The self-satisfied, smug smiles of those who arrogantly proclaimed that tearing up the Standing Orders of the House of Commons and creating a dangerous constitutional precedent would produce a way forward in the current Brexit impasse, turned into angry scowls when, for the second time, Parliament was unable to come up with a solution which commands a majority last week.
Without the least sense of irony, those who quite rightly pilloried the Prime Minister for bringing her failed deal back for a third vote believe that they should be allowed a third attempt to get their preferred option adopted. Even if they were to get a majority for one of the Remainer options (which are the only ones the Speaker has allowed the House of Commons to consider), there is absolutely no reason why the Government should run with it and every reason why it should refuse to promote something which would tear up its own manifesto and split its own party. To recap on the four options rejected in the last week’s indicative votes:
- Kenneth Clarke’s customs union proposal would remove any ability for the UK to have control over its trade policy, would result in us having to pay huge amounts into the EU and not deal with the United Kingdom-splitting backstop.
- Nick Boles’ “Common Market 2.0” proposal keeps us in the Customs Union, the Single Market, requires us to keep open borders and pay for the privilege, while having little say over the rules which the EU would impose on us. It is not even clear after having conceded all that whether the backstop imposition would be fully removed.
- Peter Kyle’s confirmatory vote is no choice at all since it would give a referendum where the public could choose between remaining in the EU or accepting a Remain Parliament’s version of Brexit which would keep us so involved with the EU that we may as well be full members. It’s a real Hobson’s choice dressed up as a democratic exercise.
- Joanna Cherry’s Article 50 revocation proposal is simply a call to abandon the result of the 2016 referendum.
It is hard to see any basis on which the Government could adopt any of those options unless it was prepared to ignore the views of the majority of its own party and drive through the policy or policies of its opponents. Surely even this dysfunctional Government would baulk at that?
It’s easy to shoot down others’ proposals but that is no substitute for a strategy to break the impasse. This is caused by the backstop in the Withdrawal Agreement and the impact it would have on the unity of the UK and the restrictions it would place on the ability to negotiate our future relationship with the EU which would not be detrimental to our economic and legislative freedoms and which would not have us prisoners of the EU until we agreed whatever deal suited its objectives. That is why the backstop has to be dealt with.
Impossible, say some, because the EU have said they will not reopen the Withdrawal Agreement. Yet it is clear that the argument on which the backstop is based – i.e. the unacceptability of a hard border between Northern Ireland and the Republic of Ireland – is no longer a credible threat since the EU and the Irish Government have demonstrated in their plans for a no-deal Brexit that it can and will be avoided.
The Government may have weakened its hand by its own pathetic negotiations, but it still has arguments which could be used to have the toxic backstop removed instead of either becoming the advocate for the policies of the Labour Party, the SNP and the Lib Dems or continuing to hope that it can get the Withdrawal Agreement accepted by wearing down the opposition to it.
Neither can succeed and both run the risk of destroying what credibility the Government has with its own frustrated and angry supporters. There is still time to put the heat on the EU.
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Theresa May has been making a habit of saying different things – sometimes diametrically opposite things – to different people in her increasingly strident attempts to bludgeon down resistance against her toxic Withdrawal Agreement. To Remainers she has been saying that voting against her deal will lead to a no-deal exit; while at the same time telling Brexit supporters that voting against her deal will lead to no Brexit, or at least to a long extension.
The latest example of this kind of tactic came when it was reported in The Times on Friday 5th April that “Senior ministers told their Labour counterparts yesterday that Theresa May’s Brexit deal with the European Union already includes a customs union ‘in all but name’.”
This is the very same deal which Theresa May has spent the last few months assuring Brexit supporters would not require the UK to be in a customs union with the EU and would allow the UK to pursue an independent trade policy.
It is this persistent but transparent duplicity – transparent in the sense that a two-year old child could see through it – which has destroyed the credibility of the Prime Minister and eliminated any trust in her on the part of her country, her party, or for that matter the EU leaders with whom she tries to negotiate.
So which is right? In this instance of the customs union and her deal, what senior ministers told the Labour Party is true and what the Government has been telling Conservatives and Brexit supporters is not. As I explain here, the backstop Protocol is a customs union, so if we cannot do a long-term deal with the EU, then we will automatically fall into it and will be stuck there until the EU lets us out. And the Political Declaration which sets out certain aspects of our long-term relationship requires the UK to submit to a customs arrangement built on the backstop, and rules out a conventional Canada-style Free Trade Agreement. Moreover, the legal linkage between the Withdrawal Agreement and the Political Declaration means that the EU will be legally entitled to require the UK to enter the backstop and stay there indefinitely if the UK tries to secure a long term agreement which departs from the Political Declaration.
State aid controls
There is another aspect of the Withdrawal Agreement which it seems the Government has not been so keen to explain to the Labour Party – that is its provisions on State aid controls. These controls would fully apply during the transition period, but then the UK would be compelled to carry on applying EU rules on State aid even after we have left the transition period as part of the backstop. The European Commission would “supervise” the way the UK’s Competition and Markets Authority carries out its task. We would continue to be bound by the judgments of the European Court of Justice on the ever-expanding scope of EU State aid rules.
Paragraph 79 of the Political Declaration requires the UK to incorporate into our long-term agreement with the EU State aid rules “built on” those in the backstop. So we would be unable to escape from these rules even if we negotiate our way out of the backstop. My advice to the Labour Party is “read the small print before signing anything”.
But deep worry about a foreign power exercising these State aid controls over the UK should not be confined to socialists intent on subsidising and nationalising industries. They strike directly against pro-competitive tax policies introduced by the Conservative Government. On 2nd April, the European Commission announced a finding that the UK’s “controlled foreign company” tax rules breach EU State aid rules. This has been greeted with a Sunday Times headline: “Brussels lands FTSE giants with £1bn tax bill”.
The absurdity of this situation is that if Theresa May had not chosen to exercise prerogative powers in a legally questionable and constitutionally unacceptable way to extend Article 50, we would have left the EU on 29th March and the European Commission would have been powerless to make a finding against the UK on 2nd April.
As it is, the Commission will be able to pursue us on this issue for as long as we stay in an Article 50 extension. If we were to agree to Theresa May’s Withdrawal Agreement then the Commission could carry on pursuing us throughout the transition period and indeed would be entitled to bring a case against us in the ECJ up to four years after the end of the transition period.
It is impossible to understand why a term so detrimental to the UK’s national interest was ever agreed, in what must amount to the most incompetently conducted negotiation in the history of the world.
Can we get out of a customs union?
The Attorney General Geoffrey Cox QC seems to have become something of an advocate for staying in a customs union with the EU, as a possible route for leaving the EU. In an interview with Laura Kuenssberg on 3rd April, Geoffrey Cox claimed that if, “in some considerable years time”, we wanted to leave that customs union then “There’s nothing to stop us removing ourselves from that arrangement, so we can’t look at these things as permanent straitjackets upon this country.”
This is a very important claim, and it needs to be looked at very carefully before it can be accepted.
A normal customs union treaty, like all trade treaties, would contain a notice clause – so we could leave a normal customs union agreement if we wanted to. But the problem is and remains the Withdrawal Agreement and its backstop Protocol which, as Geoffrey Cox rightly acknowledges, allows the EU to lock us in indefinitely.
If the Prime Minister’s proposal were to strip the backstop Protocol out of the Withdrawal Agreement and replace it with a customs union agreement with a notice clause, then what Geoffrey Cox says would be true.
