(Posted: Tuesday 12th June, 2018)
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Anyone paying the slightest attention to the Brexit process knows that it has become heavily bogged down in fudge, and is on the verge of being perverted into a "Brexit In Name Only" that would keep us shackled to the EU — accepting continuation of the Common External Tariff, ongoing ECJ jurisdiction, Common Fisheries Policy, and all the rest, in the hope of avoiding a border for goods with the EU (and the infamous spectre of the "hard border in Ireland").
Not only is the EU's negotiating team being totally intransigent, but Parliament is also causing trouble, with the Lords passing several wrecking amendments on the Withdrawal Bill which the Government is currently struggling to overturn in the Commons (for which it has given yet another compromise to Remainer MPs).
Meanwhile, HMRC is loudly declaring that it is functionally incapable of being ready by next March to apply the same border checks to EU traffic and trade as it already does to the rest of the world; indeed it says it probably wouldn't be ready by the end of "transition" in December 2020.
Yet all of this frantic effort and compromise is unnecessary; a few simple, unilateral steps by the Government could give effect to the mandate of 17.4 million. All the deals and backstops and £40bn bills are only needed for a compromise that is now impossible — a smooth and amicable divorce that the EU, screeching harridan that it is, will never allow to happen.
First, the Government could walk away from Barnier's negotiating table. At this point the EU is not even suggesting it could ever offer us anything worth £40bn; if it were willing to allow free and frictionless trade without enforcing 'harmonisation' (read: EU control) on the UK's market, then all the talk of Irish borders would be irrelevant. Faced with the possibility of WTO rules and no Brexit Bill come March 2019, the EU would quickly discover that they need a deal.
We, on the other hand, do not need a deal. Because the next thing the Government could do is tell HMRC that, if they aren't ready to impose border checks on Exit Day, then they'll just have to do without border checks. If that means that the Treasury loses some tariff revenue, that's the Treasury's own silly fault for not funding exit preparations, and the Government has no right to use that as a basis to deny Britain her sovereignty.
Some have argued that to leave EU trade unpatrolled while continuing to control trade with the rest of the world would be in violation of WTO rules. If so, then, again, HMRC must be instructed to apply only those tariffs and restrictions on RoW trade that it is also capable of applying to EU trade. As HMRC is a branch of the executive, and such an instruction would merely be requiring it to comply with existing international agreements, it could be so instructed without any need for domestic legislation.
There are two possible outcomes to this plan. One is that HMRC, faced with the loss of all tariff revenue, would quickly discover that it can, after all, get its systems in place. It is the other, though, that is most enticing: after a few months or even years of effective unilateral free trade, as everyone observes its hugely beneficial effect on the UK economy, there might form a political consensus against reinstating those tariffs even on such timescales as HMRC would be capable of.
There only remains the question of the Withdrawal Bill, currently being smothered under amendments. But again, the Government has a simple option: just let the Bill lapse. It is not needed to give effect to Britain's departure from the EU; that will happen anyway at the end of March under Article 50. Its only purpose was to "give certainty" to business by transposing the existing corpus of EU legislation directly onto the UK's statute books; but at this point certainty is long out the window, and the so-called "Henry VIII" powers needed to make that transposition workable are facing heavy opposition in the Lords (and some in the Commons, too). Instead, if the Government thinks that a specific EU statute should appear in British law (which is likely to be rare anyway as most EU directives were implemented by secondary legislation), then that statute should be proposed as a fresh Bill to parliament.
The transposition was only rendered necessary by the Withdrawal Bill's entire repeal of the European Communities Act 1972. If, instead, a fresh Bill were introduced which merely repealed those parts of the Act which give direct effect to EU rights, statutes and obligations, but left Section 2(2) and possibly also Section 4 intact, then the result would be that UK law after its passage recognised that the UK was no longer part of the EU, but was otherwise unchanged. That is, UK law (including secondary legislation made under Section 2(2) to give effect to EU directives) would continue to apply, whereas EU law would not.
Since the purpose of such a Bill would be merely to recognise in UK law that the UK was no longer a party to the EU Treaties, and since Parliament already voted (in the European Union (Notification of Withdrawal) Act 2017) to take the action that would make the UK no longer a party to those Treaties, there would be no reasonable grounds for opposition to such a Bill. Moreover, such a Bill need not be introduced until after Exit Day, at which point it would be too late for any wrecking amendments to force us back to the EU table or otherwise reverse our departure.
In summary, then, since the EU, Remainer MPs and Lords, and the Civil Service are together rendering impossible any sensible compromise, the only two options are full Leave or full Remain, and only the former keeps faith with the electorate and respects the referendum result. If they won't play, we won't pay; walk away, Mrs May.
…
"This is your decision. The Government will implement what you decide."
Anyone remember that?
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