The author of this article is Paul Sheard
This article was first published in Briefings for Brexit and we republish with their kind permission.
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The EU and its apologists insist that it will not ‘reopen’ the WA. There are weak legal and political grounds for such a stance, whereas three strong political incentives exist within the EU to reach an agreement – and soon. But Britain’s new prime minister must convince the EU that he is determined to leave on October 31 if it continues to refuse satisfactory renegotiation.
A commonly heard view recently is that, no matter who emerges as the next prime minister of the United Kingdom — on current form almost certainly Boris Johnson — the European Union will continue to refuse to “reopen” and renegotiate the Withdrawal Agreement. That would seem to leave one of three outcomes possible: the UK leaves the EU on October 31 without an agreement; the UK government blinks, and seeks and obtains a further Article 50 extension; or the new prime minister gets the Withdrawal Agreement over the parliamentary line by securing some concessions, which are reflected in the Political Declaration. It seems far more likely, however, that the EU will agree to renegotiate the Withdrawal Agreement, assuming that the new prime minister can convince EU leaders that he would prefer the UK to leave without an agreement on October 31 rather than face either of the other two options and, importantly, is able to do so (that is, is not thwarted by parliamentary maneuvers).
Three things suggest that the EU will reopen and renegotiate the Withdrawal Agreement.
1 The EU’s position is increasingly untenable
First, once a new UK government is in place, the EU’s position of refusing to negotiate with the UK will become increasingly untenable. The EU has no grounds to refuse to negotiate with the UK and negotiating means reopening the Withdrawal Agreement. The EU may try to cling to the argument that the European Council and the UK Government endorsed a Withdrawal Agreement on November 25, 2018 and, as far as that is concerned, it is the end of the matter.
But the endorsement of the Withdrawal Agreement at the November European Council meeting was not the end of the matter; it was one important staging point on the way to reaching a final agreement. Subsequent developments in the UK have demonstrated, all too dramatically and painfully, that the UK was not able to reach agreement with the EU “in accordance with its own constitutional requirements”, as stipulated in Article 50 of the Treaty on European Union.
If the EU were to continue to refuse to renegotiate by allowing for the possibility of amending the Withdrawal Agreement, by October 31 the absurd situation will have been reached of the EU refusing for the best part of a year to negotiate with the UK. This makes a mockery of the European Council’s own “core [negotiating] principle”, as stated in its April 2017 guidelines for Brexit negotiations, that “nothing is agreed until everything is agreed”. Manifestly “everything is not agreed”, so on that basis “nothing is agreed”. If nothing is agreed, what is the EU’s basis for refusing to negotiate? The moral and constitutional ice upon which the EU is skating is looking decidedly thin.
Lest it be thought that the EU has been refusing to reopen the Withdrawal Agreement because of the logistical difficulty of the EU27 reaching agreement on its side, consider this: All that is required on the EU side for it to agree on a renegotiated Withdrawal Agreement is for the European Parliament to pass it (by simple majority) and the European Council to follow suit (by qualified majority of the EU27, meaning at least 20 member states comprising at least 65% of the population of EU27 member states). No protracted process of seeking approval from national parliaments is involved.
2 A political game-changer
Second, the change in prime minister is literally a game changer. It changes the nature of the bargaining game between the EU and the UK. A little bit of game theory goes a long way here.
It seems fair to surmise that both the EU and the UK would prefer the UK to formally leave the EU in a mutually agreed upon way, as provided for in the Treaty on European Union, rather than do so without an agreement. It is also clear that the EU preferred the Withdrawal Agreement, as endorsed last November, to some modification of it, centering on the Irish backstop, sufficient to gain a majority in the UK Parliament.
This implies that, faced with a choice between a modified Withdrawal Agreement and a no-deal Brexit, the EU would choose a modified Withdrawal Agreement. But Prime Minister Theresa May never confronted the EU with that choice. Rather, almost as if doing the EU’s own bidding, she persisted in trying to gain parliamentary approval of the Withdrawal Agreement and acceded to a no-deal Brexit being taken off the table. So, in effect, until now the EU has faced a choice between the Withdrawal Agreement and a sufficiently modified Withdrawal Agreement, and, predictably, it has stuck to the former.
