Friday 25 October 2019

Brexit in limbo

I had half-expected that today I would be writing that, to all intents and purposes, Brexit was now a fait accompli and that if not on 31 October then very shortly thereafter Britain would no longer be a member of the EU.

More “unforced errors”

That may still turn out to be the case. The fact that it is not so today is in large part attributable to yet another of what the influential and insightful law and policy commentator David Allen Green has aptly described as the “unforced errors” of the Brexit saga. Specifically, it has arisen because of the Government’s ludicrous and unnecessary attempt to drastically curtail the time parliament had to discuss the Withdrawal Agreement Bill (WAB), and to do so without the provision of any economic impact assessment. The proposed timescale was, as the Director of the Hansard Society, Ruth Fox – not known for hyperbole - put it “ridiculous”. Parliament thought so too, and voted against the Programme Motion that set out the timetable for the Bill.

This was just the latest of the long string of ways, some outlined in my previous post, that May’s and now Johnson’s government have treated parliament contemptuously and found, in the absence of a majority, that parliament has many ways of biting back. There was no need for it, any more than for what was quaintly described in parliament as the “jiggery-pokery” of this week’s failed attempt to hold a Meaningful Vote. By the same token, Johnson’s latest, and third, refusal to appear before the Commons Liaison Committee reeks of his dismissive attitude to parliament at the very moment he is so dependent upon it.

In the case of the WAB timetable, it was totally unnecessary: the 31 October date would (all but) certainly have been breached anyway if only to allow European Parliament ratification, the extension letter had already been sent, and there could be no doubt that a short technical extension would be agreed if the WAB had passed. If the concern was ‘wrecking amendments’ it was pointless, as such amendments could have been laid anyway. As so often, it was just macho posturing.

The bad winners of Brexit

Tactically, the attempt was, as has been shown by its failure, ill-judged. But it was also strategically ill-judged and in a way which has a wider significance than this particular episode. Suppose it had succeeded? Then, Brexit would for years be dogged by accusations of having been achieved through hole-in-the corner means, without proper parliamentary oversight. If so, that would be added to a whole strong of similar accusations that Brexit is going to face anyway, if it occurs. Everything from the dishonest manner in which the referendum campaign was fought and won, the unnecessary legal battles over parliamentary involvement, prorogation and, even, whether the PM had to obey the law all mean that any sense of victory will be sour.

If I were a Brexiter, who genuinely believed that this was a project for national liberation and national revival, I cannot imagine taking any pleasure in having achieved it through such squalid and disreputable means. It is one of many ways in which Brexiters’ graceless response to their referendum victory gives the impression that they would have been happier if they hadn’t won.

For that matter, as the WAB debate speeches this week by ERGers such as John Redwood and Owen Paterson show, the Brexit Ultras feel no joy in the deal that they have signed up to, and do not regard it as the Brexit they had really envisaged (like the apologists for every failed managerial fad and political ideology, Brexiters are always going to say that it would have been fine had it just been implemented ‘properly’). As I remarked in my previous post, the national tragedy of Brexit is that, even if it is done, the most ardent Brexiters will be as bitterly unhappy as remainers.

The WAB’s nasty surprises

Returning to the WAB itself, the impression given was that the government had something to hide in seeking to ram it through so quickly. It is no good saying, as some did, that parliament had had years to discuss every aspect of Brexit. The fact is that, after all those years, this was the first time that anyone had seen in precise, detailed, legal terms what Brexit (at this stage) meant. And on examination the legislation revealed at least four areas of controversy over and above those that were already clear from the broad outlines of Johnson’s deal (for detailed, expert, legal analysis of the Bill, see Steve Peers’ excellent blog).

