No BREXIT if no deal?

What follows is blue-sky thinking.

How do you honour the referendum result whilst avoiding no deal without agreeing to remain in the customs union and single market (i.e. a soft Brexit)?

The answer is simple.

You stop and wind back the clock.

The analogy is to pressing the re-set button on an athlete’s stop watch.

Parliament therefore needs to vote on a motion that results in the revocation of Article 50.

Why does that work?

Answer:

1. it restores the status quo ante to the time before Article 50 was triggered in the aftermath of the referendum result; and
2. Brexit is not prevented because the clock can be switched back on at the touch of a button, e.g. following a second referendum in 10 years’ time.

Consequently:

1. there is no need for a second referendum now;
2. there is no need for a general election;
3. there is no need for a deal;
4. there is no need for a backstop;
5. there is no need for a bespoke Norway/Canada plus style arrangement;
6. the UK retains access to the EU market and through its membership to the FTA’s negotiated by the EU with other states (as can those Commonwealth countries who rely upon access through the UK’s membership);
7. the UK would not need to regularise its WTO scheduled commitments, and can benefit from the EU’s recently updated and revised schedules;
8. the UK and the EU would not need to negotiate a distribution of the EU’s TRQ’s, which could be problematic to third countries who find that the redistribution of the EU’s TRQ’s is unfair because it reduces their access to the EU market as a result of the UK’s exit;
9. the UK can pool its: (a) evolving international trade & WTO dispute resolution expert resources and; (b) diplomatic soft-power, with the EU to collaborate in negotiating FTA’s with other states e.g. China; and
10. Scottish independence is avoided.

Why is this a rational political choice?

The answer lies in the premise that when the referendum was held the public were not told that the earliest an FTA is likely to be concluded with a non-EU country is after 2030.

In other words, because the deal = no FTA’s for at least another 10 years, Brexit is already dead for an entire generation.

That is because when you cumulate the transition period (which may have to be extended) with the time necessary to negotiate, approve and ratify an FTA (see the Brexit page at www.diplomaticlawguide.com) that = 10 years.

The practical reality is that Brexit cannot be delivered until after 2030 under the terms of the deal, because ‘with the exception of any state whose executive decisions are made by a dictator, in the real world no state will constrain its options by doing a deal with the UK until it has received comprehensive legal advice about the extent to which the UK remains integrated and aligned with the EU. In other words, countries with whom the EU does not have a FTA like the US, New Zealand and China will simply not want to negotiate an FTA with the UK until they know what Britain’s relationship with the EU actually is. Which bits of the single market, if any, is the UK in? Which parts of EU competition law apply to the UK? Once Britain has left the EU’s customs union, what rules of origin will Brussels apply, so that other countries cannot use the UK as a way of circumventing the EU restrictions on their exports? Does regulatory harmonisation between the EU and the UK make convergence between the UK and their country impractical or a legal impossibility?’ see, Brexit page of Diplomatic Law Guide www.diplomaticlawguide.com under ‘Brexit Agreements’: http://newsite.diplomaticlawguide.com/brexit-2#agreements

If the back-stop kicks in then it will be as long as it takes to find a solution to the Irish border, and the technology and surrounding legal infrastructure for its implementation does not exist and is likely to take more than 5 years to develop, test, and agree.

Since voting demographics will change whilst the clock is switched off and an entire generation of British youth will be left to wander in the economic wilderness until they arrive at the foothills of the promised land in say 10 years’ time if the deal (on the terms agreed ) is approved and ratified, then it is common sense to have a second referendum in 2030, and meanwhile to remain a member of the EU.

During the next 10 years the UK can then re-negotiate its long-term relationship with the EU. If e.g. immigration is resolved and there is no need to leave there is no point in Brexit. If not, then the public can vote again in 10 years’ time.

The government’s lawyers appear to have conceded that Parliament has the power to direct the government to withdraw Article 50, which can be confirmed in a question before the vote.

A state may seek to adjust the way in which treaty will apply to it by means of interpretative declarations or reservations.

‘… Article 21 of the Vienna Convention indicates that a reservation “modifies … the provisions of the treaty” … Since the effect to be brought about by a reservation is expressed in words, and results in a different set of words apt to describe the rights and obligations of those affected by the reservation, thinking of the result in textual terms may not be such a bad approach … [a reservation is] akin to a modifier of what the treaty is, in contrast to the interpretive declaration which affects how the treaty is to be understood. Put in a nutshell, a reservation affects what is to be interpreted; an interpretive declaration seeks to affect how something is to be interpreted, that is what meaning is to be attributed to it.’ Treaty Interpretation, 2nd Ed (2015) by Richard Gardiner (OUP), para 3.3.1.

Can an amendment be proposed which results in a reservation about the backstop that has the effect of deeming Article 50 to be revoked, i.e. by directing the government to notify the EU in e.g. the event that the backstop provisions are not withdrawn from the treaty by the EU within a specified time-period? In which case, the notification would have to be made prior to 29 March, unless Article 50 is extended. Therefore, the EU must confirm its refusal to withdraw the backstop provisions from the treaty within the time available, which could extend beyond 29 March if Article 50 is extended. If not, then the deadline must be before 29 March.

Some food for thought!