As the potential Brexit crash-out date of April 12 approaches, UK politicians are making a good show of trying to avoid it. Yet the lack of understanding of the basics of what it means to be in the European Union means the process bears an awfully strong resemblance to classic comedy scenes of workers in a factory desperately turning off and on switches to shut down a process, a mechanized version of The Sorcerer’s Apprentice. And in those episodes, the remediation efforts inevitably make things worse.
Maybe the UK will be luckier. But the signs so far are not promising.
One is that even though the EU has given the UK a deadline of April 10 for presenting any “way forward” that would justify a long extension, Parliament hasn’t gone into a weekend session. As Richard Smith noted, “Looks as if the Tory Party’s decided the best thing to do with the weekend is not to think about indicative votes, but to jack up the internal strife levels a few notches instead”:
Dominic Grieve is a not just a fine MP, he's a national treasure. If it wasn't for him, the meaningful vote process wouldn't be happening at all. He is a tireless campaigner for pragmatism, reason, and scrutiny of power. https://t.co/WoqrOInmnA
— Ian Dunt (@IanDunt) March 30, 2019
MPs are still chasing their tails, even if they don’t recognize that. The current plan, according to the Financial Times, is to hold another set of indicative votes on Monday, and if no winner emerges then, another set on Wednesday. Assuming Parliament finally settles on something, the House then plans to pass legislation on Thursday. Theresa May has made it clear that she may not agree with what Parliament cooks up, hence the perceived need to force her to carry their message.
That timing seems optimistic, particularly when you factor in how clueless the officialdom continues to be about the options they are debating. Guurst sent this along:
Two YEARS to get the hang of this. And still not? 😢😢😢 https://t.co/7tpSV1sBLK
— Peter Foster (@pmdfoster) March 31, 2019
As troubling is the incomprehension about the idea that having the UK stay in a customs union with the EU is tantamount to a softer Brexit than Theresa May’s unpopular Withdrawal Agreement. You can see how ITV’s Robert Peston does not begin to grasp that his sources have this backwards. From a story on Sunday:
Some allies of the prime minister are desperate for a majority of MPs to back Ken Clarke’s motion to keep the UK in the customs union….
To be clear, these are not ministers and officials who themselves are keen for the UK to agree a deal with the EU that would remove the requirement for customs checks to be reintroduced after Brexit…
But they hope if it becomes the revealed will of the Commons to negotiate that kind of so-called soft Brexit – one which would keep the UK under the jurisdiction of the European Court of Justice, and would prohibit the negotiation of trade deals with non-EU countries – that would be the perfect platform for the prime minister to put her own Brexit deal back to the Commons for a record-breaking fourth time – on Tuesday.
Recall that the motion last week calling for a customs union failed by the smallest margin, a mere eight votes, so there’s good reason to think it will win approval this week. But as Richard North explained at considerable length over a series of posts, a customs union does not, as Peston incorrectly states, end the need for “customs checks” (also an imprecise term). A customs union is a trading area subject to common tariffs, so no duties are collected when goods move across borders. But a customs union does not provide for common regulations and legal oversight. Turkey and the EU are in a customs union, and they have a hard border. As North tartly observed today:
….when we have a substantial number of MPs prepared to vote solely for a customs union as a solution to the UK’s post-Brexit needs, we are clearly not dealing with the sharpest knives in the draw.
Putting it somewhat more bluntly, you are struggling to match the IQ of an amoeba if you believe that a customs union is an answer to Brexit – into which category, it appears, hundreds of Labour MPs fall. It also makes you wonder what game Kenneth Clarke [the sponsor of the customs union motion] is playing…
That said, even at this very late stage it is remarkable how riddled with confusion the debate remains. For example, amongst some of the propositions made (not all of which were called) for the indicative votes were ideas that are simply unworkable.
