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No deal -v- the deal -v- no Brexit

Tomorrow, Parliament votes – yet again – on whether to accept the latest Brexit withdrawal agreement, put together at the last minute after Prime Minister, Boris Johnson, agreed to key concessions (yes, he blinked first).

Over three years after the EU referendum, the choice still facing the country is the deal (as revised), no deal, or no Brexit.

Yes, all those options – legitimately and democratically – are still possible outcomes from this nightmare of a journey, although Parliament has specifically voted to avoid a no deal Brexit.

Did the electorate truly realise just how complicated Brexit would be when we had the referendum on 23 June 2016?

Clearly not.

Exiting the EU has taxed some of the best legal brains in the UK and the rest of the EU, and even many of them are now scratching their heads.

Brexit is not simple, but the referendum question was ridiculously simplistic – and the choice of just one of two one-word answers in response totally unrealistic.

The country clearly didn’t have enough information to make a pragmatic choice or decision in the referendum.

And even now, the details of Brexit are so arduous and perplexing that many people are struggling to understand what any of it means.

Would the electorate have voted for Brexit if they had known on 23 June 2016 what we know now? The evidence indicates definitely not.

Professor Adrian Low, who has been analysing all the polls since referendum day, told Reasons2Remain today:

“The latest polling figures, from YouGov since the end of August 2019 for Great Britain, remain very grim reading for Brexiters.

“From a winning position of 52% at the referendum, their support has dropped to an average of less than 46%, whilst those who think it wrong to leave are now at 54%.

“When the whole of the UK and Gibraltar are taken into account and new voters included the majority for remain is now over 10%, much more than the 3.8% for leave at the referendum.

“Poll after poll – 79 consecutive polls, from YouGov alone – since 2017’s general election show that UK no longer wants Brexit. The figures are supported by polls from many other companies.

“One poll, or maybe a handful, can be wrong, but not this time. There are too many of them saying the same thing.

“The will of the people is to remain in the EU.”

(For more details see data.reasons2remain.com)

Given the choice of the deal, no deal or no Brexit, it is becoming increasingly obvious that ‘the people’ by a substantially clear majority now want ‘no Brexit’.

Even by the government’s own independent assessments and admission, ‘no deal’ would be catastrophic for the UK.

But Boris Johnson’s new Brexit deal means that Britain will face a cliff-edge hard Brexit, from 1 January 2021, which opposition parties have called much worse than Theresa May’s Brexit deal.

The EU asserts – and the government agrees – that ‘the deal’ is the only deal on the table and there cannot be any other deal offered or negotiated.

So, the realistic choice now comes down to ‘the deal’ (the withdrawal agreement) or ‘no Brexit’.

Who can make that choice? Currently, only Parliament, unless MPs agree to put the choice back to us, the people, in a new referendum.

▪ WHAT HAPPENS IF PARLIAMENT VOTES AGAINST THE DEAL?

If Parliament tomorrow votes against ratifying the withdrawal agreement (the new deal), and also votes against leaving the EU with no deal, then the provisions of the ‘Benn Act’ kick in, requiring the Prime Minister to request a three-month extension of EU membership.

That would give time to consider different options, including a new referendum and/or a snap general election.

It’s possible that the EU will refuse to extend our EU membership until 31 January 2020, as required by the Benn Act.

If that happens, then the UK will leave the EU with no deal on October 31, UNLESS Parliament decides to REVOKE the Article 50 notice to leave the EU.

The UK could do that – unilaterally just cancel Brexit – as confirmed by the European Court of Justice.

There’s also a legal challenge being heard in Scotland’s highest court today, claiming that the new withdrawal agreement is illegal.

Campaigner Jo Maugham QC, whose brainchild is the Good Law Project, is arguing that the new deal contravenes legislation in the ‘Good Friday Agreement’ that prevents Northern Ireland forming part of a separate customs territory to the rest of the UK.

Section 55 of the Taxation (Cross-border Trade) Act 2018 prevents Northern Ireland from having different customs rules than the rest of the UK, so he might have a valid legal point.

