Deal or no deal? There’s still no end in sight

And so the pitiful charade continues. To the surprise of no one at all the cross-party talks have died a death. In truth they were stillborn, but it is a recurring feature of Brexit that every development is shrouded in dishonesty, deception, fantasy or, usually, all three.

That applies to almost all the discussions of deal or no-deal. What looks certain to be May’s swansong is typical. She is now going to make a final attempt to get Parliamentary approval for her deal, this time though the back-to-front mechanism of a vote on the Withdrawal Agreement Bill (WAB) rather than another ‘meaningful vote’. In other words, the idea is to approve the domestic legislation to implement the Withdrawal Agreement (WA) before deciding whether to ratify that agreement with the EU. It might best be described as putting the cart before the dead horse.

Indicative votes

Before we even get there, it seems that there is to be a new round of government-initiated indicative votes (IVs). The previous round, initiated by the House of Commons itself, did not yield a consensus and the next version will probably have the same outcome. To an extent, that is to be hoped for, because several of the options – if a leaked document is correct – are, literally, gibberish.

In particular, one option proposes a customs “arrangement” with all the benefits of the customs union but with the freedom to make independent trade deals. About the only sense that can be made of that is if it implies services-only trade deals. If so, the benefits – already tiny, if existent at all – of an independent trade policy are further diminished: free trade agreements have limited purchase in services.

I suspect that this is what is implied because two other options refer to a “comprehensive customs union in goods and services” (so, presumably, this is the difference from the customs arrangement, which only mentions goods). But, alas, the customs union only relates to goods, not services. So voting for those options will be indicative of nothing except MPs not knowing what a customs union means. None of the customs options are anything to do with the WA anyway – they all relate to how the Political Declaration might be changed.

Other options for the IVs are different, relating to process, and here the crucial one may turn out to be on not having a confirmatory referendum. If MPs vote for that option (i.e. because the wording means that voting ‘aye’ to the motion will mean saying ‘no’ to a referendum), it will be a major blow to the remain cause although not a fatal one. A fifth option – voting on the package agreed with Labour – is of course already obsolete since we now know that no such agreement has been reached.

Deal?

With the IVs done, we will then get to the WAB vote in early June. There’s every chance that some MPs will try – and even a small chance that they will succeed – to insert an amendment based upon the erstwhile Brady Amendment or, which is more or less the same thing, the ‘Malthouse Compromise’. This would have the effect of writing into UK law something (i.e. no backstop, or a circumscribed backstop) which directly contradicted what the UK was committed to by international treaty if the Withdrawal Agreement were to be ratified. In those circumstances it’s conceivable that the EU would not even ratify the agreement anyway or, if it did, that there would be an immediate dispute about its meaning.

Supposing, though, that the WAB and the subsequent meaningful vote see May’s deal passed unamended. To hear May, and much of the media, talk you would assume that this would mean that Brexit was done and dusted. It’s reported today (£) that some potential Tory leadership candidates do indeed think that, with the legislation passed, the contest would be all about non-Brexit issues. That is the sheerest fantasy.

The reality is that if May’s deal is done it will only be the beginning of a protracted, complex and highly contentious negotiation with the EU, under the new time pressure imposed by the transition period. It will be conducted against the backdrop of vocal cries of betrayal from Brexiters within and outside of the Tory Party. And very likely it will be under the leadership of a Brexiter PM who regards the deal as odious and will seek to undermine or wriggle out of it.

Indeed, if May’s deal passes, the Tory leadership election is going to be a very strange affair. It seems unlikely that it will be another coronation, so the party membership will have a vote, which seems certain to mean a Brexiter will be chosen. Boris Johnson is generally regarded as the front runner (though I am not convinced this will prove true) but all of them will in those circumstances be unable to run on a ticket of seeking to re-negotiate the backstop. It will have been agreed by Parliament and (presumably) ratified by both the UK government and the EU.

No deal?

Clearly, though, it is far more likely that May’s deal doesn’t pass, or come anywhere close. Then, the situation is going to be enormously complex. First and foremost will be the issue of time. With no deal agreed, the Brexit deadline will be the end of October. The leadership election will take weeks, followed by or running into the summer recess. The winning candidate will almost certainly have been elected on the platform of re-negotiating the WA to remove or truncate the backstop and in the event of that re-negotiation failing leaving with no-deal.

That re-negotiation will fail, without a shadow of a doubt, but it will take up a few more weeks and the October deadline will be closing fast. Does the new PM seek a General Election – possibly requiring an application to the EU for another Article 50 extension to accommodate it - on a no-deal platform that s/he might well lose, and which would anyway provoke a huge split? Just sit and let the time run out with no-deal happening automatically? That would risk MPs finding a way, as they have before although it might not be easy to do so again, of taking over control of proceedings with a view to forcing the government to take another course – conceivably meaning the revocation of the Article 50 notice if that was all there was time for? Or might it mean the insanity of Rees-Mogg’s proposal of the prorogation of parliament in order to prevent this?

