Best of three

With Boris Johnson finally in No. 10 we now have a prime minister who says he is committed to Britain leaving the EU on 31 October, deal or no deal. According to popular wisdom, the only way of avoiding the latter is for the government to negotiate a modified version of Theresa May’s deal, perhaps with the removal of the hated Irish backstop, or at least with a more easily digestible version. But these are not the only two options. As Boris hinted during his leadership campaign, only to be unfairly cut down, there is a third way.

May’s deal is based on a withdrawal agreement (WA) negotiated under Article 50 of the Treaty on European Union. It is improbable that a tweaked version of this could form a viable basis for leaving the EU — and not just because the WA has already been rejected in the Commons three times. A WA based on Article 50 could not be ratified by the UK until a full Act of Parliament had been passed, implementing it into our domestic law. It is quite impossible in the time available to negotiate changes to the WA and then pass the complex and controversial implementation bill through all stages in both Houses in time for us to leave the EU on 31 October.

The outgoing May administration has prepared a draft implementation bill which has been kept under wraps. In theory, that ought to save time. However, this bill is known to contain at least 175 clauses, many of which will be very contentious. The bill will entrench the so-called ‘direct effect’ of the WA — and make it supreme over UK laws, including over future Acts of Parliament. It will make future ECJ judgments binding on UK courts across the board during the roughly two-year transition period, and for an indefinite time in some areas, such as EU citizens’ rights, and within Northern Ireland under the backstop protocol.