However, it seems that that is not what the Prime Minister is proposing. She apparently wants to keep the legally-binding Withdrawal Agreement and backstop Protocol, and, to appease Jeremy Corbyn, to add an explicit commitment by the UK to enter into a long-term customs union agreement on top of that.
And why, in those circumstances, would the EU agree to include a normal notice clause in the customs union agreement? That would provide to the UK an escape route from the Irish backstop which would be blindingly obvious to the EU. So instead of a normal notice clause, they will insist on a clause which reinstates the backstop Protocol if the UK drops out of the Customs Union agreement. The EU will argue that this is necessary to protect the peace process etc. etc., if the UK ever decides to leave the Customs Union.
There does not seem any legal way of preventing the EU from insisting on this. Our negotiating position will be incredibly weak, given that if we do not agree to the terms on which they insist for the future relationship agreement then we will drop automatically into the backstop Protocol and stay there indefinitely.
From the EU’s perspective, it is hard to see why they would ever give up the backstop Protocol if we are foolish enough to agree to it becoming binding. It will act as a permanent dog leash with which the EU can restrain the UK’s international trade policy and competitiveness, which sill sit behind any trade agreement we do with the EU.
If the Attorney General wishes to persist in making claims that “there’s nothing to stop us removing ourselves from” a customs union, then he needs to explain exactly how we can escape from the backstop trap.
This illustrates the fact that the real poison in the deal which Theresa May has negotiated with the EU is the legally-binding Withdrawal Agreement and its backstop Protocol with no unilateral exit clause. For inexplicable reasons, she seems determined to persist in inflicting this unprecedented treaty on the United Kingdom, regardless of the form of the future relationship with the EU.
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There is no doubt that Theresa May’s Withdrawal Agreement is a terrible deal. It gives the EU pretty much all they could have ever hoped for, and achieves absolutely nothing for the UK. That was cruelly illustrated by the Prime Minister’s doomed attempt to sell the deal directly to the electorate in December. Claiming that she had “negotiated” all sorts of things that we would have got simply by doing nothing for two years was sadly typical of our bumbling Prime Minister.
So yes, the Withdrawal Agreement is truly awful. But it looks increasingly as if it is all Brexiteers will get. So is it worse than Remaining, as some claim? No, it is not. There is hope, and we should carefully consider whether we accept the tiny sliver of Brexit being offered. That is not to say that if May’s deal passes, achieving a proper Brexit will be easy. The backstop looms over any negotiation, and there are many other obstacles. But it is still possible, and the backstop might just be the reason why.
Let’s start with the (very) limited good news. If May’s deal passes, we will legally have left the EU. That seems a small thing, but it is not. Leaving will kill off both the second referendum and revoke Article 50 campaigns. From 30th June, if we have left by then, the attitude amongst the general public will range from apathetic to ‘couldn’t care less’. The UK will breathe a huge sigh of relief and hope they never have to think about the EU again.
Those Remainers who want to fight on will have to rename themselves and become Rejoiners. And rejoining is a much harder task than remaining. The status quo is always powerful and the status quo will be out. Describing how wonderful it will be to hand over £9 billion (or more) each year to have more expensive food and to pay for a pointless parliament will not be easy. Nor will making the case for freedom of movement. And Rejoiners will have to set out where the EU will go. That means facing up to the claims about a federal Europe, the euro, an EU army and all of the other things that are deeply unpopular amongst the electorate.
As important, the EU is likely to be mired in its own problems for the next few years. The Eurozone economy is looking very fragile, populist parties are on the rise across the continent and the hole caused by the loss of the UK’s net contribution will need to be filled. The EU is unlikely to look a very attractive place to be part of, however hard Rejoiners try.
There will be therefore a breathing space for Leave MPs and supporters to regroup and recharge. Leavers have spent so much time and energy fighting on all fronts against all sorts of lies, disinformation, politically-motivated legal challenges and all the rest that there has been no time for the real arguments. Accepting May’s deal offers a chance to go back to the whole point of Brexit, rather than – at best – another year of the same old chaos.
Once the dust settles, it should then become apparent that the deal with the EU is largely something everyone in the UK can agree on: sensible rights for EU and UK citizens, ease of travel and flights, but the UK determining its own immigration policy, co-operation on security, crime, defence and terrorism. Most of us will want the UK to retain control over our fish and we will not want to pay over billions each year without some clear, defined benefit. Whether all of that can be achieved obviously depends on the EU, but also on how we negotiate.
That leaves the one area that will be contentious: the trade relationship. For most Leavers, (and many soft Remainers) the obvious stating point is to make an offer to the EU of a full and comprehensive free trade deal – Canada++ say, or something similar. That will put both the EU and those MPs who still demand a customs union in a difficult position. To say that it is not enough will be unconvincing: the differences between a proper FTA and a customs union are relatively small, and, crucially, smaller than between WTO terms and a customs union. More importantly, MPs and others will be able to approach the debate more sensibly. This will no longer be about Remain versus Leave, but about the benefits and costs of the different ways of trading with Europe.
Claims of economic disaster from going the FTA route will simply not be credible and the dense fog of Common Market 2.0, EFTA, Norway Plus and all the other options floated will have lifted. A clear choice can be presented: a deep and comprehensive FTA with no rule taking and our own trade policy or a customs union with rule-taking and no independent trade policy.
To back up that argument, the UK could show progress in negotiating FTAs with other countries. Conservative MPs, even those who today are fervent believers in a customs union, will struggle to turn down a coherent and liberal free trade policy and continue to claim that the customs union is vital to our prosperity.
Of course, this all presumes that the backstop does not drive the negotiations straight to a customs union. But that depends crucially on how the UK chooses to negotiate. We need to ditch our usual tactic of clichéd and pointless red lines. All that happens is that these get negotiated to within a whisker of being breached. Instead we must set a small number of clear goals that must be achieved. That makes the negotiation offensive rather than defensive.
Setting the two fundamental goals is crucial to the negotiating strategy: first, a comprehensive free trade agreement and second a non-trade based solution to the hard border issue. Crucially, these two objectives must be kept completely separate.
There is no doubt that will be very difficult. The EU – rightly – fears the UK becoming highly competitive outside its control. It will try and negotiate the two as a single issue to keep the UK in a customs union. But how could it refuse to negotiate an FTA with the world’s fifth biggest economy? Only by saying it doesn’t solve the border issue. That is why the border and the trade relationship must be considered separately from the outset. Have two teams, have two reporting lines, keep saying that trade and the border are different issues and, most importantly, that the two can conclude independently, at different times. In other words, the UK will sign an FTA even if it means going into the backstop for a while and putting the FTA on the shelf. Once we are out of the backstop, the FTA comes into force. Again, how could the EU refuse that approach?
This approach has numerous other benefits. It allows the trade deal to have a typical exit clause. It allows the UK to negotiate FTAs with other countries, knowing that we will have no restrictions once we solve the border problem. At the same time we can set out our tariff schedule and how we will help developing nations to trade with us. We can start to think about deregulation and tax and investment incentives, ready to implement what we want as soon as we can.
Pushing the EU on both fronts separately makes sure it uses “reasonable endeavours” on both issues. It also ensures that the EU has to properly consider every option for the border rather than relying on the customs union as the solution. So how would the EU react? If it cannot refuse to negotiate an FTA with us, would it simply dump us in the backstop and forget about us? That will be hard to do.