These included Nicky Morgan’s ‘Malthouse’ proposition (which was not selected to be voted on) and Marcus Fysh’s ‘Malthouse Plan B’ or ‘managed no-deal’ proposition, which was selected and garnered 139 votes. There’s not much point discussing what these proposals consisted of as it seems unlikely they will be revived (but see this previous post on ‘Malthouse’ for what is wrong with it). Of particular note is that the European Commission statement after Friday’s vote explicitly ruled out any transition period or sectoral deals if the WA is not passed. In other words, managed no-deal is, as it has always been, a dead duck.
Even some of those amendments which fared better were based on ideas with severe practical problems. The Labour proposal remains stuck in the meaningless pre-referendum nostrum of what Corbyn calls single market “access” (although the actual wording in this proposition was “close alignment”). It is an expression which should be expunged from the Brexit lexicon and has done untold damage all along by refusing to face the binary choice of membership or non-membership of the single market. It is worse than shameful that the official opposition should still be dissembling about this.
The Clarke proposal for a customs union (only) is coherent, and got more support (265) than Labour’s (237) but wouldn’t resolve the Irish border issue, and would not obviate the need for the backstop provision in the WA. The Boles ‘Common Market 2.0’ or ‘Norway+’ proposition is also potentially coherent, and would resolve the border, but attracted surprisingly little (189) support, though some expect it now to gain ground and it is at least conceivable that it will become Labour’s official position.
Because the Brexit debate in Parliament is hopelessly confused, I will spare you Richard North’s analysis as to why the current “Norway” plans are unworkable. My assumption is they won’t survive the week. If I am proven wrong, we can look at them in more detail.
But back to the “customs union” notion. Per Peston, it appears that many MPs see it as a “softer” Brexit than May’s Withdrawal Agreement. This is hair-raising. First, it strongly suggests that support for this option would plunge if it were adequately defined, that it means different things to different MPs. Second, a softer Brexit than May’s would have all of the features of May’s Withdrawal Agreement that the country found so objectionable. Specifically, it means accepting something very much like the backstop, or having all of the UK subject to EU rules and regulatory jurisdiction so as to remain in the internal market….which begs the question of why Brexit at all?
But that does get us back to the point raised by Peston’s Conservative sources: if Parliament approves of a customs union, thinking in its confusion that that is tantamount to a softer Brexit, May’s allies hope they can get her deal pushed over the line by making them even more misinformed than they are now, by persuading them that a “customs union” Brexit is no Brexit at all. Again from Peston, who sadly doesn’t understand how bass-ackwards this is:
The PM and her advisers (or at least some of them) assume, not unreasonably, that perhaps another 15 Tory Brexiter MPs could be scared into voting for the EU Withdrawal Agreement if they could see that the conspicuous alternative would be a customs-union-based Brexit-in-name-only.
If only 15 Labour MPs could be converted into supporters too, her deal would scrape though at this spectacularly late juncture – and that might happen if the PM were to write into the body of her latest meaningful-vote motion the essence of the amendment laid last week by the Labour MPs Gareth Snell and Lisa Nandy.
I am reliably told the PM will incorporate the Snell/Nandy plan, which would empower MPs to shape negotiations on the future relationship with the EU, partly because she needs Labour votes and also because the Speaker will only sanction a motion from May that is substantially different from previous ones.
To drive home the point about the utter incomprehension of what “customs union” means, let us return to what trade expert Richard North said about the Clarke “customs union” motion on March 29:
But there is no possible way that a customs union in any shape or form could satisfy the UK’s trading needs or form the basis of a relationship with the EU. Anyone with the remotest idea of the history of the EU, and the progression from the customs union to the Single Market, will understand this to be the case. Even with the EU’s customs union fully in place, by the early 1980s there were still delays averaging 80 minutes for lorries at the EEC’s internal borders….
