Those of us who are sceptical of how the UK government is going about Brexit are often accused of being unhelpful. So here is a constructive blogpost, setting out how Brexit should and could be done, if it is to be done at all.
Step one: reconsider the method of departure
Article 50 is not the only means by which a member state can leave the EU. The provision, of course, provides the only way by which a member state can (1) lawfully and (2) unilaterally leave the EU. Any other unilateral departure would breach international law, and that would not be sensible for any country wanting to sign new international agreements.
But the UK can leave the EU without Article 50 by agreement, for what is done by treaty can be undone by treaty. There is no reason under international law why Britain could not leave the EU by means of a treaty. It does not need to be trapped by the Article 50 process.
Such a treaty would require the approval of the remaining 27 member states but that, in effect, is the position with the exit agreement (although supposedly qualified-majority voting would be enough). Unanimity would certainly be required for the follow-on deal covering trade and so on. So why not just cut straight to it, and have an overall treaty for both departure and the follow-on matters?
Article 50 was never intended to be used, and it is not fit for purpose. It was meant to be an ornament, not an instrument. The provision was drafted by diplomats, not practical lawyers, and it shows. There is nothing in the EU treaties that mandates it as the exclusive route out of the EU. And there was nothing in the referendum question about it being the only means of departure.
The most serious issue about Brexit is time: two years is not enough for the UK to do everything necessary to leave the EU, both domestically and in respect of negotiation. Even if former prime minister David Cameron had not irresponsibly prevented the civil service preparing for a Leave vote (it being one of two foreseeable outcomes of a binary referendum), there would not have been enough time.
There certainly has not been enough time under Prime Minister Theresa May, who mistakes fighting pointless cases in the Supreme Court, and calling and then losing needless general elections, for “getting on with the job”.
If the Article 50 process cannot be converted into a more general treaty negotiation, the UK should insist on an extension of time. There is nothing at law preventing the EU and Britain agreeing to a more sensible period of, say, five years — or even until further notice. Article 50 can be paused if there is political will.
The EU’s absolute priority is that Brexit should be orderly, not that it be done at speed. It may at the moment suit Brussels for it to be done quickly. But if the EU accepted that an orderly — and fair and sustainable — Brexit was more likely (or only possible) with more time then it could not easily object to the delay.
Step two: accept the approach so far has been botched
Many Leavers could not believe their luck that they won the referendum with a small but clear majority. It is understandable that they have headed with haste head-first through this window of opportunity lest the Remoaners regroup and frustrate the process.
This rapidity, however, has led to mistakes. There has been no preparation for the negotiations. Mrs May asserted red lines without careful strategic thought. The options of staying, even on an interim basis, in the single market and the customs union were ruled out. There was a complete objection to the jurisdiction of the European Court of Justice without thinking through how it would affect a range of less obvious issues, such as Euratom. The UK government — four months after the Article 50 notification was sent — still has no obvious position on most of the matters up for negotiation.
There also should have been a thorough and detailed investigation of what needs to be done domestically, in respect of the dozens of areas of policy from fisheries to civil justice that will be affected by Brexit. This practical exercise has hardly begun. Whitehall is still working out what questions to ask, never mind the answers.
A new start would mean the silly rhetoric of Boris Johnson, Liam Fox and so on could be disowned. The cakes and whistles can be put away, the children sent home from the party and the adults can then sort out the damage.
The government will find it hard to admit that the approach of Mrs May to Brexit has, so far, been a failure and that a fresh start is needed. But if this is combined with securing more time then the UK can approach a second attempt at Brexit in a more sensible way.
Step 3: broaden and deepen support
The EU has managed to keep unanimity among the remaining 27 member states. Mrs May cannot even keep unity among the 24 or so ministers who attend cabinet, still less with her own back benchers. The prime minister does not have the support of the official opposition. She only has a bare majority in the House of Commons because of a deal with the Northern Irish Democratic Unionist party. And there is opposition from the Scottish and Welsh governments.
The UK is in disarray. It cannot keep all four home nations on board. Before the Supreme Court decision in the Miller case, and the loss of the majority at the general election, Mrs May’s government was even seeking to minimise the role of parliament.
For Brexit to succeed requires the government’s position to have broad and deep support domestically. There needs to be the UK equivalent of the cohesion of EU27.
The UK could learn from how Michel Barnier and his team forged and retained the EU’s single position: by consultation, openness and confident leadership. Common interests were identified and potential conflicts addressed. There has been near-complete transparency. The EU has prepared for Brexit in open view.
Such an approach would be strange to Whitehall, especially to a politician such as Mrs May with her secretive Home Office background. But the EU shows how it works, and the UK could adopt the same mature approach.
Step 4: be open-minded about transitional arrangements and eventual outcomes
The goal of Brexit is for the UK to no longer be bound by the EU treaties: that is, to be no longer on the list of member states. As long as that goal is achieved, a sensible pro-Brexit government should not be precious about how it is done.
The UK can still be a member of a customs union, temporarily or permanently, with the EU and not be a member of the Union. There are perhaps even ways the country can be part of the single market and not be a full member of the EU. The extraction of something that has taken 45 years to build up should be done in managed phases.
Not everything has be done at the same pace: policy areas can be taken out of the scope of EU law and policy at different speeds.The important thing is that the eventual objective is attained. Brexit should proceed in an orderly manner that works in every policy area — and this is unlikely to be all at once and quickly.
Step 5: keep the mandate
Crucial for a slow, sustainable, methodical, broadly based and open-minded Brexit is for the referendum “mandate” to stay in place.
But if that mandate is extinguished — “exorcised” may be a better word — then the opportunity disappears. The fear that the mandate will not be there forever explains why many Brexiteers want to get it done as swiftly as possible.
There are at least three ways in which the mandate may be extinguished. There could be a further referendum, or (which would be preferable, if you take parliamentary supremacy seriously) it could be done by the House of Commons reasserting itself, or there could be some significant event that renders the mandate superseded.
The third of these cannot be guarded against with total confidence — but either of the other two are more likely to happen if Brexit fails (or is seen to fail). And with the loss of the mandate, Brexiters are unlikely to get another chance for at least a political generation; their priority should be to not put the mandate in jeopardy.
But if the mandate is kept, the Brexiters could and should take their time to get the process right.
The need for sincerity and seriousness of purpose
The Brexit policy of Mrs May’s government is not working.
What needs to be done domestically has hardly commenced. The UK is unprepared and losing ground in the negotiations. Nobody knows what the country’s position is on most exit issues, and there is no breadth or depth of support for any of the positions it has managed to formulate. Brexit is not going well. It looks a disaster about to happen.
Like Dirty Harry’s punk, those seriously in favour of Brexit need to ask themselves if they feel lucky. If not, but they are still set on leaving the EU radical rethinking is required. They should admit that a new approach has to be adopted.