All these entail huge difficulties but suppose that, in some way or another, the new Prime Minister manages to get to no-deal. What then? The economic chaos has been widely-trailed. Less obvious, but crucial, is the point made cogently by Alex Dean in Prospect this week: it would not be an end-state, with ‘clean Brexit’ done. It would be the beginning of a new set of very urgent negotiations against a background of serious economic and social dislocation, probably including a further collapse of the pound, and major political crisis.

This is actually the sub-text of all the ‘managed no-deal’ formulations including Farage’s claim that the UK should leave and then immediately open talks on a free trade deal with the EU. But of course many other things apart from trade would need to be agreed. Some of them, such as a bare-bones deal on aviation, would likely be agreed in the interest of, and on terms dictated by, the EU without preconditions. Others, including trade, would entail as a pre-requisite agreement on all the things in the WA (Farage, naturally, still pushes the discredited pre-referendum claim that the EU will come running for a trade deal). That includes, as Liam Fox admitted in an interview this week [time limited download], an agreement about the Irish border.

Makes no sense?

So in any scenario in which Brexit goes ahead we are still, even now, only at the very beginning. May’s deal heralds one new set of negotiations; no-deal heralds a (different) new set of negotiations. But perhaps calling it ‘May’s deal’ is part of the problem, encouraging the myopic focus upon UK domestic politics in general, and May’s personal political fate in particular.

In reality, it is a deal struck between the UK government and the EU. Its form – and certainly the backstop – arises from the red lines which May and her likely successor share. The issue is that Brexiters don’t accept the consequences, imagining them to just reflect May's lack of 'true belief'. So once May has gone nothing really changes (although whether she goes with or without the deal passing will certainly make a difference to what happens next).

Nor will anything change unless or until an honest and realistic discussion of Brexit and what it means begins, of which there is less sign than ever not least because of the re-entry of Farage and the Brexit Party into the fray.

And if none of this makes sense, don’t worry. In fact, congratulations. You’ve understood what is going on.

Parliamentary chaos holds up a mirror to the nation

The growing confusion surrounding Brexit is partly because of the pace and scale of events. Things which would normally be big stories, dominating the news for days, are forgotten within hours as some new development occurs. But beyond that pace and scale, the confusion arises because Brexit has ceased to be a single political process and now has multiple interconnected strands, some parliamentary and some governmental, some of which are quite unusual in their form.

Moreover, there are now multiple open factional splits amongst MPs and, of course, the wider public. All of this serves to make events both fluid and shapeless. Making any sense at all of them requires unravelling the separate strands, although the constant developments mean that some of what is written here may be out of date within a few days if not hours.

Indicative Votes

One strand was the continuation of the parliamentary process of Indicative Votes (IV), which had its second stage on Monday. As before, no proposition was supported. Here the split, which has been growing for a while, between what we now call Common Market 2.0 (CM2) advocates and People’s Vote (PV) advocates was a defining feature.

CM2 could be seen as a Brexiter proposition (were it not for the fact that most high-profile Brexiter now regard it as ‘betraying Brexit’) but it is also a place where some remainers now position themselves, on the basis that it is the least-worst form of Brexit. For at least some PV advocates this makes it a ‘betrayal of remain’. Thus, even though the IV process allowed for multiple choices to be made, insufficient numbers were willing to vote for both propositions.

It was, as a scathing analysis by Ian Dunt put it, a “self-inflicted defeat” placing “puritanism over pragmatism” in a way that mirrored the same division within the ERG. The latter, too, are now bitterly split between the self-styled ‘Spartans’ (or, as Martha Gill has amusingly dubbed them, the ‘Brincels’) who held out against May’s deal and those we might appropriately call the ‘Bellocites’*.

That aside, there were two noteworthy aspects of IV2. First, that it saw Labour officially supporting both CM2 and PV propositions, perhaps indicating a clearer position than hitherto been. Second, the failure of CM2 to be approved further shook the now rickety edifice of the Tory Party and government, with Nick Boles crossing the aisle in despair.

I do not understand why – as had at one time been mooted – this second stage of IV was not conducted using some sort of transferable vote system, which could have got round the problem of tribalism and created some form of consensus, perhaps alongside, or followed by, compositing of propositions. Perhaps this would have happened at the third stage but that, now, is off the agenda following the dramatic tie and hence (on the Speaker’s casting vote) defeat of the Benn amendment that would have seen it take place next Monday.