The EU says the backstop is not meant to be used and can be avoided. The EU may say that because it views it as a nuclear weapon, the ultimate deterrent. But if it does, it has miscalculated, because nuclear weapons are not deterrents in anything but massive, global conflicts. The backstop is simply too dreadful to be used except in absolutely exceptional circumstances. Mervyn King pointed this out, predicting that the terms are so bad the UK would eventually be forced to abrogate the treaty.
Nobody in the UK will demand that we enter – let alone stay in – the backstop, provided we can show that we have a reasonable answer to the hard border issue. Whereas now saying we have no solution to the hard border can be used by Remainers as a stick to try and keep us in the EU, once we have left it would be a stick to force us into or keep us in the backstop. Who is going to make that argument, even if they see it as part of a long-term plan to get us to rejoin the EU?
There has already been movement on the Irish border problem as the EU worries about No Deal. Over the next two years, there will inevitably be further progress because the technology that could be used there is beneficial everywhere. The EU could not implement or allow technological solutions at other borders and deny they could be used in Ireland. Hopefully Ireland will come to its senses once we have left, and drop its inflammatory rhetoric. It can then make a rational choice between forcing the UK into an unnecessary and hated backstop or accepting an FTA and technological solutions. It is difficult to see Ireland’s advantage in pursuing the former course once we have left.
Crucially, saying we will sign an FTA without agreement on the border dares the EU to drop the bomb. And that will give it pause because the nuclear option is the EU’s only weapon. Would the other EU members see it as appropriate and proportionate when there is an FTA waiting to be used? I suspect not, because it sets a terrible precedent for them too.
And this is the other aspect of the deterrent Leavers and the EU have not properly considered. We can call the bluff because otherwise the UK might as well not bother turning up to the negotiations at all. We might as well just wait for the EU to send us the deal and sign it. Leavers are right to point this out but we are being too defeatist to say we can do nothing to stop it. We can. All we need to believe is that there will be solutions to the hard border issue, and that if we hold our nerve, the EU will have to admit that. Is the Withdrawal Agreement something the UK should agree? No, absolutely not. Is there a chance to make it into something acceptable? Yes, if we are smart.
The theme for Westminster this week has been a political trap. Remainer MPs seem to have finally ensnared the Prime Minister with the advent of ‘Indicative Votes’. Consequently, Mrs May seems to have trapped at least some of her eurosceptic rebels with the threat that the only alternative to her deal is no Brexit.
For Brussels and Dublin, however, as the DUP’s Brexit spokesman Sammy Wilson has argued, it is like cats let out of bags over the Irish backstop.
The Irish border quickly became the thorn in the side of the Brexit negotiations. The backstop was designed by the EU, Ireland and – to its shame – the UK Government, in order to prevent a hard border on the island of Ireland in the event no agreement is reached between the UK and the EU.
The backstop has now become the major problem with May’s Withdrawal Agreement. It is by no means the only problem with the Agreement. Get Britain Out has documented at least 15 major failings here, and Britain would be preposterously shackled to EU institutions indefinitely unless a UK Government was prepared to conscience the unconscionable by allowing Northern Ireland to end up under EU jurisdiction.
Brexiteers have been consistent in upbraiding the outlandishness of the backstop because it blackmails the UK into remaining within the EU or risks the annexation of its territory. What’s more, it is wholly unnecessary. Firstly, the hard border was a phantom created to scare the UK. Both the UK and Irish governments have made it clear they would not erect a hard border which could therefore only come into effect if it were imposed and erected by the European Union.
Secondly, if the problem was willed by the EU, so too was the denial of its solution. Political will and goodwill are very different things. Both the EU’s Chief Brexit Negotiator, Michel Barnier, and Leo Varadkar, the Irish Taoiseach, have continually refused to consider intuitive technical solutions involving customs checks away from the border in the event of No Deal. These would ensure smooth cross-border trade as they do increasingly across the world.
Indeed, as recently as February, the suggestion technology would obviate a hard border, rendering the backstop unnecessary, was frustrating the Taoiseach. It has been fascinating to observe, then, how earlier this week this has become the position of both the Irish Government and the EU in the event of a no-deal Brexit.
The EU has announced it is “working very closely with Irish authorities to try and perform controls away from border”. Varadkar is confident a special arrangement can keep the border in Ireland invisible in a no-deal scenario. He is right to be confident. He and the EU were wrong to deny the undeniable for so long.
With the political and moral EU-Irish justification of the backstop crumbling, the bad faith with which the EU has been conducting the negotiations is now abundantly clear. Yet the Withdrawal Agreement still stands, proof of the con played by the EU and Ireland to keep Britain as closely tied to the EU under highly restrictive terms.
It is one thing for the EU and Ireland to have made their bad faith and the unnecessary, draconian nature of their agreement so clear. It is quite another for the UK Government to have let this happen in the first place, and to have put itself in a position where it is both unprepared and unable to stand up for itself, tear up the Agreement, leave without one and negotiate a new trade deal from a position of strength.
This, and not May’s Deal, is the only realistic course left open for our withdrawal from the European Union and to save Brexit.
With this in mind, the DUP are right to refuse to be threatened by the Prime Minister into backing her deal. However, they must put the emphasis on the acceptance of a WTO No Deal on 12th April, rather than a long extension which Sammy Wilson is now suggesting. A long extension to the Withdrawal Agreement would give far too much time for the majority of Remainer MPs in Parliament to continue to agitate for a revocation of Article 50 or a second referendum.
Eurosceptics in the European Research Group – blackmailed by Mrs May’s threat of ‘my deal or no Brexit’ – may well vote for May’s Deal as the ‘least worst’ option. They must reconsider just how bad May’s Deal really is.
To examine perhaps the important issue of our defence after Brexit (as Veterans for Britain have briefed here this week), under the wording of the Political Declaration attached to the Withdrawal Agreement, the UK is committed to EU defence architecture to the “full extent possible under EU law”. Therefore it is now drawn to our attention, the UK can either continue to submit itself to full EU defence authority, or we will be forced to remain in the backstop in perpetuity.
As if that false choice was not bad enough, it is the EU which gets to decide whether the UK’s defence commitments match those made in the Political Declaration. With all eyes on the Withdrawal Agreement, it is often forgotten just how problematic the Political Declaration is. This must serve as a timely reminder.
The ‘least worst’ choice is therefore still a very bad choice, which should not be voted for by anyone who wants to Get Britain Out of the European Union and ‘take back control’. The reasons for the backstop con and the subsequent Withdrawal Agreement may well have been illusory, but their dangers are not.
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John Bercow certainly knows how to hog the limelight. The man who drones on and on, lecturing MPs about brevity, was at his grandstanding best in the House of Commons on Monday. But for once, I agree with him. It is wrong for the Government to keep asking MPs the same question in the hope that enough of them will cave in under pressure. Just because the EU deploys the same tactic to deal with recalcitrant voters who have the audacity to vote “the wrong way”, it doesn’t mean that the Prime Minister should be allowed to get away with it.
Thankfully, Bercow’s intervention has spared us all another meaningful vote this week, and although I am sure it was not the Speaker’s intention to help Brexiteers in Parliament in any way, it might just work in our favour.
I have to say that I am disappointed with some of my fellow Brexiteers – many of them personal friends – who have decided to back Theresa May’s deal at this stage in the negotiations. They have their reasons, and I don’t doubt their commitment to the cause. No-one can say that Philip Davies is anything but a committed Brexiteer, and if anyone starts questioning that commitment, I will defend him. No, the reason why I am disappointed is because I feel that their tactics are wrong.
