The myth of “ruling out a No Deal Brexit”

4th July 2019

The ship of fools, depicted in a 1549 German woodcut

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There is a misleading and unhelpful phrase now in common use among politicians and pundits discussing Brexit.

The phrase is “ruling out a No Deal Brexit”.

Often you will read or hear that the House of Commons has ruled out a No Deal Brexit, or will rule out a No Deal Brexit, or should or should not rule out a No Deal Brexit.

The phrase is being used so casually that you would get the impression that the phrase was meaningful.

The phrase, however, shows a misunderstanding of the predicament that the United Kingdom is in.

A No Deal Brexit cannot be ruled out, at least not in isolation.

The House of Commons could vote against a No Deal Brexit, resolution after amendment and so on, until their faces are fully blue – and by those votes would have no effect.

A No Deal Brexit can be avoided, but only as a by-product of another positive act – acts which dare not speak their names.

The starting point, as most of you will know, is that the United Kingdom is set to leave the European Union without a withdrawal agreement by automatic operation of law on 31st October 2019.

That is the default position; nothing more needs to be done; the ball rolls off the table.

That default can be defeated only in three ways.

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One: that the current (or an amended) withdrawal agreement is approved by the UK Parliament and the European Parliament before 31st October 2019.

The problem with this is that the deal has already been rejected by historic majorities by the House of Commons, and there is no time and little inclination by the European Union to revise the current deal on offer.

A deal in place on 31st October 2019 is possible in theory, but there is little basis in reality (at the moment) to see it happening.

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Two: that there is a further extension to the Article 50 period.

This is the most likely in practice but – and this should never be discounted – it is not a matter of the United Kingdom Parliament.

An extension can only be given at the request of the departing member state and then with the unanimous consent of the remaining EU27.

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Three: revocation.

Strictly, this is the only one of the three ways that is in the gift of the United Kingdom.

A departing Member State can revoke the Article 50 revocation at any time before exit – according to the European Union Court of Justice.

This would certainly rule out a No Deal Brexit.

Indeed, it would rule out any Brexit – at least in the short to medium term.

A revocation has to bring the departure process to an end – not just stop the clock (although how this stipulation would be enforced in practice is another question).

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Unless one of these three means are adopted, it is impossible to “rule out” a No Deal Brexit, and only one of them is entirely within the control of the United Kingdom (though if the current deal was accepted, there is little doubt the European Parliament would also approve it).

So when you hear a politician or pundit assert that a No Deal Brexit must be “ruled out”, there is one simple question.

How?

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30 thoughts on “The myth of “ruling out a No Deal Brexit””

  1. Surely a No Deal Brexit would have been much more of a threat to the EU (which is the stated purpose) if it came as a sudden surprise rather than as something that has been waved around for many years?

    1. Ireland began preparing for Brexit the day the referendum was called. European ports have hired thousands of new staff. The UK is already being cut out of EU supply chains.

      That the UK economy hasn’t taken a noticeably large hit yet is because of stockpiling and brining forward already planned capital expenditure.

      Don’t kid yourself. The damage will be highly asymmetrical and the EU can and will, if necessary, wait for rationality to prevail in the UK or in the states that emerge from the wreckage. There will be no rescue by German car makers or any other unicorns.

  2. There is a name for those who think Parliament can simply vote out No Deal. I call them Canutists — not the witty and sophisticated version of Canute who sought to show the limits of sovereignty but the simple-minded one who thought his word alone could stop the incoming tide.

    1. You will find that myth in turn in contested – and that it was a wise Canute who wanted to show up his fawning courtiers.

      1. Re your comment “You will find that myth in turn in contested – and that it was a wise Canute who wanted to show up his fawning courtiers.”

        That’s rather what I meant by “not the witty and sophisticated version of Canute who sought to show the limits of sovereignty”

  3. How about European Withdrawal Bill (No.6) as another option, requiring the PM to seek a further extension? It worked in April!

