When we last wrote about Theresa May’s deal, we urged the postponement of a vote on it. This was because MPs had been given less than a day to study a mass of new texts: a joint instrument, a unilateral declaration, a supplement to the framework for the future relationship and a new statement on the agreement as a whole. We said that the Government would do better to postpone the second “meaningful vote”, and give the Commons time to study the documents, because trying to bounce it was bound to cause a backlash. So it proved. May lost her vote by a whopping margin of 149.
That was a fortnight ago. So now that MPs have had a chance to read the texts, what should they do when a third meaningful vote comes – as it could soon? Do those documents make any difference to the deal?
In some respects, we can’t help regretting the advice we gave – because that last question is almost impossible to answer definitively. Get an opinion from a lawyer and you can always find another. Enter, from one wing, Messrs Cash, Howe and Raab of the European Research Group. They advise, for example, that the European Court of Justice could rule on the so-called “good faith” obligation. Enter, from another, Richard Ekins, Stephen Laws and Guglielmo Verdirame of Policy Exchange. They counsel, by contrast, that it could not.
Cash and company will raise you “Whaling in the Antarctic (Australia v. Japan)”. Ekins and friends will trump that with “the Gabcikovo-Nagymaros Project (Hungary v. Slovakia)”, or try to. Neither side agree about the Vienna Convention of the Law of Treaties. Before you know where you are, you are lost in a pullulating forest of legal jabberwocky – “good faith”, “best endeavours”, “mutual respect”, “all appropriate measures”. Instead of tiptoeing into it, you might as well have a whirl at something easier – such as ConservativeHome’s new game: backstop bingo. Arbitration panel – load of flannel! Not worth a mention – Vienna Convention! There is a temptation to end up believing whatever you want to believe.
Now to say that a question is very hard to answer isn’t to say that it isn’t worth asking. On balance, Anthony Speaight, together with the Policy Exchange academics, makes a plausible case for suggesting Northern Ireland would not be locked permanently into the Single Market and Customs Union after the agreement of the joint instrument. Considered as a whole, the documents seem to suggest some movement. If you don’t trust lawyers’ pleas, watch politicians’ body language. The Irish Government is very twitchy about the unilateral declaration.
For all that, it strains belief to imagine that dispute about the backstop will be settled in a court of law – with bewigged figures trading obscure terminology for huge fees. No: it will be decided by the same rough business that has shaped the Brexit negotiations to date: politics. Where does that leave MPs as a third meaningful vote looms tantalisingly into view?
The first point to make is that one cannot rule out a No Deal outcome. The Prime Minister made that point this week (while contradicting herself in the process). The EU could simply decide that there is no agreement on April 12, assuming that Parliament hasn’t approved the deal by then. This is already the endpoint that Emmanuel Macron seems to want. But pro-Leave MPs cannot trust to the French President saving Brexit. Angela Merkel wants a deal. So does Leo Varadkar, who is gambling on one, since No Deal would pulverise Irish farming. Sensitivity to the interests of its smaller members has been a mark of the EU side of the negotiation to date.
Some Leavers previously argued, rather in the manner of the eBible Fellowship predicting the end of the world, that Brexit cannot be stopped and will happen on Friday. That judgement call doesn’t look very sound this morning. Maybe we will leave the EU this week. But as we write, that looks marginally less likely, if anything, than the end of the world. Eurosceptics would be badly advised to trust in either coming on April 12.
What will happen instead? The likelihood is boiling down to May’s deal or Letwin’s deal, as we call it. We can’t say much about the former that we haven’t said before. It has its good points and its bad ones, mainly the backstop. The latter threatens either to trap the country in the Customs Union, thus wrecking the prospect of meaningful trade deals worldwide; or else allow the rest of the United Kingdom to leave it but compel Northern Ireland to remain it it, which has knock-on implications for Scotland and “our precious Union”.
We believe that Brexit is more like a film than a photo – that’s to say, where one is on day one isn’t where one will be in year five. Leaving the EU is a process, not an event. The core problem with the backstop is that it freezes that film into Groundhog Day, thus obviating gains that the deal offers elsewhere – such as May’s wins on money and borders, and her fighting the EU to a standstill over laws. The new legal documents, like love in the film, may offer a backstop escape. Or they may not. And doubtless there are nasties in the small print of the agreement that few have yet fastened on.
