Andrew Duff -  On Governing Europe

Running Commentary II

1. The British government has decided to offer weekly Brexit briefings to the foreign media. But British journalists will be excluded, leaving many of them in their habitual state of incomprehension or prejudice about the European Union. Ministers still insist they will give ‘no running commentary’ on Brexit. Until they do so, at least, I will.

2. The big news this week is the parliamentary by-election in Richmond, a constituency within easy reach of Heathrow. There the Liberal Democrats, with the help of the Greens, took the scalp of a right-wing nationalist Zac Goldsmith. Amid general rejoicing, however, the Lib Dems are in danger of turning their electoral success into a Pyrrhic victory. Their new MP, Sarah Olney, says she will vote against the triggering of Article 50. How so? To understand this one has to know a little more about her party (which is my party).

The Liberal Democrats are consistently mild pro-Europeans. The consistent mildness of their pro-Europeanism has led them in recent years to join the fashion for shuffling off responsibility for taking difficult decisions on EU issues to referendums. In 2011 the Lib Dems, then in coalition with David Cameron’s Tories, legislated to install in Britain’s rickety constitution a mandatory referendum every time the EU would try to take a constitutional step forward. This amounted to a cast-iron British veto against future EU treaty change. In 2015 Lib Dem MPs and peers promoted the holding of the In/Out referendum without demur or qualification.

Under the new leader Tim Farron, the Lib Dems now propose to obstruct the result of last June’s referendum by impeding the start of withdrawal negotiations. If successful, this manoeuvre would put the UK in breach of EU law and provoke a huge political and constitutional crisis for the rest of the EU. It would also enrage a very large number of British voters (not all of them Brexiteers).

The motives of the Lib Dems, joined by the Greens, SNP and some Labour MPs, are doubtless honourable; but they are misconceived in greatly exaggerating the room for manoeuvre available to the government once Article 50 is triggered. Because Article 50 is about relieving the UK of its rights and obligations as an EU member state, the shots will called in Brussels, not London.

Worse still, the Lib Dems say they would hold a second referendum on the outcome of the Article 50 negotiations. Even disregarding, for the moment, the impact of a second referendum on the stability of the country, this is a bizarre tactic.

If there is a withdrawal agreement in 2019 it will be the best, not to say the only, possible deal between the UK and the EU 27. It will be a treaty which is more technical than political; it will include a bill for the costs of leaving; it will be complex to the point of abstruse. It will infuriate the British nationalists, who are now given an authentic working-class voice in UKIP’s new leader, Paul Nuttall MEP. A referendum on the Article 50 withdrawal agreement would be the perfect territory for negative campaigning on the lines, so expertly deployed in Irish referendums, of ‘If you don’t know, vote No!’.

If, on the other hand, there is not a withdrawal agreement, or if there is an agreement which is rejected by the British parliament and/or people, the EU treaties will simply cease to apply to the UK on the stroke of one midnight in March 2019. In that case, there will be anarchy. The rule of EU law will stop and there will be nothing to take its place. Anarchists will have a field day; the rest, especially liberals, will suffer. So as they savour their success in the Richmond election, the Liberal Democrat leadership should take a moment to re-assess its Brexit tactics.

3. Elsewhere, there have been two signs that Prime Minister May has not taken leave of her senses. Her government has agreed to stay in Europol, at least for the moment pending the Brexit outcome. It has also decided to continue with the agreement, hard-won under EU enhanced cooperation provisions, to establish the new system of European patents. What is particularly significant for Brexit is the decision to opt in to the hybrid Unified Patent Court, which involves at arms’ length the European Court of Justice. (The Court’s pharmaceuticals and life sciences division will be based in the City of London.)

4. David Davis, the Brexit minister, has told the CBI that there will be no labour shortages after Brexit. This is good, if unsubstantiated news. He also admitted to the Commons (1 December), for the first time, that the UK might have to pay to have continued access to the single market in goods and services. Chancellor of the Exchequer Philip Hammond added, lucidly, that Davis “is absolutely right not to rule out the possibility that we might want to contribute in some way to some form of mechanism”.

5. For the rest, there remains general confusion about the nature of Britain’s future relationship with Europe. Unless there is early clarification about the landing zone, the Article 50 negotiations will be short-lived.

The risk of failure is exacerbated by those Remainers, including those of Labour and Lib Dems, who still talk airily of membership of the single market. Because it lacks nothing by repetition, let’s be clear that, post-Brexit, the only way for the UK to remain a member of the single market is to join EFTA and the European Economic Area. Norway, Iceland and Liechtenstein are the only current members of the EEA – variably rich, quirky or miniature. EEA members are not in the EU’s customs union, but they enjoy many other features of full EU membership, including payments into the EU budget. (Norway, for example, pays the EU about £5bn per year, compared with the UK’s £7.5bn.) They have no say in making EU law or policy, but are nevertheless effectively ruled from Brussels.

For Britain, the EEA option would deliver the worst of all worlds. Surely it is time for the Remain camp to concede that the prime minister is right to rule out EEA membership. We must make another package deal – almost certainly along the lines of a new EU-UK association agreement (of which more news next time).

Meanwhile, on we lurch into a week in which the UK Supreme Court and the Italian referendum both have the capacity to further destabilise the European Union.

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