  4. If this explanation is not depressing enough by itself, it makes no mention of the new politics created by the imminent arrival of new leaderships in both the UK and the EU. Neither will want to back down: UK No Deal if needs be vs. EU Withdrawal Agreement unchanged. Who will blink first? Or will it be both at the same time in a fudged compromise? Whichever it is, the two sides will still need to talk about the new trading relationship. Who among British politicians is going to provide the leadership needed to explain the realities of power in the 21st century rather than the 19th and 20th centuries?

  5. Thank you for making this so abundantly clear! I’ve been aware for some time that this is the situation, though nobody would believe me, least of all those hell-bent on Brexit, regardless of personal or national cost. I hope others will circulate and take the time to read this blog, and thank you for your time and effort in preparing and circulating it.

  6. Threatening no-deal, a petty gesture, seems to have some political traction in the UK but it is of no real concern to the EU. If they were worried they would have issued more accommodating words by now. They have accepted we will leave and they may believe their costs are limited and affordable, perhaps they may even see a quick upside. We voted for this situation, it is for the UK alone to resolve, even by making no further decisions.

    1. Absolutely correct. In the EU we have more than enough problems to be the least interested in solving the brexit problem for the uk. Any attempt by the uk – such as withdrawing art 50 – would add yet another empasse, such as finding that the EU parliament is filled with an additional dose of extremists/nationalists/fascists. Salvini, plus its german, french and visegrad friends are plenty enough, thank you.

      1. In the event of a vote of no confidence, precipitating a general election, has the EU not already indicated that they would be prepared to grant an extension to A50?
        Also for a second referendum, if a govt of unity were formed in the 14 days after a NC vote, and sought to hold one?

  7. You say that “An extension can only be given at the request of the departing member state …”
    I’m not sure the wording of Article 50 is as specific as this: “…unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period…” is not quite the same thing and seems to imply that the extension could be granted at the (unanimous) behest of the Council, provided the member state agrees too.
    In fact, if this is the case and the Council were to request the UK to accept an extension, it would be a way to absolve themselves of the blame of bringing about no deal, because otherwise, sure as eggs is eggs, a few weeks into a no deal scenario, the brexiters would look to blame the EU for initiating it.

    1. Somebody has to propose the extension.

      In accordance with the principle of autonomy and national self-determination (as set out in the CJEU case of Wightman), that request has to come from the member state. The Council would not gainsay the member state.

      1. Thanks for your reply. I can see in para 124 of the opinion on the Wightman case, it is stated that the “European Council may not *impose* the extension on the Member State”. Surely it would not be an imposition for the Council to *offer* a further extension to the UK, leaving the choice (in accordance with the principle of autonomy and national self-determination) with the UK whether or not to accept?

      2. Is not the best chance for an extension to call a General Election (or a referendum but this seems unlikely)? The EU has repeatedly indicated that such a “major event” would justify an extension.
        And it would produce an alibi for an extension request.

  8. Tell it to the politicians, you are of course searingly correct, not that they are in a listening mood, it seems to me that the Brexiters are the only ones with a finger on the pulse of what is real – that without some positive action, we leave without a deal.

  9. “How” is by changing the default. Parliament passes an Act requiring that the government, no later than 18:00 on the day of the UK’s departure from the EU, withdraws the Article 50 notification unless a Withdrawal Agreement has been approved by both the UK and EU. That is the only way to rule out no deal.

    1. I can predict what would happen in that case:

      – The Withdrawal Agreement is not amended by the EU and not approved by Parliament.

      – 6pm on October 31st arrives.

      – HMG declines to revoke Article 50, in breach of what I’ll call the No Deal? No Chance Act (2019).

      – Six hours isn’t enough time to take the necessary legal action to compel HMG to comply with the Act.

      – At midnight on October 31st, Her Majesty’s (allegedly, for now) United Kingdom of Great Britain and Northern Ireland leaves the EU by automatic operation of both UK and EU law.

      – The ERG, Boris, Farage and the rest are pictured with big, smug grins on their faces, having presented Parliament with a fait accompli – even if what they did was illegal under UK law, it’s too late to do anything about it.