The calculus for the EU is about to change. It will do so if, as all the current indications suggest, the new prime minister can convince the EU that he is fully prepared for the UK to exit the EU on October 31 without an agreement in place. That would be the case if the new prime minister preferred the UK to exit without an agreement to it seeking another Article 50 extension (or somehow his trying to get a parliamentary majority for the Withdrawal Agreement). The Withdrawal Agreement, as currently drafted, would become moot, and the choice facing the EU would be between reopening the Withdrawal Agreement and a no-deal Brexit. It would almost certainly choose the former. The fact that hitherto it has steadfastly asserted to the contrary is irrelevant.
Prime Minister May never used the threat of leaving without an agreement as leverage to force the EU’s hand in reopening the Withdrawal Agreement, so the key game theory question of whether such a threat would have been “credible” or not was moot. In game theory, whether a threat is credible or not has a very specific and crucial meaning. In this case, the EU would deem the UK’s threat to be credible if it believed that the UK would find it in its best interest to carry out the threat, should the EU not accede to the UK’s demands (or offer). The EU must believe that the UK definitely sees itself as better off with no deal than accepting the Withdrawal Agreement and therefore that the UK is prepared to act on that.
The new prime minister must convince the EU (that is, key EU political leaders) that the UK will leave on October 31 if the EU continues to refuse to reopen and satisfactorily renegotiate the Withdrawal Agreement. All the indications are that he will, partly because electoral incentives are strongly pointing in that direction (a Conservative prime minister who does not deliver some form of Brexit by October 31, or very soon thereafter, will almost certainly be signing the electoral death warrant of his party, at least for the foreseeable future).
3 The EU’s political timetable
Third, the European political timetable puts particular pressure on the EU to reach agreement with the UK. The five-year term of the Juncker Commission (comprising President Jean-Claude Juncker and 27 Commissioners, one each from the 27 non-UK EU members) is drawing to a close and a new Commission presidency is set to start on November 1. Over the coming months, the European Council has to nominate a new president of the European Commission, the European Parliament has to approve the appointment, and the new president has to assemble a new Commission, comprising 27 commissioners, for the European Parliament to approve (as a bloc) and the European Council to formally appoint.
The last thing the EU wants is for unfinished Brexit business from the Juncker Commission to be carried over, unresolved, into the new Commission and for it to distract from and potentially disrupt this critical and monumental once-in-five-year change in administration. Despite frequent protestations seemingly to the contrary, strong political incentives exist within the EU to reach an agreement on Brexit – and to reach it soon. It takes two to tango, but the pushing of the prime ministerial reset button in the UK provides an opportunity for that to happen.
All the ducks are lining up for the EU to change its tune on refusing to reopen the Withdrawal Agreement. Now it will just need a push, albeit a rather firm one, from the new UK prime minister.
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[Dr Paul Sheard is Former Vice-Chairman and Chief Economist of S&P Global, now Senior Fellow, Mossavar-Rahmani Center for Business and Government, Harvard Kennedy School]
Let us hope that the new prime minister will take the EU at its word and tell them that since there is no possibility of renegotiating the Withdrawal Agreement we will immediately cease such nugatory efforts (while reminding the EU that they know where we are and if they change their minds then we will receive them with a gracious welcome) and concentrate instead on making every possible preparation for a ‘Clean Break’ Brexit. They should brief every business and resident in the land on the implications of reverting to WTO rules and assure them that these are the conditions which will prevail after 31st October. If the government could fork out £9million for a pro EU leaflet before the referendum it should not cost them anything more to so brief the country on a Clean Break.
1 Laws, lawyers, treaties, agreements, promises, People are treacherous. Look at Mrs May. Has there ever been anyone as treacherous before? Laws etc collapse before mutual agreement or trust..
2. Do organisations as large and self sustaining as the EU actually collapse. It would require an equally large or larger force to whittle it down. As EU has with Britain by treachery from within.
I am pretty sure that the EU cannot easily collapse without serious upheavals from within. France, Germany, Italy, Or large Blocs…..
3. Nigels essential role must be to keep Boris on track.
4. UKIP must become an idea.
The text of the Article 50 Extension Agreement explicitly forbids reopening of the Withdrawal Agreement. If they were to do so then it could be legally argued that the Extension Agreement is void and that therefore we will have left the EU with immediate effect. (Bring it on!)
