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Westminster Reflections: Sir Bernard Jenkin MP tackles the question of what’s really happening about Brexit?

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When the history books are written after the present heat of political events has cooled, it will be plain for all to see how British politics came to this point and why the House of Commons rejected the Draft Withdrawal Agreement so decisively.

First was the impetuous decision of a young and ambitious Prime Minister in the Bloomberg speech of January 2013 to close down the question of the UK’s relationship with the EU.  He proposed a “bluff call” referendum.  The people would surely never dare vote Leave?  Following the Scottish independence referendum which he had narrowly won, he was sure he would win this one.  However, the question, Leave or Remain, unleashed a pent-up hostility towards the privileged elite in politics and business, of which the EU is the prime example.  The Leave victory exposed the massive gulf that has opened up between those who govern and the governed.

Then UK government invoked Article 50 before it had a negotiating plan and has been divided and dithering throughout.  It allowed the EU to dictate the terms of the negotiations, as though the UK was bound by the EU’s self-imposed negotiating mandates. So, the UK has offered vast sums to the EU, in return for no assurances at all about any long-term relationship.

Most elected politicians, and nearly all the unelected ones in the House of Lords, and the vast majority of serving and retired civil servants and diplomats are at best reluctant Leavers.  Many are trying their best to deliver the referendum result, particularly serving civil servants.  But many, including some significant serving ministers, are openly or tacitly campaigning to reverse the referendum result.  Former prime ministers (exempting David Cameron whose dignified silence is to be commended) and others have wantonly undermined their own country’s negotiating position with their Brussels lobbying and public advice.

The result of all this is that the draft Withdrawal Agreement and Political Declaration is so awful (perhaps deliberately so) that it suffered a humiliating defeat in the House of Commons.  One expects opposition parties to cause trouble, but 110 Conservatives (who mostly supported leave) and all ten Democratic Unionists (who all voted leave) voted against.  The EU negotiators now feel they have been misled by the UK government, who promised a much closer and more biddable result. And far from finishing off Brexit, there is now a growing horror across the EU at the prospect of the UK making 29 March into a unilateral declaration of independence.

Wikipedia says “A unilateral declaration of independence (UDI) is a formal process leading to the establishment of a new state by a subnational entity which declares itself independent and sovereign without a formal agreement with the national state from which it is seceding.”  That pretty well sums up what an increasing number of people in the UK want the government to do.

At the time of writing, the Prime Minister is seeking to ameliorate the Agreement but maintains the House of Commons faces a choice between three options; either her deal, or ‘no deal,’ or no Brexit.  Maybe the House of Commons will somehow close off the ‘no deal’ option, but the vast majority of Commons constituencies voted Leave.  That is why the House of Commons voted so overwhelmingly to invoke the Article 50 process.  It also explains why, in the end, Parliament passed the EU (Withdrawal) Act 2018, passing the 29 March ‘exit date’ into UK domestic law. It is harder than it looks to change this law, particularly if there is no policy or objective other than to delay.  A mere motion to delay will have no legal effect.

An improved Article 50 agreement would be best, but without it, trade can still be facilitated. The EU Commission has announced that it will allow EU banks to continue to have access to the City of London for services such as euro-bond clearing. The UK will still be in the Common Transit Convention. Trade is in both of our interests. It would be wise for the EU and the other 27 to continue to roll out more smoothing-over measures as the 29 March approaches.

In particular, they should look at GATT Art.XXIV. This permits an exception to the ‘most favoured nation’ principle (that provides a country must apply the same common external tariff to all trade partners unless there is a full trade agreement). If the EU and the UK were to conclude an interim agreement that commits to concluding a future agreement to establish a free trade area, then under WTO rules we could continue to trade without tariffs or quotas on that basis for up to ten years.

As much as it is in the EU’s economic interest to do so, it is in its political interest too. Article 8 of the Treaty on European Union places an obligation on the EU to ‘develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness.’ Plenty of people in the UK think the EU is committed to inflicting a ‘punishment Brexit’ on the UK, but Article 8 shows the EU to be bound by values that we will all continue to share. If the UK wants to drop barriers to trade, and the EU likewise, then surely agreement and compromises will be quickly found.

Gervase@aumitpartners.co.uk

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