benefits of working together to address common challenges.

Brexit has been a monumental distraction to the challenges presented by global climate change, migration patterns, growing inequality, government austerity, and a failure of the public good to trump private greed. It has sought to harness the forces of national chauvinism, disaster capitalism, and political narcissism in the service of national elites “taking back control” in order to leverage their interests against the common good more effectively. So far it is too early to say when and if that tide can be turned. The November mid-terms in the USA will give us more information on this. But defeating the forces behind Brexit has to be a priority for any progressive political agenda.

The scenario painted above contains too many “ifs” and “buts” to be the most likely scenario. It is probably less likely than a no deal Brexit with disastrous consequences. However we must hope for the best, even as we prepare for the worst.  The main thing is that it is still possible to imagine a better alternative future. There is still a glimmer of hope.