If the EU & UK agree they want to renegotiate the WA then I think they can only do it after Oct 31, ie agree another extension to A50.
“in accordance with its own constitutional requirements” is key here. Under UK constitutional law, the UK left the EU on 29th March 2019 as it was the law of the land and international and EU law that we left on 29th March 2019.
There are many in the judiciary such as Lord Aitken and Lawyers for Britain that Theresa May required an Act of Parliament in Primary legislation as determined by the Gina Miller case, to ask for an extension to the Article 50 process. Secondary legislation in an amendment to the Withdrawal Act section 20 is not enough to change international law date changes or EU law.
The Notification of Withdrawal Act 2017 is simply to give the PM, Royal Prerogative powers to give notice to the EU to terminate EU treaties under Article 50(2) and has no further provision to extend Article 50 in section 3 or revoke Article 50, and this Act of Parliament expired on 29th March 2019.
Therefore TM acted without the proper parliamentary approval signed off by the Queen (Ultra Vires). She acted outside the law and is treason. Even kings have lost their heads over such a thing as acting beyond the approval of parliament.
If Robin TIlbrook’s court case succeeds, the UK government cannot extend Article 50 if we have left already. What is needed is to support the Tilbrook case
https://www.crowdjustice.com/case/we-have-left-the-eu/
We keep hearing about this yet no date is forthcoming .When will it take place ?
No idea when. Date for hearing is overdue by about 4 weeks now, if made in comparison with Gina Miller case, but the court are known for being slow. Who was it said “Justice delayed is justice denied”? Time for the High Court to get its act together.
Could the court be eating for the installation of the new Prime Minister,,would be a new opportunity for our refreshed legitimate government to do the decent thing and drop their objection to a ruling that we did indeed leave the EU on 29th March 2019
I did hear from “Linda from Putney” who called into the JRM show on Friday’s LBC Radio. She mentioned the Tilbrook case was to be heard in about 11 days time. JRM cut her off soon after choosing not to make further comment on it..wonder why? I cannot verify where she got that information from. You do have a point though, perhaps it’s better if the case isn’t heard until after Boris (if he survives) is installed in No 10.
At the moment the government have outsourced this case to a very expensive lawyer and are hoping to run Tilbrook out of money and the case closes before it’s been heard.
On one level it may be refreshing to hear the commone sense view that negotiations can ALWAYS be re-opened … (after suitable passage of time and reflection)
But surely “we” have learnt that the W.A. is SO bad that merely tweaking is not acceptable?
Moreover a W.A. is simply not necessary (…..and Art.50 s.3 presumes “no deal” as one of two outcomes).
The UK and EU should go straight to a Trade Deal ……. which (based on current (near) perfect conformity ought to be as simple as cutting and pasting Canada … plus some bits.
If the EU insists on spinning out “negotiations”, then invite them to join in applying WTO/GATT Article 24 which allows “business-as-usual” (zero tariffs) for up to 10 years.
If the EU declines to use Art.24, then everyone know where thye stand.
WTO on 31st October.
Most of the planning has been done …. so no surprises and no “cliff-edge” (unless you are a small Europhile, EU-only business-owner with your head in the sand).
What if? ……. Parliament votes for the WA with amendments and a deadline of 31st October and says to the EU take it or leave it? This is in line with what Jacob Rees Mogg has been saying dismantling the WA once Britain has left the EU. The EU are not the only ones with authority to make the law. This new WA would then be the legal position as far as Britain is concerned.
Edward I would advise you to read Martin Howe QC critique of the WA 31/3/2019.
He points out you just don’t unilaterally abrogate treaties of any sort, purely on reasons of trust, never mind the penalties you can incur.
A quote of his I wrote down!
“Ideas of a future government just bursting out of a binding International Treaty are fantasies”
I.e. for the birds!!!!!!
Replying to Edward Leane, Roger Turner: We always need to bear in mind also this article by Torquil Erikson :https://independencedaily.co.uk/the-law-international-law-and-ms-mays-withdrawal-treaty/comment-page-1/#comment-103327
Torquil says here “It may just be that people like Mogg and Johnson are intending to agree to May’s dreadful WA Treaty, with the idea that, even it provides within itself no escape mechanism like article 50, later we will, if all else fails, be able to leave it unilaterally.
