EU referendum, brexit and the aftermath

In the days after the Brexit vote, a favourite taunt of Leavers was to tell those who were warning of the difficulties of Brexit that such critics were “in denial” and were indulging in “wishful thinking”. Brexit meant Brexit and it was now inevitable. But it is now evident that it is the Brexiteers who are denying the challenges of reality and wishfully thinking away the problems they now face.

The Canadian diplomat Jeremy Kinsman has a scathing phrase for the predicament of the pro-Brexit UK government. The Brexiteers, the former high commissioner to the UK and ambassador to the EU, observed, “are the dog that caught the bus: they hadn’t thought what to do next”.

The UK government does not know what to do about Brexit. This is not a rhetorical exaggeration, it is a statement of fact. As the foreign affairs parliamentary select committee reported recently (paragraph 19):

“The previous Government’s considered view not to instruct key Departments
including the [Foreign and Commonwealth Office] to plan for the possibility that the electorate would vote to leave the EU amounted to gross negligence. It has exacerbated post-referendum uncertainty both within the UK and amongst key international partners, and made the task now facing the new Government substantially more difficult.”

(The committee, at paragraph 17, also generously adopted the view of this blog that it is not so much that the UK government does not have a plan for Brexit — it does not even know what is to go into a plan.)

The scale of the Brexit task ahead is becoming plain, even if there is still shapelessness in policy. Many would say the job is impossible, at least in the short to medium term.

Take for example the need for an exit agreement with the EU. In the memorable example of Gus O’Donnell, former cabinet secretary and head of the civil service: Greenland, population less than Croydon, one issue — fish, and it still took three years for it to leave what was then the EEC. There is no sensible reason to believe that the UK could extract itself from the EU (a more complex entity than the EEC) in the two years envisaged by Article 50.

This is no surprise: Article 50 was never intended to be a practical provision. It was there just for decoration. It was an ornament, not an instrument. According to Reuters, the former Italian prime minister Giuliano Amato is quoted as saying:

“I wrote Article 50, so I know it well,” Amato told a conference in Rome, saying he had inserted it specifically to prevent the British from complaining that there was no clear cut, official way for them to bail out of the Union.

“My intention was that it should be a classic safety valve that was there, but never used. It is like having a fire extinguisher that should never have to be used. Instead, the fire happened.”

Another person claiming credit for Article 50 (you would think no one would want to admit to authoring the provision) is the British diplomat Lord Kerr. He explains that it was inserted into the Lisbon treaty as a sop to the Eurosceptic media.

Regardless of who wrote the provision, no one can say that it provides a feasible process: the departing member state may have the immense advantage of setting the timing of the notification; but then the see-saw reverses dramatically, giving the remaining member states a near-absolute advantage in negotiating position. Any extension of the two-year period cannot be taken for granted, and so unless an agreement can be reached in less than two years, the member state is ejected. It would be a weird and unworkable way to deal with a complex negotiation of the nature required. Article 50 may have “worked” as a work-around negotiation ploy for Amato and Kerr but it does not work as a legal framework.

This is why any Brexit may perhaps be by a new treaty rather than by the unfit-for-purpose Article 50. But this would create new problems. Most notably, it could require a fresh referendum in the UK. It would also need unanimity by the remaining member states.

Then there are the international trade agreements that the Brexiteers say the UK should enter with the rest of the world. There are many difficulties here. The UK has no trade negotiators; the rest of the world will want to see what the UK-EU arrangement is before committing to a trade deal; and Britain has a weak and needy negotiating position. Such negotiation is as hard-headed an exercise as one can imagine, and the inexperienced UK ministers and officials will be lambs wandering into a slaughterhouse.

The competency of the British government to negotiate high-value complex commercial agreements on important matters at speed and under media pressure against unsentimental counter-parties can be summed up in three letters: PFI. The deals are disasters waiting to happen.

It cannot even be taken for granted that the UK will have an easy ride becoming a World Trade Organisation member in its own right. As former WTO staffer Peter Ungphakorn points out, there is nothing simple about the UK gaining WTO status post-Brexit.

In the face of these stark problems, what has marked the first month since the referendum result is a certain lack of seriousness by the Brexit government. The new international trade secretary, Liam Fox, is reduced to boasting of the opening of three one-person trade kiosks in the US, while his remarks about the UK leaving a customs union had to be “clarified” by the prime minister. Neither the US nor the Canadians are in any hurry to commence negotiations before they can see what Brexit looks like. There is confusion in Whitehall about the remits of the three Brexit departments. There are desperate (and possibly unlawful) demands that trade deals be tied to overseas aid. In an important post, Charles Grant has detailed the six deals the UK government has to do. Serious issues such as the status of EU nationals in the UK and what will happen to “acquired rights” on Brexit have still not been addressed.

No one in government has a clue. Pro-Brexit supporters demand a sudden Brexit without any regard to these problems: see this Bernard Jenkin piece in the FT, and the comments beneath are perhaps the most brutal you will see on this website.

In the meantime, the hurdles to Brexit are accumulating. Theresa May, the new prime minister, has spoken of there being a need for a UK-wide approach, and she now also wants to consult British dependencies. Politicians in Scotland and Northern Ireland (majorities in both of which voted to remain in the EU) are alert and agile in turning the fall-out from Brexit to their benefit. As with the (now seemingly abandoned) British Bill of Rights, the devolution settlements and the Good Friday Agreement are not mere after-thoughts for Westminster politicians, but things that shape what can and cannot be done easily by the supposedly sovereign parliament.

None of this is to say Brexit is impossible. It can be conceivably brought about if there is sufficient political skill and will-power. In its rewriting of domestic law and policy and its refiguration of foreign and trade policy, Brexit will be the single biggest exercise by any UK government in peace time — and all this on top of governing a country in a period of austerity with limited public spending and a small majority. And it is for an objective that few in Westminster and Whitehall genuinely want.

The 52 per cent vote for Leave in a non-binding referendum will increasingly seem flimsy against the sheer magnitude of the task ahead. If Leave politicians were candid and realistic about the years, sweat and tears ahead, you could believe they were up to it. But they maintain it is easy, and unless their attitude changes, it is this complacency that will defeat them. Denialism and wishful thinking are not enough.

David Allen Green, a lawyer and journalist, writes the law and policy blog for FT.com.