  10. Once no deal has happened, it seems to me that the interest of the EU countries will be to “bag” as much competitive advantages as possible before a future trade agreement is negotiated to compensate for the initial damage caused by no-deal: UK companies trading with the EU will be strongly encouraged to move, new barriers will automatically appear for services e.g. a British lawyer or architect wanting to practice in the EU, supply chains will continue to be reorganised to by-pass the UK. The contingency measures put in place by the EU appear limited in scope -for instance they only ensure ensure basic air transport connectivity and basic road freight and road passenger connectivity – and while detailed (one regulation covers the issue of pet passeports!) they are temporary – including regarding the all important data transfers – and destined to be phased out as soon as it is in the interest of the EU to do so or the UK has signed protocole or agreements in place for other Third Countries. Many measures are also conditional on UK reciprocity.

    But whereas the situation vis-à-vis the EU is much discussed, I wonder what will be the domestic situation in the UK from a legal point of view? I understand that a number of bills must be passed before exit but that the time available will prevent this even with a compliant Parliament. So which areas of economic activity will be affected by this legal vacuum and how will it work in practice? Can it be remedied simply e.g. by making the statutes applicable retrospectively from the date of exit? Will intra-UK trade be affected? For instance what will happen with VAT and how should bills be issued? Will foreign lawyers authorised to work here suddenly lose their rights? It woukd be great to have more clarity on these issues!

    For those interested on the EU contingency measures, i post links to the EU website

    https://www.consilium.europa.eu/en/press/press-releases/2019/03/19/brexit-council-adopts-a-series-of-contingency-measures-for-a-no-deal-scenario/

    https://ec.europa.eu/commission/news/no-deal-brexit-preparedness-2019-apr-10_en

    1. You ask, in the event of a no-deal Brexit:

      Will foreign lawyers authorised to work here suddenly lose their rights?

      More urgent is whether EU medics and nurses will still be recognised to practice in the UK.

      1. That presumably is a pragmatic decision for the UK government to make – rather like the Minford approach to zero import tariffs. We can allow EU lawyers, medics and nurses to work here, just as we can decide to impose zero tariffs on imports (as long as we do this for all countries, not just the EU). These things will reduce the pain for UK consumers, even if in the case of tariffs it means ruining large parts of our farming and manufacturing sectors. But the more we give away unilaterally the less leverage we will have to demand reciprocity in any future negotiations on citizens’ residence rights and FTAs.

        1. Well of course, laws and regulations will ultimately be adopted. The post asked what will happen in the intermediate period between a no deal Brexit and necessary legislation being passed. There are at least 4 bills in a queue which would need to be passed on various issues to avoid legal vacuum. If, as is likely to be the case, the statutes required to be passed prior to a no deal exit are not passed in time, these professionals, British companies and others will operate in a legal vacuum until this is remedied.
          And by the way, Minford’s suggestion on zero tariffs can only be described as “pragmatic” in the very bizarre world that we inhabit where Theresa May’s WA has become a “soft” Brexit and the Norway approach recommended by some Brexiters in 2016, a “no Brexit at all”. The UK consumers who work in farming and manufacturing may not feel this approach will “reduce their pain”.
          And your concept of “leverage” belongs to the sado-masochist school of thoughts: the more I hurt myself, the better I will be. If you clicked on the links in my post, you would see that citizen rights etc. are covered by the EU contingency measures and adopt a generous approach to British citizens in the EU. This is not the same as the right to exercise a profession though.

  11. Excellent as ever. Just one question – what is the legal basis for “An extension can only be given at the request of the departing member state”. Whilst politically it’s likely to be the UK that asks for the extension but Article 50 is quiet on the question of who proposes there should be an extension. It’s the withdrawal agreement that requires the UK to make the request for an extension, in its case, to the transition period.

  12. So if Parliament won’t accept the deal, what can they do to make the Prime Minister revoke or extend A50? I assume nothing, other than to find a Prime Minister who will? Which is hard to see happening before the end of October.

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