Henry Newman is Director of Open Europe.
It’s now three years and a day since the referendum was declared for Leave on the morning of 24th June 2016. And yet Brexit seems – if anything – further away than it has for some time. The Conservative leadership race will change the occupants of Downing Street, but will leave the three essential paths unchanged: Brexit with a version of the current deal, Brexit with No Deal, and no Brexit. With almost no Parliamentary majority, it’s hard at this point to see a way through to any one of those paths.
Over the next few weeks things may become clearer, unless Brexit day ends up being delayed again. A new Prime Minister will make no difference in of himself to the Parliamentary maths – although the stock of patronage in the Whips’ office may be reset. But various Conservative factions are already threatening to bring down the next government. One group would withdraw confidence if the Government pursues a No Deal Brexit; another has also threatened to do so if the Government fails to deliver Brexit on 31st October.
Opinion has polarised in Parliament and across the country. There’s little mood for compromise. The spoiled ballot paper in the final round of voting on the leadership last week was ominous. To make matters worse, the Conservatives will soon face a challenging by-election in Brecon and Radnorshire. The Tories face a simultaneous squeeze from both the Brexit Party and the Liberal Democrats.
The landing zone for a negotiated way through Brexit is slim but just discernible. At its core would be ensuring that the UK can avoid being permanently trapped in the backstop. The Alternative Arrangements Commission, chaired by Nicky Morgan and Greg Hands, and backed by Prosperity UK, is attempting to provide reassurance on that. The Commission argues that the backstop is “at the heart of the UK Parliament’s objections to the existing Withdrawal Agreement”. Of course, the only time when a majority was found for a particular Brexit scenario was Graham Brady’s vague amendment on replacing the backstop with Alternative Arrangements – the Commission is attempting to clarify what that could entail.
I have previously argued that the Withdrawal Agreement (including the backstop) is more advantageous to the UK (and to Northern Ireland) than many critics accept. I have also outlined how the backstop itself poses various problems. But we are rather beyond that sort of analysis now – Parliament has refused to support the deal as is. That’s why it’s so crucially important that the Government gets behind the work of the Commission on Alternative Arrangements.
There’s plenty of cynicism about the Interim Report and the Commission overall. And certain pundits seemed keen to dismiss all the suggestions out of hand. But, although some of the ideas are ambitious, they deserve serious consideration. Radical ideas will be needed to find a way through. Brexit poses unique problems for Northern Ireland, and it’s overwhelmingly in the interests of the UK, Ireland and the EU to find a way of resolving these issues together.
The EU has somewhat legitimately complained that the UK had not put forward proposals to resolve the Irish border. (Although, of course, the entire Chequers policy was designed to do just that). But if Brussels and Dublin reject out of hand all innovative answers to address the border, then it will be hard to persuade Brexiteers that the UK will not end up trapped in the backstop.
Back in March at Strasbourg both the UK and EU agreed to fast track the search for alternative arrangements. The EU agreed that these alternatives could apply on a provisional basis to allow the UK to avoid the backstop altogether. The Strasbourg instrument also places obligations on Brussels to find alternative arrangements. A Policy Exchange report concluded that “it would be clearly incompatible with its obligations… for the EU to adopt a negotiating stance that boils down to the position that only ‘backstop 2.0’ can replace the current backstop”. So, the EU must accept workable alternatives to the backstop and these can’t simply be the same thing packaged up with a different name.
Yesterday’s interim report by the Alternative Arrangements Commission argues that working alternatives should be up and running within three years. They note that there is no single solution to the border, and that a combination of existing technology and best practice will be needed. Importantly, the report argues that “futuristic high-tech solutions are not required”.
Several of their interim recommendations tally with arguments that Open Europe has previously made, including an expanded trusted trader scheme in Northern Ireland with exemptions for smaller businesses. The most radical proposal amounts to an option to create a common area for Sanitary and Phyto-Sanitary measures between the UK and Ireland. Irish sources have dismissed such a possibility out of hand. There are obvious problems with this sort of suggestion, but it’s also the sort of bold idea that both sides will need to consider if a way through is to be found that can provide a sustainable answer for region and meet the concerns of the UK, Ireland and the EU.
Unfortunately, trust is in short supply. That’s hardly surprising when European capitals watch British politicians promising to use Article 24 of the GATT treaty to provide for tariff free trade in the event of No Deal. Or when they hear senior figures suggesting we use a transition period to negotiate a trade deal, if we leave with No Deal. And they watch as some claim that we should “just” go back to the offer of an FTA which Donald Tusk made. (Unfortunately, Gatt 24 would only work if the EU also agrees to tango in the event of No Deal – so far they have refused; there will be no transition period without a deal; and the offer from Tusk (and indeed the EU as a whole) was always an FTA with a backstop for Northern Ireland.)
On the other hand, the EU will need to accept that the trust issue cuts both ways. The more that the Commission rubbishes alternatives to the backstop, the harder it will be to persuade people that a path out is possible. Equally, Brussels must now see that something will have to give. There is practically no chance that the exact same deal can pass the Commons, without further legally-binding changes. The EU’s preferred answer of a cross-party arrangement failed to bear fruit. And there is still little sign of a majority for a second referendum, nor indeed a clear swing in public opinion against leaving the EU.
Back in April, Tusk pompously warned the UK not to “waste” the extension to Article 50, while the Council decided to delay Brexit by the worst possible length of time – long enough to ensure that MPs felt no pressure to make decisions, but too short really to allow for a change in politics or a reset in negotiations. With Brussels out of action following European elections, and with August summer breaks looming, these months were always going to be largely fallow. When things do get back underway, there will be precious little time to get anything agreed before the first scheduled meeting of the European Council on 17th October – the biggest priority for both sides must be to rebuild trust.