What they seem not to realise is that as soon as it is passed, the treacherous Mrs May intends to stipulate a separate Security Treaty with the EU”, Well May has gone thank God but I have no doubt that Bojo or whoever will seek to do the same. We should I think shout this from the rooftops.
Hi Mary,,thanks for the back up as ever!LoL, I agree the rejection of this Security Treaty is a must, I might also add the 1995 Barcelona declaration and subsequent agreements should get the boot along with Marrakesh, surely those agreements originated in our name only while we were under the aegis of the EU and therefore should automatically terminate on our leaving.
I think what I am saying is that I think on applying to leave parliament transferred all current EU diktat into British law and it will be up to us to delete t as necessary
Yours ever xxx Roger
UDI ?
The EU has specifically included clauses in the WA which prohibit any future UK Government from re-visiting the WA. It is not possible that a future Government can renegotiate the WA (once passed) without breaking the WA, which is NOT (in any sense), an ‘agreement’, it is in fact a Legally Binding Treaty !
Surely the WA is not legally binding because it has not been accepted by Parliament. Therefore it is still merely a proposal which awaits UK approval or rejection.
“Nothing is agreed until everything is agreed.”
After the last three long years I don’t trust either side to come up with any WA that is better for us than just leaving on WTO terms. Happy not to have a trade deal with them. They are bad actors.
“The EU must believe that the UK definitely sees itself as better off with no deal than accepting the Withdrawal Agreement and therefore that the UK is prepared to act on that.”
Both Johnson and Hunt have voted for the WA. so why would Barnier & co. not think that with very minor tinkering with it, it can be fudged through Parliament. Hunt is a remainer and I am not sure what Johnson is today, he is so flaky at times, maybe it will just come down to who wants to be the last Tory PM ever.
As with the 2016 leadership election, with various individuals not putting themselves forward and dropping out I don’t think the dirty tricks and manipulations are over yet.
I guess a lot will depend on the make up of the Cabinet chosen, and who is selected to negotiate with the EU, to give us a clue as to whether the new PM will live up to their rhetoric or not, then the GE?
The make up of the Cabinet is not the only swamp that needs draining of Remainers. The Cabinet Office full of Remainers like olly Robbins, Alastair Brockbank, Victoria Billing and Sir Mark Sedwell all need to be sacked and replaced with Brexiteers. A thorough root and branch forcing out of Remainers from all branches of government.
SB Well said. No mandarin must retain any senior office unless he/she is committed to the Brexit project. All new entrants to public service of any kind must be of the mindset that their career prospects are best served by demonstrating committment to the sanctity of the nation state . The ‘long march through the institutions’ must end now with its adherents demoted and re-educated.
Our government has been collaborating with the EU, not negotiating in good faith. We have a very strong hand and the EU needs us more than we need them, their financial and economic situation is dire and we still can’t do a deal, what a farce.
Actually I think the EU is over, it’s just a question of how messy, dire and unpleasant the situation gets before it finally collapses and whether we allow it to take us down as well.
Bloody politicians, they always have to do things the hard way and screw everything up completely before we finally kick them out, although unfortunately with a large pension payed for by ourselves.
Amen!
I think in essence flyer you are anticipating failure of the EU as being a form of bankruptcy.
In this event, would I be correct in saying the pension scheme would not be ring fenced for instance, the scheme’s source of income would cease and presumably present and future pensions would require to be reduced.
I also understand the EU has been trading for years without the accounts having been signed off, I’ve no idea of the reason, but I would take a bet the liquidators would investigate chapter and verse – perhaps going back to the date the previous accounts had been signed off, presumably if there had been mistrading they would require to know if the annual payments to the fund had been made illegally.
Just asking!
Roger – what amazes me is the amount of corruption there must be to keep a mathematically impossible economic model going for so long. I’d love it if we could get out of paying EU pensions, who knows.
I reckon there will be another massive round of money printing in the coming months, all over the western world. This lunacy will catch up with us in the end though, probably in 2020 although the cracks will keep appearing before then.
It will not be pretty! I’m off to live off grid in the mountains before then.