If the new withdrawal agreement is found to be illegal, then clearly it collapses, and according to Mr Maugham, the Prime Minister will then be required under the Benn Act to seek an extension.

(Click for the latest news about this case)

▪ WHAT’S NEW ABOUT THE DEAL?

The only change is that the Irish backstop – which was a sticking point when Parliament three times rejected Theresa May’s version of the withdrawal agreement – has been scrapped.

Instead, all of the UK will leave the EU customs union.

There will, however, be a ‘legal customs border’ between Northern Ireland and the Republic of Ireland.

But in practice, there will be a customs border between Great Britain and the island of Ireland, with goods being checked at “points of entry” in Northern Ireland.

When it comes to the regulation of goods, Northern Ireland would keep to the rules of the EU’s Single Market, rather than UK rules.

Yes, it’s complicated. The new withdrawal agreement is 537 pages long – just a few pages shorter than Mrs May’s proposed agreement. (Click for the full text.)

▪ WHAT’S OLD ABOUT THE DEAL?

With the exception of the scrapping of the UK-wide Irish backstop, and changes to the non-binding ‘political declaration’, there are no key changes to Theresa May’s original agreement.

As shown in my graphic, the new deal means that from 1 November, there will be a ‘transition period, ending on 31 December 2020 as previously agreed.

During that time, the UK would continue to be ‘in’ the EU, as if we were a member as now, except we would have to obey almost all the rules of the EU, including any new rules, without any say in them.

Free movement rules would continue until the end of the transition period, and the UK would also still pay into the EU budget as before.

But during the transition period we would no longer be a member of EU institutions, including the European Parliament (so our MEPs would come home).

During the transition period, the European Court of Justice will have full jurisdiction, but only limited jurisdiction afterwards in special circumstances.

The transition period could be extended by one or two years at the most.

▪ WHAT HAPPENS AFTER THE TRANSITION PERIOD?

We don’t yet know. The new withdrawal agreement doesn’t cover the long-term relationship between the UK and EU after Brexit.

The UK’s future relationship with the EU is outlined in a so-called ‘political declaration’, but this merely provides a wish list, which is not legally binding.

This declaration says that both sides will work towards achieving a Free Trade Agreement (FTA) .

The text also contains a new paragraph on the so-called “level playing field” – the degree to which the UK will agree to stick closely to EU regulations in the future.

Previously, references to a “level playing field” were in Theresa May’s legally binding withdrawal agreement, but now they only appear as a wish in the non-binding declaration.

The wish is that the UK and the EU should “uphold the common high standards […] in the areas of state aid, competition, social and employment standards, environment, climate change, and relevant tax matters”.

But there is currently no binding commitment to such goals.

▪ WHAT DOES THE NEW AGREEMENT MEAN IN PRACTICE?

Professor Steve Peers an expert in EU law at Essex University, has today published a fully summary of the latest withdrawal agreement. He commented today:

“The absence of a UK-wide backstop means that the end of the transition period will create a new ‘no deal’ cliff edge for the UK’s new relationship with the EU.”

Professor Peers explained that three different groups of MPs opposed to the withdrawal agreement for different reasons:

  1. Those MPs who want to obtain a ‘harder’ Brexit (fewer ties to the EU, more capacity to deregulate);
  2. Those MPs who want a ‘softer’ Brexit (stronger ties to the EU, less capacity to deregulate);
  3. Those MPs who want to increase the chances of preventing Brexit completely.

Commented Professor Peers this afternoon:

“Only one of the three groups could achieve its intended objective, and the other two groups would have gambled and lost, putting themselves further away than before from their ideal outcome.”

And his conclusion:

“As things stand, if the revised withdrawal agreement is approved, it’s the hard Brexiters who won their gamble, and the soft Brexiters and Remainers who made a serious tactical mistake.”

So, a WARNING: Boris Johnson’s new deal could easily become a catastrophic NO DEAL BREXIT when, as scheduled, the transition period ends on 31 December 2020.

 

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