First, it emerged (initially, it seemed, to the surprise of the Brexit Secretary himself) that the new arrangements for Northern Ireland (NI) would involve new customs processes (not necessarily declarations) for goods travelling both from Great Britain (GB) to NI and from NI to GB. This further underscored the reasons for the DUP objections to the deal for, indeed, it shows how transactions between the two parts of the same country are now pretty much on a par with importing and exporting goods between separate countries. There could hardly be a greater affront to unionism nor, though for mirror-image reasons, to Scottish nationalism.

This, along with the different regulatory arrangements for NI, leads to an observation, which I had not thought of or seen before in these terms, made by the finance and economics writer Frances Coppola in a tweet this week: Johnson’s deal means that after Brexit the UK will no longer be a single market. Expressed that way it is quite remarkable. There have been long debates about whether or not the UK could and should remain in the European Single Market after Brexit. Never was in envisaged, in terms, that the UK single market would be brought to an end.

The second issue to emerge was over workers’ rights protections. It was already controversial that these had been moved from the Withdrawal Agreement (WA) to the non-binding Political Declaration (PD). In the legislation, a bizarre pair of clauses has it that a minister introducing any future legislation must state that it doesn’t reduce such rights compared with EU provision or that the minister is unable to state that but wants to proceed with the legislation anyway! I suppose it is conceivable that this was a drafting error but if so, given the political charge of the issue, an extraordinary one.

Thirdly, the proposed legislation requires that future terms negotiations with the EU be constrained to the ambitions set out in the PD. This is particularly sneaky, because one argument to waverers on both the Tory and Labour sides has always been that since the PD is not legally binding (i.e. unlike the WA it would not form part of an international treaty) then there is ‘all to play for’ once the WA is ratified. The WAB would use British law to undercut that (albeit that, I suppose, a future government could legislate to change that law).

Fourthly, and perhaps most controversial of all, the WAB deprives parliament of the right to force the government to seek an extension to the Transition Period (TP) in order to prolong post-Brexit trade talks. This is enormously significant to what would happen – and very soon – after Brexit day if we get there. As discussed in my previous post, a potential new cliff-edge arises if there is no trade agreement in place by the end of the TP at end 2020 and if the UK has not asked for an extension by 1 July 2020 (more detail on the likely timetable and issues arising from it here).

No one serious thinks the trade talks will be to any degree advanced by then – especially given that whether held before or after Brexit an election will shave a couple of months off the time available – and Johnson has said that he will not apply for a TP extension. That could of course be bluster, but if not then there is the prospect that, without any parliamentary agreement, there would be a new kind of no-deal Brexit at end of 2020. (In passing, it is perhaps not sufficiently explained in the media that this would be a new kind, and not the same as the no-deal we talk about now, in that there would be a WA in place but, equally, by that point there would be no ‘revoke Article 50’ option available as a final defence against the new version of no deal).

This may be what some Brexiters actually want. Others may still nurture the fantasy that this will be ‘the easiest deal in history’ because the UK would be starting from a position of alignment with the EU. I discussed that myth a couple of years ago but this week there was a reminder of one of the reasons why it is a myth. A ‘normal’ preferential trade deal takes a long time partly because various businesses and sectors lobby to be excluded from regulatory alignment (usually for protectionist reasons). In this trade negotiation the delays will be for the mirror-image reason: lobbying to remain aligned. Businesses have already begun (£) to make the opening salvos in that process.

A General Election?

The various controversial issues just identified in the WAB, and others, may well be the subject of amendment if it emerges from its present ‘in limbo’ status (this, apparently, is the correct term for it, and it could just as well be applied to the entire Brexit situation). If so, it may yet pass, and Brexit may yet happen. However, the possibility is now intensifying that events will be delayed by a General Election and, if so, that represents possibly the last chance for Brexit to be averted.

That may sound a strange thing to say, given that Johnson himself is pushing for an election, now, weirdly, tying this giving more time to debate the WAB (not that much more, in fact). But - barring some very dramatic event - the only realistic route to remain now lies in a Labour administration – whether majority or minority – organizing another referendum (this would in turn entail yet another request to the EU for an extension).