Theresa May has written her letter and is today going cap in hand to Brussels asking for an extension to Article 50 at the European Council meeting. Britain is in crisis, so she says – said as if she is an innocent bystander, not a protagonist of a deal that has been overwhelmingly rejected by MPs and is deeply unpopular with the majority of UK voters.
If she has any sense, she will say that the Speaker of the House of Commons has tied her hands; that she doesn’t stand a chance of getting the current deal through Parliament because he won’t allow her to. “If you want us to leave more or less on time (after a short technical extension), you had better give me something meaningful, otherwise there won’t be another meaningful vote”, she should say. She could use it as negotiating leverage.
The EU doesn’t want a no-deal Brexit which – despite how MPs voted last week – is still the legal default position in just eight days’ time. It doesn’t want a long extension to Article 50 either. It has offered us a truly awful deal that it wants MPs to approve. The EU has to contend with elections this year which are bound to increase the number of eurosceptic populist MEPs. It doesn’t want more of them from the UK. A new Commission has to bed in and doesn’t want to have to continue Withdrawal Agreement negotiations with the UK. It is far better to give some more concessions that will command majority support in the House of Commons (knowing that it still has by far the best part of the deal) than to allow negotiations to keep dragging on.
So please, Brexiteers in Parliament, stay true and be brave. I know that you are facing pressure left, right and centre. The whips are on your back; retired politicians are busy writing op-eds telling you to cave in; newspaper editorials are urging the same; and one of your number, Andrew Percy, the co-chairman of the misnomer that is the Brexit Delivery Group, has accused you of idiocy for holding out. Don’t listen to them. You know that this deal is awful. You know that it is the worst kind of Brexit in name only. Like me, you are probably resigned to not getting the Brexit that you want. You know that you will have to compromise, but you shouldn’t compromise until the second you have to.
MPs will vote again on Theresa May’s deal next week after the EU has made some tweaks, despite what Bercow said on Monday. The Government will get around it with another one or two pieces of paper from the EU. If it is still a bad deal, they should vote it down. Watch the EU stop the clock on 29th March if it has to, and watch them make more concessions. Please remember that the EU has invested an enormous amount of time and effort into these negotiations, too. Theresa May doesn’t want to throw away more than two years of work, but neither does Michel Barnier.
It has to be made clear that the implementation period must be time limited and there must be alternative arrangements to the Irish backstop for the deal to go through. It still won’t be my kind of Brexit, and it still may be a poor deal, but it will be much better than it is now. Importantly, we won’t be trapped.
Now is not the time to give in. There may be just eight days to go, but these negotiations are far from over. Now is the time to fight harder than ever before.
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The threat of an Article 50 extension is causing anxiety for some sincere and committed Brexiteers. Some say they should back Theresa May’s deal to “get Brexit over the line”.
But the deal won’t deliver Brexit. Worse than that, it’ll lock us in to not delivering Brexit for many years to come.
If the deal goes through, the next day we will not have left the EU in anything but name. For at least 21 months of “transition” – extendable up to four years – we will have to obey the EU’s laws and rules, and be subject to the Commission and the ECJ as now. The big difference is that we will no longer have a vote or voice in the EU institutions. So no vote or veto against EU law changes which damage the City, or against the Commission’s use of State Aid controls to suppress our competitiveness.
The Brexit process will not be “over”, or “done and dusted” by signing the deal. Those 21 months – or longer – will be filled with the turmoil of ongoing negotiations about our future relationship. We will be negotiating against a real “cliff edge” at the end of the transition – unlike the largely mythical and Project Fear 3.0 “cliff edge” we face now. If we do not submit to the detailed terms offered by the EU for our long-term relationship, we will automatically fall over the cliff edge into the backstop Protocol.
The threat of this happening will put huge negotiating power – blackmail power – into the EU’s hands, since the backstop locks us out of having an independent trade policy and divides the United Kingdom.
Some people say the negotiations are like a game of football where we have done badly in the first half. They hope maybe we can do better in the second half under a new captain. But these negotiations are more like a game of chess: our current leadership has sacrificed all the major pieces and left the remaining pieces in positions where check-mate is inevitable in a few moves. The most competent and Brexit-committed future Prime Minister could not magically get us out of that situation.
Being locked in the backstop
The Attorney General rightly reiterated his advice that if negotiations with the EU drag on or break down, then under international law the UK risks being locked indefinitely in the backstop. The key danger was spelt out in the last paragraph of his advice: if through no demonstrable failure to exercise good faith “but simply through intractable differences” the negotiations deadlock, then there would be “no internationally lawful means of exiting the Protocol’s arrangements, save by agreement”.
The fundamental problem is that there is no need for the EU to engage in bad faith conduct in order for us to be locked in indefinitely: they just need to negotiate hard for terms we can’t stomach.
But some arguments have been flying around that we might be able to get out by showing the EU is acting in “bad faith”, or because there had been a “fundamental change of circumstances” under Article 62 of the Vienna Convention on the Law of Treaties.
The “Star Chamber” group took the best public international law advice, and concluded that these arguments have little substance. Leading public international law experts such as Professor Philippe Sands QC and Sir David Edward (the former British ECJ judge) have publicly expressed similar views.
Professor Guglielmo Verdirame of King’s College London takes a different view from other experts. He says that it is “not fanciful” that the EU might be found in bad faith if it “persistently and unreasonably” refused to conclude an agreement.
Let’s assume that he is right and that other distinguished public international lawyers are wrong. After an unknown period of time stuck in the backstop, and depending on the behaviour of the EU, the UK might have a case which is “not fanciful”. That case would then go to an international arbitration panel which would take months or years to rule. Before coming to a decision that panel is required to refer any issues of EU law to the ECJ in Luxembourg for a binding ruling. If Prof Verdirame is right, it is “not fanciful” that the UK might win: but if the arbitration panel rules against the UK, then we are completely and utterly snookered.
If the best advice I can give a client about a case is that it is “not fanciful” that he might win it, the client would need to be mad to go ahead with it – particularly if the downside of losing is huge, and other lawyers thought that the chances of winning are near zero.
The upshot is that if we agree the deal, we will be locked into the backstop and there will be no way out of it which is under our own national control. These theoretical legal arguments do not change the dynamics of the negotiations in practice. We would still have to negotiate with the EU on the basis that we are certain to have to go into the backstop if no deal is agreed before then, and that we would then have no reliable way out of it except with the EU’s agreement. The prospect of hanging the whole fate of the country on the roulette wheel of presenting some novel legal arguments to an international arbitration doesn’t help in the real world.
But what happens if Mrs May’s deal is defeated for a third time?
What has spooked some Brexiteers is President Tusk’s talk about a possible 21-month extension to our EU membership under Article 50. Such talk is cheap – it does not commit the EU’s leaders to grant an extension. Tusk is clearly trying to influence the political process within the UK. People shouldn’t be naive and fall for it.
There are big obstacles against a long Article 50 extension actually happening. All 27 EU member states need to agree it unanimously. If the EU offer it at all, it needs to get through our Parliament with whatever conditions the EU attach to it – and these conditions could require Parliament to pass primary legislation.
