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November 16, 2018

Why no-deal is far more likely than no-Brexit

We have noted before that much of Brexit journalism is based on a failure to acquaint oneself with Art 50. This is the deep reason we have a debate on no-Brexit and a second referendum. A no-Brexit is naturally possible in theory. But it would, at a minimum, require not only a positive majority in the British parliament but also active support by the cabinet, because it would involve a change in legislation that only the government can introduce. 

As the pro-Remain legal journalist David Allen Green keeps pointing out, the mere fact that parliament is opposed to a no-deal Brexit is completely irrelevant. Brexit is the default option. He writes that the European Communities Act of 1972 is repealed on 29 March by automatic operation of law. 

Green notes that, once it becomes clear that the real-world choice is between deal or no-deal, the deal might look suddenly quite attractive. For one, the UK is not prepared for a no-deal Brexit. Nor is the rest of the EU for that matter. And there are bits in the withdrawal agreement that are actually quite attractive. As the legal scholar Sylvia de Mars (@SylviaDeMars) pointed out, the withdrawal agreement reduces the intrusive powers of ECJ to the barest minimum. She observes that this constitutes an extraordinary concession by the EU. Expect to hear more surprises as people start digesting the 585 pages in detail. We, too, have only managed to read and digest parts of it. 

The ministers who resigned yesterday surely cannot have read the full withdrawal agreement, but at most small passages of it. The current debate is full of sound and fury. If Theresa May survives a possibly imminent coup, the chances of this deal being approved will be rising. The EU is not going to renegotiate, nor would Theresa May request it. We hear there are already some noises from member states unhappy with the concessions Michel Barnier and his team have made. We would not totally exclude the possibility of some minor adjustments that leave the broad balance of the treaty unchanged. But this is not a bad deal at all. And since the UK is not prepared for a no-deal Brexit, what is there to choose?

Of course, politics might intrude. But, if they do, no-deal is far more likely than no-Brexit. For one, it is not that easy to construct a parliamentary majority unless you assume that the DUP falters, the ERG falters, or the Labour Party no longer pursues the sole objective of forcing another election. And if the coup against May succeeds and a Brexiteer becomes Tory leader, then surely the probability of a no-deal rises as well. Why replace the leader to keep her deal? 

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