The Cooper Bill

The end of parliament’s IV process came as part of the second main strand of this week’s events. For reasons which are not entirely clear to me (perhaps just to ensure that they would not stand or fall together, or perhaps for some procedural reason) the proposal to continue them was tagged as an amendment to the business motion vote on whether to debate the Cooper Bill. This vote was, by a margin of one, carried.

The Cooper Bill – proposed by Labour MP Yvette Cooper, who has emerged as one of the parliamentary stars of Brexit - requires the Prime Minister, within a day of it passing, to seek MPs’ approval to apply to the EU for an extension to the Article 50 period. The length of extension proposed would be of the Prime Minister’s choosing, but could be amended by MPs. Although Theresa May had already said she would be applying for an extension, the difference is that under this legislation parliament would control the application and its period.

The Bill was passed by the Commons on third reading by, again, just one vote. The following day it went to the House of Lords where it was subject to extensive and shameless filibustering from Brexiter peers. It is ironic to recall that the wrecking tactics of the unelected House of Lords were cited by Theresa May as one reason for calling her ill-fated snap election in 2017.

It could only delay matters until Monday, but that delay mattered because in the meantime Theresa May has submitted her request for an extension – until 30 June. This seems to be an attempt to avoid being subject to the putative Cooper Act, perhaps simply for the symbolic reason of wanting it to seem to be the government rather parliament is driving events. That would be a fairly typical piece of May game-playing. I am not clear what, if anything, now happens when the Bill is passed (or, even, whether it will now be pulled). But on the substantive issue of extension and its length the decision rests with the EU in any case (more of which below).

This strand of events is significant in two ways. First, it is remarkable in terms of political process. It is highly unusual (possibly, though I am not sure, unique) for parliament rather than the government to propose legislation. It is also highly unusual (but not, I believe, unique) for legislation to be passed so quickly. Months of normal parliamentary process were telescoped into hours. This, along with all the breathtakingly close votes, the defections, and the resignations, is a reminder of just how desperate a crisis Brexit has created.

The second significance is for Brexit itself. Some commentary misleadingly suggested that the Bill would kill off no-deal. This is not true precisely because the EU has to agree to any extension. Moreover, an extension of any length does not prevent no-deal, it simply defers that possibility which remains the default if nothing else is agreed.

What can be said is that it shows the unlikelihood of parliament ever allowing UK to pursue no-deal as a matter of its own choice. With the growing volume of Brexit Ultras calling for just that – with gross irresponsibility massively downplaying the catastrophic risks associated with it, and with gross dishonesty claiming it was what people voted for – this makes the Cooper Bill an important moment. Whilst in recent days May seems to have clearly signalled that she would not countenance pursuing no-deal, there’s no real reason to believe she won’t flip-flop on that. The Bill, and the manner of its passing in the Commons, emphasises that she has little scope to do so and that parliament has powerful weapons to prevent it.

The May-Corbyn talks

Alongside these parliamentary strands runs a third, governmental, one. This emerged following a very lengthy cabinet meeting in which Theresa May did indeed, it would seem, reject the no-dealers’ argument (£). Instead, she ‘reached out’ to Labour to seek a consensus. As has been widely pointed out, the time for her to have done this has long past. It should have happened when she first became Prime Minister or at least after she failed to win the 2017 election.

It is, again, a sign of the quite extraordinary crisis we are in that this rapprochement should be sought. The personal and political dislike between May and Corbyn is visceral, probably greater than there has ever been, at least in my lifetime, between the leaders of the two main parties. Apparently despite that, but actually compounding it, are their resemblances. As I have written before, they are “remarkably similar in their grotesque rigidity and their slightly tetchy muleishness born of a mediocrity of character, intellect and judgement”. Both, moreover, are instinctively tribal.

But the issues here go well beyond the personalities. Both parties are deeply troubled by these talks. Tory Brexiters, especially, are outraged, leading to new additions to what has become an epidemic of ministerial resignations. One was Chris Heaton-Harris, who infamously sought information on the names of every UK academic teaching about Brexit and what they taught. At the time it was said that it was research for a book he was writing. It has never appeared, but perhaps now he will have time to write it.

There is great unease on the Labour side, too, about whether Corbyn is about to give in to his pro-Brexit inclinations and, in the process, to make a huge tactical error by taking a share of responsibility for Brexit and for rescuing May. Moreover, anything that gets agreed between them would not in any substantive way be enforceable under a future Tory Prime Minister and/or a new parliament.

The central issue, though, is that the minimum that Corbyn can credibly seek would be a permanent customs union. That would be far too much to be acceptable not just to the ERG but also to plenty of other Tory backbenchers and ministers. Yet that minimum demand would be far too little for many Labour backbenchers (and members), for whom another referendum is vital, whilst a sizeable minority of them are adamantly opposed to Corbyn making such a demand, and another segment only want a referendum on a ‘Tory’ Brexit. Equally, the fragile formula of single market ‘alignment’ or ‘access’ that can hold together those who want single market membership and those who don’t want free movement of people. In a sense, the issue is to what extent Labour support for CM2 and PV in the IV represented anything (other than a proliferation of acronyms).