The leaked ‘Room Document’ prepared by officials for the forthcoming European Council meeting makes it clear that if an extension goes past 2nd July at the latest, then the UK must as a matter of EU primary treaty law (which cannot be changed in the time available) hold European Parliament elections in May. This is a big downside for the EU, as is the prospect of the UK as a full voting member state causing trouble for the next two years.
But what if the worst happens and an extension is agreed? That would be an appalling betrayal of the referendum result by arrogant parliamentarians who would rightly be held to account for their actions.
But the actual legal consequences would be much less damaging than the May deal. We would be hugely better off than under the deal. We would have effectively the same transition period as under the deal, with the big difference that we would still have a vote and voice in the EU institutions. But the biggest difference is that we would not be locked into the backstop at the end of 2020 or into the other very damaging parts of the deal which have been overlooked in the furore over the backstop.
It is understandably difficult for people to follow the different parts of this complex deal, what is in the Withdrawal Agreement itself, what is in the backstop Protocol, and what is in the Political Declaration attached to the deal. At Lawyers for Britain we have published a master chart which shows where the main problems are and has links to more detailed explanations.
There are some very bad parts of the deal apart from the backstop Protocol. We would have to carry on paying vast sums of money after 2020 which we do not owe under international law. The EU law which the deal applies to us even after the transition period is over would carry on having direct effect and supremacy in our courts over UK law for the indefinite future – something that leaving the EU was meant to end.
And the overlooked Political Declaration contains very damaging provisions. People think that because it is not legally binding, it can just be ignored and we can negotiate with the EU afresh. That is not true. Article 182 of the Withdrawal Agreement commits the UK as well as the EU to use best endeavours to negotiate an agreement in line with the Political Declaration. This means that if we ask for something in the future agreements that contradicts the Political Declaration, the EU can legitimately say that we are not complying with our obligation to negotiate what is in the Political Declaration and therefore the EU has no obligation in turn to give us an agreement which departs from it. Result: we are locked into the backstop with no way out, and no way to complain.
Although much of the contents of the Political Declaration are mere outlines, it does contain prescriptive provisions which are contrary to UK interests. The most damaging is probably Paragraph 23 on tariffs, which is simply not compatible with us negotiating the Canada-style Free Trade Agreement with the EU favoured by most Brexiteers. Instead, it requires “ambitious customs arrangements… that build and improve on the single customs territory” in the backstop. Dominic Raab resigned over the inclusion of this wording in the Political Declaration.
Paragraph 124 of the Political Declaration pre-commits the UK to carry forward the unequal disputes procedures of the Withdrawal Agreement, under which the ECJ will maintain jurisdiction via a backdoor (but effective) mechanism under which the ECJ’s rulings on EU law issues will bind the neutral arbitration panel. This extraordinary mechanism is totally contrary to international treaty practice under which sovereign states do not submit themselves to the courts of the other treaty party, and has so far only been imposed by the EU on the desperate former Soviet republics of Ukraine, Moldova and Georgia.
Paragraph 75 states that: “Within the context of the overall economic partnership the Parties should establish a new fisheries agreement on, inter alia, access to waters and quota shares”. This does not contain detail but is a concession in principle by the UK on there being fishery quota sharing as part of the economic partnership with the EU. The EU will undoubtedly leverage this concession to demand continued access to UK fishing waters for EU boats and the UK will be in a very weak negotiating position to resist the EU’s demands.
Mrs May trumpets the end of free movement of persons as her great achievement. But Paragraphs 50 to 59 of the Political Declaration commit the parties to establish “mobility arrangements” to replace free movement, and “to consider addressing social security coordination in the light of future movement of persons”. The precise content of these arrangements is not spelt out, but in view of its weak negotiating position up against the backstop, the UK may well be hard pressed to resist pressure to expand these arrangements.
If we are subjected to an Article 50 extension instead of the deal, none of these damaging provisions or negotiating constraints would apply to us, leaving a future Prime Minister in a position to negotiate with a free hand.
Conclusion – the choice
The threats of an Article 50 extension have created a dilemma which worries many committed Brexit supporters. I understand those worries. An emotional response is to just grab onto the deal, even if it is horrible, in order to “get Brexit delivered”.
But at this critical time it is vital that our MPs should vote not just on emotion but after looking very carefully at the legal as well as the political consequences of the courses of action.
The deal does not deliver Brexit except in name. Not only does in not deliver Brexit, it also makes it impossible for a future Prime Minister to deliver a real Brexit as well, for many years to come or indefinitely. The momentary relief from some Leave supporters at nominally leaving the EU is sure to turn to anger, disillusionment and blame when it becomes clearer and clearer that Brexit has not been delivered, and that the Conservative Party in particular – including the Brexiteers – has failed to deliver real Brexit and has delivered a locked-in fake Brexit instead.
But if the deal is rejected, the most likely outcome is that we get out on 29th March with the referendum objectives achieved of taking back control of our laws, our borders, our trade and our money. Please see the excellent article by Christopher Howarth which explains why it is so difficult for Remainers to force through an Article 50 extension in the remaining few days if the deal is rejected again.
It was bound to get rough as we approach the point of actually leaving the EU. Now is not the time to lose our nerve and back a gravely damaging deal which would betray Brexit supporters and be very bad for the country. Contrary to the Prime Minister’s contention that it is patriotic to support her deal, the patriotic thing to do is to throw it out again.
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The Withdrawal Agreement has been defeated twice by historic margins, for all the reasons we are all too well aware of – not least the inability to escape the horrors of the backstop.
In normal times a government defeated on a major policy would show some contrition, maybe even resign, but not this one. MPs are going to be invited to vote again and again until, well, they sign away their right to vote to the EU27. This is an idiotic policy that is bound to fail. If you ask the same question, you get the same answer.
Before the second defeat of the ‘deal’ and Tuesday’s vote on a motion to take ‘no deal’ off the table, I wrote that the Brexit result “is already a foregone conclusion”, asserting that it’s already a certainty that we will leave on 29th March without a deal or without the backstop. So far I have not heard any credible counter-arguments.
So, following this week’s events is this still true?
Yes, and more so.
So where are we now?
- We are two weeks away from Brexit with very few sitting days left in the Commons and Lords. This makes the Remainers’ games very, very difficult. They have to push their deal or proposition through. Opponents hold the castle, guarding the pass.
- The Commons has just voted decisively against a second referendum – the only remotely viable way to reverse the result of the first – by a resounding 334 to 85 votes.
- The Commons has voted to take ‘no deal’ off the table in a non-binding motion. This is obviously an affront to logic and the UK’s negotiating hand, but does not change the situation from the last time Parliament did this.
- The Commons has rejected the constitutional monstrosity of the Benn amendment to take control of the Order Paper to allow indicative votes next week.
- The Commons on Thursday passed a Government motion to ask for an unspecified extension for an unspecified purpose.
So will the Prime Minister bring the Withdrawal Agreement and Political Declaration back for another try?
Quite probably; she has not shown any imagination ever since she first embarked on a secret two-year attempt to embed the UK in a permanent customs union. She did not blink at the reception Chequers received, she barely blinked when defeated by 230 votes. Honourable pro-Leave Cabinet Ministers resigning left, right and centre is all just water off a duck’s back. Yes, she will try another vote, Plan B is Plan A and C-Z ditto. She will lose.
There is a parliamentary rule in Erskine May that you should not ask the Commons to vote twice on the same subject. This was arguably broken on Tuesday, but it’s worth asking: can she now extract changes to her deal to present a new proposition? The answer is probably no.