Letwin’s deal is May’s plus whatever the Commons slaps on top – formal Customs Union membership; Single Market membership too, perhaps. To remain in both would deliver Brexit de jure but not de facto. And such an outcome would leave little to negotiate in trade talks. We would have settled for high alignment and free movement. There would be little left to haggle about other than food and fish. For those who believe in Brexit, a Letwin deal is undoubtedly worse than May’s deal. This is the logic that Jacob Rees-Mogg recognised in our Moggcast yesterday.
It may be that Parliament can’t settle on either version. In which case we will, most likely, enter a long extension. A few Brexiteers actually want one. They think that it would give time to depose May, replace her with Boris Johnson or Dominic Raab, turn the ship round – and deliver SuperCanada. But the natural majority in the Commons is for a form of Norway, not one of Canada. One would need a new House to deliver it. That would mean a general election. Is it really likely that this would produce a pro-SuperCanada Commons? Might it not deliver a Marxist Government instead?
Indeed, a long extension, and a Commons unable to settle on any particular proposal, risks a second referendum. MPs, unable to agree what to do with the Brexit baby, would hurl it back from the Clock Tower at the voters, who have instructed them to nurse it.
We do not envy the Commons having to negotiate this maze. There is an argument for viewing a third meaningful vote as a moral question only. This site admires those MPs who have approached Brexit with conviction. The Prime Minister ought to be grateful to those who helped to sink the first meaningful vote – the Steve Bakers and Dominic Grieves, the Andrea Jenkyns’ and the Justine Greenings. For without them, she would not have gained the joint instrument and unilateral declaration in which the Government now puts such emphasis. But politics is about pragmatism as well as principle. As that proto-Eurosceptic, Rab Butler, put it, politics is the art of the possible.
That conclusion has led us to a perhaps surprising place. Our practical concern is focused on the effect of any Brexit deal on public confidence in our political system. This site is committed to leaving the EU. But there is no gain from self-government if government itself loses the trust of voters. For government of any kind is impossible without trust. Trust is the cement in legitimacy. If Brexit happens, it may turn out well – or badly. But it is indisputable that the system’s delivery of it has shaken trust in the system to its roots. Government, Opposition, Parliament, the civil service: all, to a greater or lesser degree, are implicated.
Inside Parliament, the pressure is on Conservative rebels to fold – or would be, were there still a functioning government. Some, like David Davis, have gone one way; then the other, and are weighing whether or not to reverse ferret. Others are feeling the pressure of May’s chicken game. Exhausted, battered, bewildered, almost functionless, MPs could be forgiven for wanting to lie down until Brexit goes away. It won’t. Debate on the Withdrawal Agreement is only a prelude to debate on the Political Declaration.
Outside it, the flavour is different. Voters may not understand good faith or best endeavours, meaningful votes or indicative votes, but they clock the people. They have a marvellous way of smelling a rat – of goggleboxing May’s vacillation, Jeremy Corbyn’s vacuity, Philip Hammond’s evasiveness and negativity, Mark Francois’ fixity, Michael Gove’s fluidity, Johnson’s ambition, Anna Soubry’s grandstanding, the Cabinet’s collective cowardice, the collapsed whipping, Letwin’s wise follies, John Bercow’s bias. Contrary to May’s low-grade and self-destructive statement last week, the sum of polling doesn’t suggest strong support for her deal.
Rather, voters are confused, exasperated – and wishing a plague on both Houses, Commons and Lords alike. Leaver and Remainer, No Dealer and Second Referendumer, they grasp a simple point. We were promised Brexit on March 29 over a hundred times. It isn’t happening. Confronted by the No Deal fence, May shied from it. The future is obscure. Trust is savaged. And now it turns out that we must put off Brexit Day whether or not MPs vote to do so. Britain has a marvellous history of resisting demagogues, but the failure to negotiate an orderly Brexit may have opened the door to them. The grandmother of all public inquiries is coming. And senior civil servants are running for the hills.
So as they mull this dispiriting story, how should MPs prepare to vote – assuming that the Speaker allows them to at all? May’s deal or Letwin’s deal? From the point of view of principle, there is a case for holding out against the former, though the new legal texts have dented it. From that of pragmatism, the deal of the Prime Minister in Name Only is better than that of the Prime Minister in All But Name. And from that of trust in politics? The scarifying, lacerating truth is that we are past the point where it will make a difference.