Given then that a customs union is an irrelevance, the focus needs to be on the Single Market – already rejected by MPs in the two forms offered. But, as we already know, the Single Market is not enough. Tying in CM 2.0 to the Clarke proposition would not provide a solution to our needs. Even if it was fully adopted, it would not give us frictionless trade and nor would it remove the need for controls on the Irish border.
May is still plotting to get Meaningful Vote 4. Above, we hoisted from Peston what May’s allies seem to think is an opening for her to get her Withdrawal Agreement approved. The flip side is that what she’s been doing more visibly looks screechy and desperate. At this stage, that may not matter, but in general, visible signs of weakness aren’t helpful in trying to muster support.
The biggest “Huh?” is the threat of a general election. From the Financial Times last Friday:
Downing Street officials said Mrs May could even call a general election to break the impasse at Westminster, after MPs voted by 344 to 286 to reject her withdrawal treaty on the day Britain was originally scheduled to leave the EU.
Under the Fixed Term Parliament Act, the Prime Minister can no longer ask to dissolve Parliament under the royal prerogative. The triggering events are either losing a vote of no confidence or via a 2/3 vote in the House.
Even though the Tories are no doubt still unhappy with May, it is inconceivable that they’d risk triggering a no deal Brexit via voting to turf her out now. On top of that, Labour is ahead in the polls (hat tip TYJ), making “because Corbyn” an even bigger reason to stand pat than before. Similarly, the DUP would risk losing its powerful role as an essential coalition partner, and hence is very unlikely to vote against the Government.
May is also making a strained interpretation of the EU’s position to contend that the UK must approve the Withdrawal Agreement. Let me again quote Richard North. Mind you, I suspect he is interpreting what May means correctly:
Tucked into the prime minister’s response to the [third] vote [against the Withdrawal Agreement was a powerful little landmine. The European Union, Mrs May said, has been clear that any further extension will need to have a clear purpose and will need to be agreed unanimously by the Heads of State of the other 27 Member States ahead of 12 April.
This will almost certainly involve the United Kingdom holding European parliamentary elections, she added, then placing the explosive device. “On Monday this House will continue the process to see whether there is a stable majority for a particular alternative version of our future relationship with the EU”, she said, noting that: “Of course, all the options will require the Withdrawal Agreement”.
And there it is. The House can debate and vote on as many motions as takes its fancy on Monday, but anything which sets out the terms for our future relationship will have to be accompanied by a proposal for delivering the Withdrawal Agreement. And that is something parliament has thrice refused to do.
This appears every bit as made up as May’s claim that she can call a general election. Yes, May is correct to indicate that the EU will want to be satisfied on certain matters before it grants another extension,. Those are highly likely to include the points it has repeatedly insisted were necessary for the UK to present in seeking an extension: to give a reason why, and to explain how it proposed to arrive at a different sort of Brexit, since the one it has worked on before proved to be a non-starter.
But the idea that the EU would only accept a different path to the Withdrawal Agreement seems nonsensical. Why would the EU set a cut-off date for approval of the Withdrawal Agreement for March 29, but allow a different date as the deadline for the UK to seek a longer extension?
If the UK manages to get out of its own underwear and seek an extension at the April 10 EU Council meeting, the EU will no doubt want the UK to explain how it will get to a Withdrawal Agreement. But that presumably means a new Withdrawal Agreement, not the repeatedly rejected Withdrawal Agreement.
Or does it, since May may not play ball with Parliament? What if North is correct about what May means? Recall that she told Parliament last week that she wasn’t presenting any unicorns to the EU. What if she genuinely believes that the EU will accept only the, as in her, Withdrawal Agreement, and not a path to a new one?
North argues that Parliament can’t compel the Prime Minister to act on treaty matters (I very much look forward to getting the commentariat’s reading on this idea). From his April 1 post:
With only relatively minor exceptions, the initiation of international agreements (treaties) is subject to Crown prerogative, and is not something that MPs can order. After the Miller judgement, parliament can under certain circumstances withhold approval for some actions, such as giving notice under Article 50, but it cannot instruct the government to enter into international negotiations, much less direct the course of those negotiations.