No, because the Prime Minister does not want to change her deal. No, because when presented with the chance to vote on the Malthouse proposals for alternatives to the backstop, she refused (along with her Brexit Secretary). She has allowed her own Cabinet to sabotage her negotiating hand, because she is not proposing to negotiate. She does not support changing the backstop – so it won’t be changed.
There is a European Council meeting on 21st March, so might it be possible the EU27 throw the Prime Minister a new meaningless piece of paper for the Attorney General to opine on? Still possible, but it is already clear it will make no difference.
MPs will be asked to vote on the same deal and will give the same answer.
But that is not everything. There are some genuine fears exercising some MPs, pushed out by Number 10 and certain ambitious Cabinet Ministers, who want to vote for the deal and be Prime Minister.
1. If MPs vote down the ‘deal’, they will allow Remain MPs to force through an extension?
In fact the guaranteed way to an extension is to vote for the Withdrawal Agreement as the Government has itself argued (and the Commons has passed a motion to the effect) that it will require an extension to prepare legislation to implement the deal. Therefore, MPs voting for the deal will also have to vote for an extension, otherwise the deal will time out as the passing of the legislation is a condition of ratification.
But running with the argument, we have ruled out a second referendum, and won’t extend to implement the ‘deal’ when the deal is defeated. What is left? Will the Prime Minister tear up her deal and seek an extension for something else? The EU will not allow an extension for no purpose (as acknowledged in the Government’s motion passed on Thursday), and nor will the Conservative Party or Parliament. The last deal took two years to negotiate behind the backs of the Cabinet, there will not be any new negotiation, so will the Conservative manifesto be ripped up and the UK participate in Euro-elections? No. The Prime Minister is not that foolhardy. At worst, we might see a short extension to prepare for ‘no deal’, but that itself is unlikely and hardly a reason to back a disastrous deal.
2. If MPs vote down the ‘deal’ they may get a new Prime Minister? And tidy up afterwards?
A line touted by various Cabinet Ministers, this is a fundamentally dishonest argument. Not only would any promise by the Prime Minister to stand down be ignored, it would not solve anything. In the backstop even Genghis Khan as Prime Minister would come up against the fundamentals of international law. But we won’t have Genghis Khan, we will no doubt have a Prime Minister who voted for a deal that he/she now seeks to unravel against Foreign Office and Civil Service advice. An unlikely and self-serving tale.
3. Labour will vote for the ‘deal’?
This scenario comes from the same school of thought that believed Labour would vote for a second referendum. It misunderstands the nature of opposition and the Labour leadership. Labour have no interest in taking part ownership of an unpopular deal. They want government and leaving the Tory Party in sole ownership of the deal suits them just fine.
4. The ERG and DUP will fold?
The most ludicrous and lazy of all journalist lines, spun by an increasingly desperate small group of centre-right commentators and think-thanks close to the Cabinet, is that the DUP are biddable, and the European Research Group will fold. This is rot. It should come as no surprise that the DUP are Unionists and the ERG MPs are largely life-long eurosceptics committed to the UK Parliament making UK laws. This is not going to change. Of course, there are trades in the normal course of politics, but no party or group can trade away policies that are existential to their identity. Sir Bill Cash will not agree to the EU legislating in the UK any more than the DUP will agree to separate treatment for Northern Ireland. And remember the Withdrawal Agreement cannot pass without the DUP or ERG.
So there we are. The ‘deal’ will be defeated again. It may be defeated several more times until the Prime Minister is dragged from her roulette table.
So, what of the other horror scenarios being used on MPs? They have no substance. There is no reason to vote for the deal you dislike because you fear the machinations of someone else – particularly when the machinations are ephemeral and vaporous. A miasma seeping out of Downing Street and its allied think-tanks. No MPs will not be fooled by this.
Why vote to give the Prime Minister a victory into a permanent backstop if you want someone else to negotiate the trade deal? Why believe the threats of a Conservative Government that it will act against its own and the country’s best interests to threaten its own MPs into submission? These are dark arts, practised by a particularly hapless novice wizard.
Downing Street’s last weapon is fear – fear they may do something even worse to themselves than they were already planning! To paraphrase the lesser Roosevelt, the only thing we have to fear is fear itself – and MPs are not fearful of a weak unimaginative Government desperate to push through a failed deal.
Parliament does not want to re-join the EU, it does not want a referendum. It cannot ask for an extension to implement the deal if MPs don’t want the deal. And nobody could stomach another drawn-out negotiation going on for potentially years and the imminent prospect of European Elections, manifestos, campaigns and all that comes with them. Once you have eliminated all the alternatives, the conclusion is staring you in the face – the UK will leave on 29th March and take back control.
The post Ignore the nay-sayers – here’s why we’re still on course for a clean Brexit on 29th March appeared first on BrexitCentral.
As Attorney General Geoffrey Cox’s attempts to procure a legally-binding change to the backstop appear to have proven futile, the last hope for Theresa May’s deal is slipping away. Reportedly, the Cabinet already anticipates another crushing Commons defeat when the vote is held tomorrow.
As with the earlier vote in January, the Prime Minister will be outflanked on both sides. Firstly, by Remainers of all stripes who seek to press home the huge advantage May ceded to them: following the rejection of her deal, in two subsequent votes, these MPs will be able to rule out a No Deal with World Trade Organisation rules, and then seek an extension to Article 50 in the hope of bringing about a second referendum.
On the other hand, the eurosceptic Conservatives of the European Research Group, led by Jacob-Rees Mogg, have made it abundantly clear they will not vote for the Withdrawal Agreement without real movement on the backstop. In line with their ‘three tests’, the ERG rightly demands a temporary arrangement from which Britain could unilaterally exit, replacing the potentially indefinite one which would turn Britain into a vassal state. Geoffrey Cox, however, is getting nowhere fast; and for the second time, May’s deal seems doomed.
In terms of leverage over her divided party, May can no longer use the threat of No Deal to bring Tory Remainers round to her deal, after sanctioning the 13th March vote – however hard she tries. Clearly, the Government still thinks it can use the opposite threat of ‘No Brexit’, or ‘No real Brexit’, to whip the troublesome eurosceptics into line. Accordingly, the Prime Minister used her speech in Grimsby on Friday to frame her deal as the last chance for the ERG – and Brexiteers – to get something resembling what they want.
Another key player, Philip Hammond – the anti-Brexit Chancellor, as Get Britain Out has previously written about here – could hardly have been clearer about this when he warned last week:
“For those people who are passionate about ensuring that we leave the European Union on time, [the prospect of a vote to delay Brexit] surely must be something that they need to think very, very carefully about now because they run the risk of us moving away from their preferred course of action if we don’t get this deal through.”
Rightly however, the ERG are showing resolve in the face of this tactical threat. Jacob Rees-Mogg argued last week that even if her deal is rejected and MPs vote for an extension to Article 50, these votes are not legally binding. It still remains in the power of the Government to deliver Brexit on time given ‘votes in the House of Commons cannot override the law’. May could choose not to request the extension from the European Union. It is therefore possible to oppose both the current deal and the efforts to delay the satisfaction of the referendum result beyond 29th March.
Despite the tumult of the past few weeks, we must not forget that in law, following the passing of Article 50, the UK is set to leave the EU on 29th March – with or without a deal. If May is truly determined to deliver Brexit on the 29th, then there is a clear and legal route for her to do so following the likely defeat of her deal.
