There is no solution in view to the legal conundrum that is Brexit, whatever the Prime Minister's increasingly desperate claims about the so-called Chequers Proposal.
Why do I emphasise legal questions when most media comment is a cauldron of speculation about aspects of UK politics?
That's simple.
Brexit is, fundamentally, a legal problem.
It is of course a legal problem with daunting political tortuosities but if there is no credible legal solution then the politicians have nothing credible to discuss.
Nobody, so far as I'm aware, has produced a plan for Brexit which is legally coherent and which produces an orderly Brexit.
Is a legally coherent, orderly Brexit possible? I suspect not.
In this post I want to pose what ought to be a simple challenge, which I'm calling the Brexit Challenge.
The Brexit Challenge is open to anyone, including the Prime Minister.
The Brexit Challenge is to produce a written plan which gets the UK from its current situation to its having left the European Union which is
- Legally coherent i.e. credible in EU Law and UK Law
- Produces an orderly result
- Takes account of the risks and uncertainties of all intermediate steps
Any credible plan needs to take account of fundamental legal questions that are currently being ignored by both the UK and the EU27.
One important unsolved problem is the Irish Border "backstop".
The "backstop" begins, as currently envisaged, on 1st January 2021 some 21 months after the UK is anticipated to have left the EU.
How can that legitimately belong in the Withdrawal Agreement?
In the terminology of Article 50 TEU it belongs, if anywhere, in the Framework for the Future Relationship.
I am not saying the Irish Border is unimportant. I am simply saying that the so-called Irish Border "backstop" does not lawfully belong in the Withdrawal Agreement.
Another unaddressed, and largely unrecognised, question is the Transition Trap.
If the current Withdrawal Agreement is implemented in March 2019 the UK has 21 months (from 30th March 2019 to 31st December 2020) to achieve an Association Agreement with the European Union.
In my view it is impossible to negotiate, agree and ratify such an Association Agreement by 31st December 2020.
The UK will, if the Withdrawal Agreement enters into force on 29th/30th March 2019, have left the EU so Article 50 of the Treaty on European Union cannot be used in late 2020 to extend the so-called "transition period".
So as 31st December 2020 approaches the UK will face a new cliff edge with, in my assessment, absolutely no control of its future.
The UK would have no stable relationship with the European Union and, consequently, there would be no foundation on which any of the supposed new trade agreements could proceed to completion.
The UK would be in the Transition Trap.
Any credible plan also needs to take account of a multiplicity of issues other than the possible future trading relationship between the EU27 and the UK.
Other important issues which raise important legal questions include:
- Customs
- Regulatory checks at the border
- Aviation
- Surface transport between the UK and the EU27
- Data transfers
So, there you have it ... the Brexit Challenge.
If you are aware of any solution to the Brexit Challenge please bring it to my attention at killbrexitnow@gmail.com or post it on Twitter addressed to me, @killbrexitnow.
If you have a solution to the Brexit Challenge I feel sure that the Prime Minister would also love to hear from you!
If there is no solution which produces a legally coherent, orderly Brexit is there any sense in the United Kingdom proceeding with Brexit?