If this reading is correct, or at least arguable, this implies May could (as she warned she might earlier) ignore Parliament. I’ve quoted her before but it bears repeating:
So I cannot commit the Government to delivering the outcome of any votes held by this House….
Unless this House agrees to it, No Deal will not happen.
No Brexit must not happen.
And a slow Brexit which extends Article 50 beyond 22nd May, forces the British people to take part in European Elections and gives up control of any of our borders, laws, money or trade is not a Brexit that will bring the British people together.
This is May’s Impossibility Theorem. The only thing that is possible is her deal….but not if Parliament keeps saying “no”. I am waiting for her to say that not saying yes to her deal means No Deal.
But more immediately, May has thrown down the gauntlet and said she won’t necessarily act as Parliament’s water carrier. And if she has plausible legal grounds for operating independently, what pray tell is Parliament’s recourse if May goes off their script at an EU Council meeting on April 10?
What about the Irish border? One claim often made is that the EU would blink and prevent a crash-out because it would result in a hard border in Ireland, which would hit the Republic very hard.
Tony Connelly at RTE reported over the weekend (hat tip PlutoniumKun; featured in Links yesterday) that intense preparations are underway, but they are being kept as secret as possible so as to avoid influencing the debate in London. Even though “muddle through” is not how Eurocrats like to operate, it sounds as if they recognize that’s the best they can do. Key sections from an important story:
A working group of officials from the Commission’s powerful Competition division and officials from the Department of Business, Enterprise and Innovation have since the end of January been exploring the extent to which Dublin can push state aid rules to the limit to mitigate the costs of managing checks.
The Commission’s customs arm has been exploring how Ireland will meet the need to levy duty on goods coming in from Northern Ireland without having a hard border. There have been daily contacts between agriculture Commissioner Phil Hogan’s team and the Department of Agriculture, as well as contacts from the food safety division of the EU, DG SANTE….
Before getting into the detail of how checks might be applied, a number of principles are worth bearing in mind.
Senior officials say that if there is a hard Brexit on 12 April, it will be impossible both logistically and politically to bring the full gamit of EU internal market and customs union rules to bear in Ireland the next morning.
This will be a managed process driven on the one hand by politics – ie, the promise to avoid a hard border; and on the other hand by risk – ie, how far the EU is prepared to bend the rules to abide by that promise without fundamentally compromising the safety of EU consumers….
However, that will not mean the EU turning a blind eye, or tolerating a wild west situation. There are countries on the periphery of the EU who will be watching with interest as to what happens on the Irish border.
“The precedent value or risk of anything like this is not to be underestimated,” says the official. “The EU is an institution of rules, so precedents are something that have to be weighed up carefully.”
The second principle is that so long as the politics of Westminster are live, nothing will be decided that might leach into that debate….
A third principle is that while Ireland will be determined, indeed legally obliged, to uphold EU rules, they will be applied incrementally.
Officials have not discounted a scheduling sequence where rules are phased in over time…
A fourth principle is that data and risk will play a major role.
In other words, Dublin and Brussels will use data to build up a comprehensive picture of what crosses the border, who are the large operators, who are the small ones, what are they transporting, where is it coming from, and where is it going to.
That data will determine what the likely risk is, and that risk will determine what the likely controls are.
And in the interest of keeping this post to a meaningful length, I’ve had to skip over the big question looming behind the Parliamentary jousting: they don’t even seem to have found out what goal they need to meet. What is the EU’s bar for indicating “a way forward”? Despite all the trashing, MPs are stumbling in the dark and don’t even recognize it. It reminds me of the line from a Janis Ian song:
They’ll tell you that the darkness is a blessing in disguise
For you never have to notice if you’re sighted or you’re blind.
And they’ll do their best to keep you from the light.
Sadly, that has been true for the UK as a whole, and not just the political classes.