I can't help noticing that Article 50 ends in March but we don't have a deal yet. That's bad right?
It's very bad.
Why doesn't Theresa May just dump Chequers and try something else? Boris Johnson says we can be like Canada, which seems alright. They made a national dish out of chips.
Yeah but they watch ice hockey which, let's face it, is rubbish. Also, and less importantly, it would sever Northern Ireland from the rest of the UK.
London and Brussels agreed last December that goods must be able to move freely over the border in Ireland after Brexit. That means you need to eradicate two main types of checks: customs, which make sure goods have paid their tax, and regulations, which make sure they're legal.
So Northern Ireland needs the same rules as the EU.
Exactly. But if we then get a completely different customs and regulation system for the rest of the UK, like Johnson is proposing, all the checks would need to take place in the Irish sea, between Northern Ireland and the rest of the UK.
That's weird. That would make us a messed up country.
Yes, even more so. The DUP, which props up the May government, won't countenance it. That's where Chequers came in. It said that the whole of the UK would stay in the same regulatory system for goods and we'd set up a complicated customs partnership where we'd pay the different tax rates back to the EU. And then – voila – no checks.
That seems reasonable. Why didn't the EU like it?
Because the single market is indivisible.
That's a phrase I've heard a million times before and never, ever wanted to know what it meant.
That's a luxury of the past, I'm afraid. It means that the market contains all the same things for those inside it: free movement of capital, people, goods and services. The British plan essentially says that we'd accept the single market in goods but not in services. It's not a goer. And the EU made that very clear in Salzburg.
So what's May's plan?
We're not entirely sure, but it seems to look something like this. Firstly, she'd give up on the customs partnership stuff and say that the UK will stick to EU tariff levels until it finds a technological solution to the border problem.
Didn't the Brexit secretary say yesterday that this would be "temporary, limited and finite"?
Yeah but if they put a date on it, it's not a backstop and the EU won't take it. Expect the government to put a lot of emphasis on how the arrangement will end when these technological solutions replace it. But, to be clear, it's nonsense. The technological solutions don't exist. Plus the EU will demand that both sides sign off on saying they've been found and there's no reason they ever would. May will dress it up with fancy language but this looks very much like customs union membership.
— BBC Politics (@BBCPolitics) October 9, 2018
This gets messy. Basically, the Brits suspect that all this hand-on-heart Ode to Joy stuff about the four freedoms is a bit overdone and that what the EU really cares about is being undercut.
How would we do that?
Well, there are four main ways: State funding companies, reducing workers' rights, lowering environmental standards and tax breaks. You can use these to give yourself an advantage in production.
Imagine two countries have to produce phones to the same standard, but one can make workers labour for hours on end with no legal restrictions. It's going to find it easier and cheaper to make the phones. This is why the US is concerned about wages in Nafta negotiations. There are similar issues with things like intellectual property.
Consider this trick. You're a big global brand with shops on high streets around the world. You create an entity which owns all your trademarks and base it in the country with the lowest tax rate you can find. Then all your shops carrying your brand around the world have to pay it an extortionate amount to use the trademark. So much, in fact, that they operate at a loss. That way you don't make a profit in high tax countries. You only make it in one low tax country.
Yes indeed. May was just last week talking about reducing corporation tax and it's that kind of talk which makes the EU think we would turn ourselves into a tax haven after Brexit, especially if things go badly. They need reassurance we'll stick rigidly to their system, both for process and outcome.
What's in it for May?
There wouldn't need to be many checks on the border in the Irish Sea. Customs wouldn't be necessary and regulatory checks for manufactured goods could take place in warehouses. The only thing you can't really do anything about is agricultural products. Those have to be checked at the border.
.@DUPleader says it's "vital" the EU understands the "sensitivities" surrounding the Northern Ireland border.
Mrs Foster adds there cannot be "barriers" to trade as it would damage the "economic wellbeing" of Northern Ireland.
— Sky News (@SkyNews) October 9, 2018
Because once something like a genetically modified crop is inside the territory, it can spread. But it shouldn't be that big a deal. There's already border infrastructure for checking live animal exports between Britain and Northern Ireland at the Port of Larne. So, sure, it would be levelled up, but it's not like something radically new is being done.