A WTO No Deal Brexit would ensure Britain leaves the European Union on time, in accordance with Article 50. Yet pursuing this course would not merely be an exercise in damage-limitation. The course remains attractive in and of itself. The economic case for No Deal has been made by Get Britain Out here and here.
What’s more, a WTO No Deal Brexit would firstly deliver on most of the Leave platform and, secondly, present major improvements to the Prime Minister’s deservedly unpopular deal.
Firstly, the repatriation of control over laws, money, borders and fisheries would be secured by a WTO No Deal Brexit. Only a free trade deal with the EU would be missing. On the other hand, precisely such a trade deal with the EU27 would become more likely in the event of No Deal. It has proven so elusive during the negotiations because Britain’s bargaining power has been continually squandered by the Government, ably assisted by the Labour Party.
Jeremy Corbyn has not only come out in favour of a second referendum, but has long advocated Customs Union membership post-Brexit. Whether it is attempting to tie the UK to EU regulatory standards indefinitely, or reverse Brexit completely, such measures can only have given succour to all those on the continent who have never taken Britain’s decision to Leave seriously.
However, if Britain simply Leaves the EU on 29th March, and pursues the radical free trade programme of tariff cuts on up to 90% of imported goods – as leaked from Liam Fox’s Department for International Trade last week – we could call the EU’s bluff by daring to prosper outside its institutions.
Under this ‘hard but smart’ Brexit, as recommended by the IFO Institute in Germany – one of the leading economic research institutes in Europe and regularly quoted in the German media – costs for consumers and businesses would be cut whilst Britain’s negotiating hand would be strengthened. So far, the Government’s unwillingness to present No Deal as a viable option has tied its hands in Brussels. Ironically, this lack of belief in Brexit has made by a WTO No Deal Brexit more likely.
Secondly, the significant advantages of a WTO No Deal Brexit over May’s Deal must not be overlooked, although Geoffrey Cox’s failure to secure a meaningful alteration to the backstop so far will be seen as the central reason for the Government’s likely defeat in Parliament on Tuesday. We should remember the backstop – absolutely unacceptable though it is – was never the only problem with the deal, as Get Britain Out has documented in full here.
As Sir John Redwood has recently made clear in an open letter to Geoffrey Cox, the proposed ‘transition’ period of up to 45 months marked out in the Withdrawal Agreement would turn Britain into a rule-taker with no power of reply.
This would be a fundamental challenge to Britain’s independence. The wide-ranging nature of this threat encompasses everything from business regulations and trading relationships to taxation. Moreover, the UK taxpayer would be paying at least £39 billion for the privilege.
On the other hand, a WTO No Deal Brexit would save Britain from this unnecessary expenditure, which could be better spent on domestic priorities. This Brexit dividend would also include the money saved following the immediate cessation of budget contributions to the EU. Under May’s deal these would continue.
Provided Cox was successful in his renegotiation of the backstop, leading eurosceptics were prepared to accept May’s deal. Rees-Mogg was prepared to back it because if the backstop became time-limited, and Britain could unilaterally leave the EU if no trade deal was struck during the transition, then all the above problems with May’s deal would be time-limited too.
A spirit of compromise was in the air. A willingness not to make the best the enemy of the good. Now a legal change to the backstop seems impossible – and tomorrow, barring some cosmetic alterations – exactly the same deal which was rejected by an historic 230 votes in January will, in all likelihood, be put to Parliament again.
Eurosceptics must not make a very bad deal the enemy of the best deal now available. Let’s Get Britain Out with a WTO No Deal Brexit on 29th March.
The post A WTO No Deal Brexit is now the only way to honour the referendum result appeared first on BrexitCentral.
There is a strand of thinking right now that Brexiteers should plump for May’s Deal regardless of whatever escape clause paperwork might yet come back in Geoffrey Cox’s suitcase. The premise carries a fundamental flaw.
Let’s leave to one side the range of problems that are left in the Withdrawal Agreement even if the Irish/Northern Irish backstop is fixed. The infamous £39 billion. The surrender of assets, except the stuff that’s radioactive. The complete loss of control over fisheries management, risking the prospect of a ‘final clear out sale’. The locking of the UK into the ECHR, despite previous Conservative pledges to develop human rights law domestically (as Australia, New Zealand, and Canada somehow manage to do).
Or for that matter, the worrying issue of the ‘Rioters’ Clause’, Article 18 of the backstop. This trip wire allows the Commission to suspend any part of the deal where the UK or Northern Ireland gain a competitive advantage. It also operates as the one area where the UK could unilaterally pull out of the backstop, but only if there is mass civil unrest – a fate which the clause itself correspondingly increases over time. Alarmingly, it remains off the general radar.
Let’s assume that we have resolved to abandon these issues and others beside, write them off and put faith in what may prove to be a legal post-it. What then? I would suggest we ought to pay more thought right now to the prospects of delivery. Without this, going for a WTO plus bilaterals, including the Contingency Measures that the Commission and individual member states have already signed up to, would make more sense.
At some point the UK will seek to move away from the backstop. The objective will be to seek a fresh trading arrangement, one that accommodates the EU’s genuine need to ensure that products enter the EU market that are compliant with EU rules – and, it should be added though it rarely is, applies conversely as well in the interests of the UK consumer. Let’s not forget after all that tasty Findus horse lasagne. But the incentive will be for the negotiators to deliver something convenient and easy, closer to the model of a customs and regulatory union applied to all of the UK rather than just to those exporting.
Frankly, the events of the last couple of years should demonstrate that Brexiteers cannot afford to put blind faith in their negotiators, current or potential. Even if the backstop is magically delivered, the delivery of a meaningful Brexit itself remains at high risk. One is left reflecting on whether, had the UK model and approach been copied in Riga and Tallinn in 1991, the Baltic States would today still be part of Russia.
It would be grossly unjust to sweepingly place everyone in the civil service on the same charge sheet. There are many inspiring, professional, bright, competent and visionary people amongst its ranks. But the toll of forty years of membership of the EU system has, inevitably, had an impact on the general systemic psychology of Whitehall. George Eustice’s resignation letter contained a notable statement that DEFRA “more than any other government department, has embraced the opportunities posed by our exit from the EU.” My own experience over the years has shown very mixed levels of open-mindedness towards EU matters across departments, with officials dealing with Fisheries indeed proving rather more keen to address core treaty failings than counterparts for instance in the Foreign Office (no doubt because they were the ones always left holding the wrong end of the policy toilet brush).
Caveats noted, one cannot though ignore the issue of core affiliation amongst top management. Tony Connelly, in his book Brexit and Ireland, recalled the first conflab of the leading civil servants of both countries after the referendum; “‘It’s fair to say that on the other side, most of the people in the room wouldn’t have been happy with the [Brexit] situation,’ recalls one Irish secretary general. ‘So there was a degree of remorse and regret on their side, and equally on our side.’” I can well believe it: I have a letter beside me from as far back as 1998, from an official in the European Union Department of the FCO stating that “we should not ignore or deny the benefits which the European Union brings and which are too often downplayed.”
The same discussion with the Irish “involved a lot of talk” about the UK potentially wanting to stay in the Customs Union. The detail should also alert us to the wider and perennial risk of what happens with civil servants left devoid of clear direction or firm grip: the prospect of dropping policy on ministers’ laps if they don’t work it out themselves. And sometimes even if they do: I recall one former minister at the Home Office telling of a particular policy that he had been presented with, which on asking around with predecessors turned out to be something they had binned but which mandarins had pushed quietly, and repeatedly, back on the agenda for their successors.
