Henry Newman is Director of Open Europe.
By delaying the vote on the Brexit Deal, the Prime Minister has reverted to her favourite political tactic – kicking the can down the road. Her advisers feared that if the vote had been held today, the size of the defeat would have sunk her entire prime ministership. But at some point the music will have to be faced. There are already, according to ConservativeHome’s tally, over 70 Conservative MPs opposed to her deal. So, before the vote is re-introduced, the Government will need to secure meaningful changes. But how? And in delaying the vote, the Prime Minister has herself called into question her own confidence in her Government’s ability to deliver her flagship policy. She has put a big question mark right over her own authority.
Re-opening the deal won’t be easy. The EU are sticking to the line that it’s been agreed and is locked down. Senior figures insist that they won’t consider changes to the Withdrawal Agreement. But without some substantive changes it’s pretty impossible to see any route that will lead to Parliament agreeing to ratification. Equally, if the deal is re-opened, European states will try to press the UK further on fish and so-called level playing field issues, as Stephen Barclay warned on Sunday. Of course, if the French did insist on pressing further on, say, fish that would only make it harder for the Prime Minister to get her deal through the Commons.
It’s far from clear that any deliverable changes could actually secure the support of some of the Prime Minister’s toughest critics. The criticisms of her deal are – for some – as much an expression of lack of confidence in her leadership, as about any specific policy concern. Unfortunately, Theresa May is not a brilliant advocate at the best of times. Now, when she is up against a wall of noise and a widespread sense of betrayal, she is struggling to be heard.
There are of course substantial problems with the Prime Minister’s deal, particularly regarding the backstop and our (lack of an) ability to exit it. But the shape of this deal was set months and months ago. And – contra the view of many – it has little to do with the Government’s Chequers Plan. After May lost her majority in June 2017, David Davis accepted the EU’s sequencing of the negotiations, ensuring that the Irish border question and the financial settlement had to be resolved before discussing the future. Later, the Cabinet accepted a backstop as the price for the EU agreeing a transition period. Rather than defining what the text of that December 2017 agreement actually meant – and therefore what the backstop would entail – the Government said nothing for months. The Commission were left to define how the backstop would work, all on their terms.
Critics and supporters of the Brexit deal alike are misrepresenting it, as this Reality Check from Open Europe explains. The Prime Minister reassures no one when she conflates different elements – mixing up the backstop and future relationship when describing the deal. She claims we will have an independent trade policy, but there’s a crucial caveat which she too often neglects: we can have an independent trade policy when the UK leaves the backstop. Equally, she insists with her deal that she’s taken back control of our money, our borders and our laws. Yet it would be more truthful to admit that in the backstop she would have achieved two of her three aims fully, and gone a long way to reaching the third (by limiting but not eliminating the direct jurisdiction of the European Court).
The Prime Minister’s critics come from both sides of the Brexit divide, but are united in opposition to the backstop.
On the one hand, some such as Jo Johnson and Sam Gyimah are opposing the deal to try to force a second referendum. Others such as George Freeman prefer a softer exit – a Norway Plus model.
At the opposite end of the scale, hardline Brexiteers are making various demands some of which are more deliverable than others. On Sunday, Boris Johnson called for the UK to “delay the payment of at least half the £39 billion [so-called Brexit bill] until they’ve done a free trade deal by the end of 2020”. In fact it’s already the case that under the current plan less than half the bill is due before 2021. He also insisted that “we can have a withdrawal agreement that does not contain the backstop”. Unfortunately, I’m yet to speak to a single EU figure who thinks the UK could have a withdrawal agreement without a backstop.
On the other side of the Commons, Labour’s Brexit policy is a shambles. Labour reject the backstop, complaining it could last indefinitely but seek to replace it with an indefinite customs union (albeit with a say over trade deals which isn’t on offer now). They claim that their customs union policy would resolve the Northern Ireland issue, yet it would do nothing to resolve regulatory questions. Labour reject a Norwegian solution but instead support “a strong Single Market deal” – whatever that is.
At the end of the week, there’s yet another European summit where the Prime Minister will face European leaders weary of the Brexit wrangling. From rows over Italy’s budget and Poland’s judiciary, to the crisis in France with the gilets jaunes, Brexit is far from the only show in town. But the assembled leaders should recognise that May is serious in trying to reach a negotiated deal that has a chance of passing Parliament. And that without further changes to the Withdrawal Agreement, there’s a serious risk of a disorderly no deal.
She should level with the European Council and offer them two broad options. Either give up on improving the deal, in which case they need to recognise that it will likely not pass the Commons. Or, seek to make limited but substantive changes to help it on its way through. If it’s to be No Deal, then the leaders should agree to authorise discrete side agreements (on matters such as aviation, citizens rights and so on). That way they can mitigate a chaotic No Deal.
But it would be ironic indeed if the deal failed to pass the Commons because of a backstop designed to protect the Irish border, thus leading to No Deal, putting at risk the Irish border. So it would be better for the EU to look at what changes can be made in a combination of international agreements, legal instruments and public commitments, to work in concert with domestic legislation in the UK.
First, the negotiations need to define a clear role for the Stormont institutions in the backstop. Second, they need to rule out a situation where an internal customs border could be imposed on Northern Ireland, either by the EU or by the UK replacing the backstop with a Northern Ireland-only customs union. And finally, and most problematically, by looking again at the exit mechanisms from the backstop.
None of this will be easy, particularly when it comes to the exit mechanism. But the European Commission already privately acknowledges that the backstop cannot endure for the long-term. They also say it is weatherproof but not tsunami-proof. It’s time to make clear what is already obvious – that the backstop must be legally operable, but that it cannot be a permanent trap which a political earthquake could not ultimately sweep away.