Would we still be able to negotiate our own trade deals if we did this?
Haha no. Any bit of leverage Britain had to do that would be gone.
We're a services economy. Our aim with trade deals is to secure the penetration of our financial services into other people's economies in exchange for opening up our own economy to their goods. But this deal makes the last part pretty much impossible. Strapping our tariff rates to the EU means we can't unilaterally reduce taxes on stuff coming in. And by signing up to all their regulatory requirements, we wouldn't even be able to tempt countries by allowing in lower quality goods.
So we're stuffed.
Double-stuffed. At least before, we had a say in EU trade deals. Now we'd just have to take on whatever the EU signed.
Would the EU accept these terms?
It's possible. After all, it's perfect for them. We've facilitated their goods exports, on which they have a trade surplus, but not our services exports, on which we have a trade surplus. They must be laughing their heads off.
What the hell is going on, man?
It's hard to tell. Some extraordinary mixture of internal Tory dynamics, incompetence and ideological hysteria. But anyway, regardless of how topsy-turvy it is, that old problem remains: it still separates goods and services. Brussels won't ever split those. But they might just decide May has gotten close enough to their position to say OK, pat her on the back, and leave the rest of the fight until after Brexit Day. Then May would have to bring it back to the Commons for approval.
I'm not an expert, but her party won't accept Chequers and this goes further than that, so it's not looking good.
Right. At the moment, the DUP, hardline Tory Brexiters, Labour and all other opposition parties say they'll vote against it.
That sounds like game over to me.
Do it with the proper voice and everything.
Game over, man, game over.
Nice. Look, it could be, but some observers think that underestimates the strategies available to her. The closer we get to Brexit Day without a deal, the scarier things become. In January or February, the markets are bound to take fright. Things will start getting seriously sketchy. And in that kind of atmosphere, May might have more success getting moderate Tory and Labour MPs onside. Just today, there are reports that up to 30 Labour MPs could break rank and support a deal.
What about a second referendum? Isn't that also an option?
It's possible. MPs could attach an amendment to the parliamentary motion on the deal saying that it needs to go out to the voters for approval. At the moment, they don't have the numbers, but this is a deal which will please precisely no-one. It's possible that the debate will be so dreadful it forces the issue.
And what if none of that happens and MPs just reject it?
Then all hell breaks loose. There are six possible outcomes.
Option one: The end of May. She could resign. Or, if enough Tory MPs write to the backbench 1922 Committee, there'd be a leadership vote, which she'd probably lose. Either way, it'd end up in a Tory leadership contest.
DUP leader Arlene Foster is asked by Channel 4 News Europe Editor Matt Frei if she is prepared to see a Brexit deal "go up in smoke because of your red lines".
She says she doesn't want "Northern Ireland going off in a different direction from the rest of the UK". pic.twitter.com/tuJdh6aA6M
— Channel 4 News (@Channel4News) October 9, 2018
How long would that take?
Ages. First a bunch of Tory MPs stand for the leadership. Then they're whittled down to two by the parliamentary party and those two names are sent out to the membership. Last time this was pretty quick because everyone committed hara-kiri and May was the only one left standing. But there's no guarantee that would happen again. That means hustings, TV debates, venues to be booked, campaigns to be set up, and voting. It'd probably take about 12 weeks.
Which takes us pretty much up to Brexit Day.
Exactly. It doesn't seem doable. We'd likely have to ask the remaining 27 EU member states to extend Article 50. They'd probably do this, but there are problems. The European Parliament elections are scheduled to take place in late May. If we're not out by then, Britain will have to elect MEPs. It's not an insurmountable problem, it's just…
Yeah, it's weird. Option two: May tries to go back to Brussels and renegotiate. This wouldn't be a major overhaul, but she might be able to alter the wording on the future relationship. Maybe, with no-deal fast approaching, vaguer wording would convince MPs to vote it through and restart the hard/soft Brexit fight once they'd ensconced themselves safely in the transition phase.
But probably not.
It's a desperate strategy for desperate times. Option three: May goes for a general election. She could decide this is her only way to secure public support for her plan. She tried this before and it didn't work out too well, but it may still be tempting. She probably wouldn't have that much trouble securing it, despite the straightjacket of the Fixed Term Parliament Act, because Labour want this badly.