The present parliament almost certainly isn’t going to vote, and legislate, for another referendum. On the other hand, if the WAB ever is debated by the present parliament then it is quite likely to end up passing. The Second Reading, after all, passed by 30 votes – allowing Johnson to make the wholly dishonest claim that his deal had been “passed” – and although many of those votes (it would only take 15) could peel away at Third Reading it looks plausible that it could squeak though. Even if it were heavily amended, most amendments (e.g. to seek a customs union) could easily be undone by a future government whereas, so long as it passed, then Brexit would have happened and there would be no way back. Also relevant here is that after 31 October there will be a new Speaker, who may well be less robust in defending the rights of parliament than John Bercow.

I had been planning to set out this analysis in greater detail, but the ever-acute Ian Dunt has already done so. Of course, as Dunt explains, the outcome of such an election is very difficult to predict. But to my mind the crucial point is that an election in which Brexit has not happened will see the Tory vote eaten into from both sides, by the Brexit Party and by the LibDems. Indeed, there is some recent polling evidence for this. Clearly Johnson will play his ‘people versus parliament’ card, but with Brexit not done a good chunk of the Brexit Party vote will not vote for him – enough to lose him some seats without, in all probability, gaining as many or even any at all for Farage.

Tactical errors from both parties

This gives Labour a far better chance of winning than would a post-Brexit election, with Johnson riding high against the Brexit Party as the man who had ‘got Brexit done’ (and just before it became obvious to all that this was just the start of many more months and years of Brexit dominating everything). That ought to make an early election attractive to Labour. A month ago I wrote that it was good tactics by Corbyn to keep Johnson “twisting in the wind”, and so it has proved to be, but that has all changed as a result of the Johnson deal and the writing of the extension letter. To continue to oppose an election now is bad tactics (though, for the directly opposite view of this analysis, see Hugo Dixon’s latest In Fact blog).

Implicit in all this is that Johnson is also making tactical mistakes. If my analysis is right, he would be far better off – given that the 31 October deadline is now just a dead line – bringing back the WAB with a new timetable, having a decent shot at passing it, and then a very good chance of winning an election. That, presumably, is what the current ‘offer’ is meant to achieve, but bear in mind that this is not the first time that he has sought an election and that, if he gets one now, it’s not going to be accompanied by an agreement to debate and pass the WAB first – or at least not unless Labour are completely stupid. His error is in trying to tie the two together, rather than conceding a new timetable on the WAB without preconditions.

So, indeed, I think Johnson is making a blunder. But that is not surprising since he is presumably being guided by Dominic Cummings who, it is now abundantly clear, is not the master tactician and strategist that some – himself foremost amongst them – believe. As a result, ‘Classic Dom’ has now emerged as a term to denote a supposedly clever tactic backfiring spectacularly.

In saying all this, I make no comment on the general merits of a Labour or a Conservative government, just on what each would mean for the prospects of Brexit. Solely from that perspective there are clearly many risks in an election. If it yielded a Tory majority then the WAB would surely get passed and Britain would leave the EU. Equally, a referendum under a Labour government by no means – by no means – guarantees a victory for remain, still less the big victory that would be needed for anything like a decisive resolution.

Taking back control

Of course the scope for deciding what Britain now does about Brexit is only partly in its control. Much depends upon what the EU decide to do as regards granting an extension, its length, and its terms. At the time of writing it is not clear what the decision will be or whether it will come today or not until Monday, just three days before no-deal Brexit will happen were no extension to be granted.

Note the word ‘granted’, for, with not much comment or fuss, we have now got used to the fact that it is the EU that calls the shots. Indeed, it is hardly remarked upon at all that ‘the do or die date’ of 31 October was of the EU’s choosing, not Britain’s.

It is an early, relatively small, lesson in the reality of what “taking back control” means. If the Brexiters, those great patriots, get their way we will have many more, and much greater, lessons in that stark reality.


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