We might also consider the proven back history to policy drift involving two of the four negotiating pillars in play, on Justice and Home Affairs and on Defence. The ratio of the Danes using their opt outs in JHA compared to us runs to around 17:1, and they have even walked away from Europol while still EU members. By contrast, when the ECJ was given direct competence over JHA matters under the Stockholm Process, the UK Government signed straight back up to a third of the agreements despite open and vocal backbench Conservative opposition. Meanwhile, as Veterans for Britain has documented, MoD policy towards signing up to, signing off, or sidling away from EU Defence initiatives can only be described as haphazard and, one suspects, dependent on which minister is in the chair on the day. None of this bodes well for guaranteeing a robust and truly intergovernmental form of end deal.
I do not wish to exaggerate the extent to which our form of government is run as a Technocratic Synarchy; a number of political diaries over the years suggest this is determined by the character and resolution of a given minister. What this ought to alert us to, however, is the risk arising from running a process of negotiation around a Political Declaration that remains as ill-defined as Mr Messy, and which senior Commission negotiator Stefaan De Rynck recently acknowledged could deliver an end set of terms that ranged anywhere from an FTA to a combo Customs Union and Regulatory Union.
If one does accept the Transitional Agreement as the route, delivering a final deal that honours the Brexit vote will depend entirely on the quality of leadership and management operating within the Cabinet Office, and even then it runs at very great risk, because of the nature of the task that is being undertaken. One is taken back to the Westwell Report, that reflected upon the limits of the civil service in Margaret Thatcher’s day;
“The Civil Service is a much more formidable obstacle to national recovery than the trades unions. It is difficult for 90 Ministers and a handful of advisers to shape history, in the face of three or four thousand senior civil servants who see it as their job to defend the status quo”
Or again to Norman Straus’s Number 10 Policy Unit paper back in 1981, reflecting on the formation of the top echelons;
“Their lifetime in the Civil Service, and the qualities of obedience, caution, don’t make trouble, observe precedent, which got them to the top are the definitive disqualifications for being able to reform the systems and handle a period of turbulent national change.”
This is before we even get into the matter of delivering clearly enunciated policy that has been unanimously agreed. For an example, I invite you to reflect on the perfectly obscure yet enlightening example set out in Appendix L of the third volume of Churchill’s war memoirs. This relates over a couple of pages how an instruction reached at Cabinet level simply to deliver two tanks to Egypt went badly awry owing to a train of administrative circumstances, including a deceased brigadier, a dinner conversation, a distracted NCO, and an absence of grease. Churchill excuses the anecdote by saying, “I print these details to show how difficult it is to get things done even with much power, realised need, and willing helpers.”
No doubt due and wider balance will be restored across Whitehall simply with the passage of time, the advantage of hindsight, and the operation of fresh recruiting, training and promotions, though it will take some years to percolate into the cadre levitating into the Lords. But for the moment, our current administrative climate is not the best environment to be blindly entrusting people with delivering on referendum pledges. How much more so when you have a poorly-silhouetted exit door, and you aren’t even yet sure the key fits?
What follows is an open letter from the authors to Theresa May…
Dear Prime Minister,
We understand the future of Northern Ireland weighed heavily in your decision to agree an Irish backstop in the draft Withdrawal Agreement and remains a factor in your continuing support for the backstop, albeit now on a temporary basis. Your concerns are said to include maintaining a peace widely seen as fragile, sustaining the Union and protecting jobs.
We fully agree, of course, that peace is vital. Your undertaking on no new infrastructure on the border in Ireland is wise. No-one wants the police or others to come under attack erecting, repairing or maintaining barriers, cameras or anything else. Expert opinion given to the Northern Ireland Select Committee suggests that infrastructure is no longer needed since modern electronic procedures can do the job, so we hope that this is not an issue.
On your trips to Northern Ireland some will have told you in all sincerity of a more general danger to peace from disaffected Republicans. However, in the over-heated context of Brexit many arguments are self-serving and cannot always be taken at face value. Sinn Fein themselves say there will be no return to violence. Indeed, sacrificing their hard-won electoral position in the Republic of Ireland would be an illogical thing for them to do.
Gerry Adams also asserts that dissident Republicans have negligible support in the Nationalist community. A few dozen dissidents may always be capable of criminal activity as the recent Londonderry car bomb showed, but the security services have managed the dangers with admirable skill and will no doubt continue to do so.
Nor is there much evidence that Brexit puts the union in any real danger either from Nationalist disaffection or because Protestants would prefer Irish unity in order to remain within the EU. Reliable evidence shows little rise in support for Irish unity following the 2016 referendum. While some polls have indicated support for Irish unity in the high forties per cent range, more reliable polls have it down closer to the traditional 20%.
Polls showing higher support for Irish unity use samples drawn from voluntary panels and these seem to biased away from working class people and especially from the Unionist working classes. The gold-standard polls are undertaken for the Life and Times Survey funded by the UK’s Economic and Social Research Council using face-to-face interviews.
The latest LIFT survey from 2018 showed that support from both communities for Irish unity was around 20% and only a little above pre-referendum levels. Support for Irish unity among self-described Protestants remains minuscule and of course the DUP made major gains at the 2017 General Election in reaction to claims that Brexit meant growing support for Irish unity. Even among Catholics, Brexit has not led a majority to support Irish unity. Sinn Fein’s calls for a
border poll have become Augustinian – a border poll yes, but not yet.
The correlation between Catholicism and support for unity is weaker than many assume. The 2011 census showed that only half of Northern Ireland’s Catholics identified as ‘Irish’ and fewer than half had an Irish passport. The Life and Times Survey shows that even in 2017/18 the proportion of Catholics who support eventual Irish unity is 41%. Only 7% express a desire for immediate unity.
Professor John Fitzgerald of ESRI in Dublin has recently calculated that living standards are 25% higher in Northern Ireland compared to the South. Although wages are generally higher in the South, higher taxes and fees and inferior levels of public service provision mean that northerners do better even before we take cheaper housing into account.
Some argue that the rising share of Catholics in the Northern Ireland population will continue, leading to a majority in a few decades. There is no evidence for this. The 2011 Census clearly shows that the percentage of the population who described themselves as Catholic had peaked among those born almost two decades ago and has subsequently slowly declined. Since Catholic birth rates are now close to those of Protestants, it seems likely the trend will continue.
Migration is also important and here there is major new factor. One in twenty of Northern Ireland’s Catholics are now from Poland, Lithuania, Portugal and the Philippines. The future constitutional preference of these immigrants and their children is hard to predict but it would be wrong to expect them to support Irish unity.
Nor do we believe that jobs are greatly at risk in Northern Ireland. Studies which purport to show economic damage from No Deal are self-contradictory and fail to take into account obvious opportunities. The main challenge would face the dairy industry, but the large potential loss of markets in Great Britain by southern food producers in the event of No Deal would open substantial opportunities for Northern Ireland’s farmers to fill the gap in Great Britain.
All in all, we believe the dangers facing Northern Ireland are much smaller than you may have been led to believe. You face difficult decisions on the UK’s future outside the EU. We do not believe that these decisions should be dominated by groundless fears about Northern Ireland.
Rt Hon Lord Trimble
Kate Hoey MP
The post Don’t believe claims that Brexit threatens the peace in Northern Ireland appeared first on BrexitCentral.
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