Why is there a social rule against drinking in the daytime? I think we should start drinking in the daytime.
Buy stocks in whisky flasks. There's a time problem here too. Snap elections aren't as snappy as they used to be. The Electoral Registration and Administration Act 2013 extended the time required for an election to 25 days, not including weekends or public holidays – and there'd be quite a few of those given this could fall around Christmas time. OK, option four is a second referendum.
I think you mean People's Vote.
Whatever. May hates this idea, but she could well be tempted by this stage. It means she can try to secure public support for the deal without risking Jeremy Corbyn getting into Downing Street. This has a time problem too though. UCL's Constitution Unit estimates that it would take at least 22 weeks to pass the legislation, get the Electoral Commission to carry out question testing, have officials prepare for administering the poll and set aside the 10-week campaigning period required by law. And that's assuming there's no disagreement in parliament about the question to be asked.
Which there will be.
Exactly. So again you'd need to extend Article 50 and deal with that European election problem. Option five is that there's a motion of no-confidence in the government. This is allowed under the Fixed Term Parliament Act. It doesn't have an immediate time problem. If it was passed, Labour would have two weeks to try to stitch together a coalition with other parties and there'd only be an election if they failed. But it's not likely that an opposition-led attempt to trigger no-confidence could win support from enough Tory MPs to be successful.
I am not sure if I am tired now or just losing the will to live.
Hang tight, the sixth option is the most fun. May – or the Tory leader who replaced her – could try to force through no-deal Brexit.
Surely the Commons could stop that?
It might actually be pretty difficult. As things stand, the only requirement is that the prime minister must come to the Commons before January 21st 2019 and state that there is no deal. There can then be a debate, but the motion is supposed to be neutral and therefore unamendable. So MPs wouldn't be able to use this to secure a new referendum or demand the government go back to the negotiating table.
Is that watertight?
Not quite. The government explicitly said it would be up to the Speaker to decide that the motion was neutral. Some constitutional experts believe he can base his decision not just on the wording of the motion but also its intention. So he could potentially say it is amendable, although this is very controversial.
Imagine what a hellscape of political recrimination that would be.
Yeah, they're really putting him in an impossible position. But he has a track record of trying to allow the House a say on things where he feels it is being denied a voice. He took the unprecedented step of allowing a third amendment on the absence of an EU referendum bill during the Queen's Speech in 2013, outraging the government of the day in the process. Ironically, it was celebrated by Brexiters, who would, of course, condemn him as a Remainer conspirator if he were to take a similar step in these circumstances.
Any other mechanisms?
Well, MPs can amend any piece of legislation to do with Brexit and there'll definitely be loads of laws being passed very quickly in the case of no-deal. But the government has given itself so many powers that it could try and avoid primary legislation altogether.
How do you mean?
Remember the European Union Withdrawal Act last year, which was supposed to copy over EU law to the UK?
How could I forget the halcyon days of…
Yeah, yeah. Well, it had some sneaky little beasties in it called statutory instruments. These allowed ministers to pass laws without bills. It basically turned them into little mini parliaments, with emergency powers to put a law on the statute book just like that.
Are there really no safeguards against that?
All they need to do is say that it is urgent, which given the circumstances it will be, and that it is within the scope of the Act, which it will also be. MPs and Lords have 28 days to launch a challenge, but there's very little they can really do about it.
There must be something MPs could do to stop no-deal.
Corbyn could use an opposition day motion, but it's the government which grants the time for that. There are also backbench motions, but again the government controls allocations. This would be considered very bad behaviour indeed, but if the prime minister was set on no-deal they could probably do it.
Look, this is unlikely. It's hard to imagine a government behaving this way. But then, nothing in this scenario is likely. Every option seems improbable right now. Something somewhere is going to have to give.
Thanks for this. Now please never contact me again.
This piece is based on conversations with Holger Hestermeyer, mid-career fellow at the British Academy and shell reader in International Dispute Resolution at King's College London, John Springford, deputy director of the Centre for European Reform, Brigid Fowler and Ruth Fox, senior researcher and director at the Hansard Society, and others in London and Brussels who asked not to be named.
Ian Dunt is editor of Politics.co.uk and the author of Brexit: What The Hell Happens Now?
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.