In short, the talks lay bare the splits within each party and thus, even if they produce anything, it is far from clear it would be something for which there was a parliamentary majority (£). At the time of writing the talks are set to continue. I would be surprised if they yield anything more than, perhaps, some propositions to be voted on by the Commons - but something more substantive obviously can’t be ruled out.

Where next?

That question is no easier to answer than it has been for months. May’s request for an extension only until the end of June is an absurdity, and as Green MP Caroline Lucas pointed out “at odds with reality”. The current signs are that the EU-27 will propose a one year extension with the possibility of it being ended earlier if the UK is ready. Thus, as if we needed it, there is now a new piece of Brexit jargon: flextension.

This has been floated by Donald Tusk, but it cannot be assumed that it is what the 27 will agree, as recent noises from President Macron underscore. It does, after all, require unanimous agreement. Moreover, the rationale for extension offered in terms of the ongoing talks with Labour plus a plan for more Commons votes seems to fall somewhat short of a robust process. And with Brexit Ultras like Jacob Rees-Mogg already talking grotesquely of using the extension period to be as obstructive as possible it’s not hard to see why some countries might not be eager to extend.

If no extension were agreed then the next huge debate is going to be whether the UK, without a further referendum, chooses to revoke Article 50 notification. MPs did not endorse this idea in the IV process: if no-deal becomes imminent that might well change.

May’s ‘short’ request is probably best understood as a signal to the Brexiters that she tried her best to minimise delay, but the EU insisted otherwise. But the text of the letter, which refers to making preparations of the European Parliament elections is also a signal that she is ready for, and probably expecting, the extension to be longer. There is also a clear signal to the Brexiters in her acceptance that the Withdrawal Amendment will not be re-opened: they cannot hope for a renegotiation of the backstop. That is significant since even this week, ludicrously, they are still flogging the ‘Malthouse’ dead horse (this time as an attempted amendment to the Cooper Bill) which would require such a renegotiation.

Participation in the European Parliament elections would not be the terrible calamity that May and others claim it to be. But it will be a very important moment, bitterly contested between pro- and anti-Brexit parties and candidates. It will be the latest of the Brexit ironies if the UK for once approaches European elections in a highly engaged way with a huge turnout. And if it should end up that we stay in the EU, it is an opportunity to send more decent and sensible MEPs in place of the UKIP wreckers.

A long extension will surely change the political dynamic. Even if May’s deal is still potentially in play the disappearance into the long grass of an actual exit day will fuel a sense amongst leavers that it is never going to happen. That is no bad thing – better to release the pressure of the ‘betrayal’ narrative slowly.

For the time being the talks with Labour will continue and, should they fail, the government itself, rather than parliament, is set begin another IV process. The results of that are unpredictable – and will depend in part upon what options the government table, something already causing concern to the MPs who created parliament’s original IV process - but seem likely to soften Brexit and/or to see support for a referendum. There are reports that the latter is to be offered as one of the propositions that will be put for consideration.

On that basis, it’s tempting to think that the Ultras have, through their own intransigence, let the chances of Brexit slip. Yet, even if this proves true, they will be happy enough to hunker down for years of victimhood and betrayal talk. It’s win-win for them. It’s tempting, too, to think that, despite the inconclusive results of Monday’s IVs, another referendum is now more in prospect than before, possibly via a Kyle-Wilson arrangement whereby May’s deal is accepted by parliament in toto on condition of a confirmatory public vote.

A mirror to the nation

It’s also tempting – and no doubt many succumb – to think that all the political drama shows parliament in a bad light. I don’t think so. There is, in a way, something admirable about the way that parliament has come so centrally into focus, with so many people now tuning in watch debates and votes. With it we have also discovered outstanding parliamentary commentators in Ruth Fox and Mark d’Arcy. Despite what the Brexiters told us, the British parliament is sovereign, and what it does matters.

What parliament is in fact doing is precisely what it should: representing the nation. But that holds up a depressing and deeply worrying mirror to all of us. For it reveals a country deeply, toxically and perhaps irredeemably divided, facing choices all of which are bad, and with no agreement whatsoever what to do about an entirely self-created mess. Semi-naked protestors and a flood of water or, on one early account, sewage (this turned out not to be true) in the Commons chamber just add some all too piquant, if unsubtle, metaphors to the picture.

To repeat an obvious point, the root of all the chaos we see is having offered the country the opportunity to choose as its entire economic and geo-political strategy something with multiple, contradictory and hotly-contested definitions and, when voters took that opportunity, to enter into a time-limited process before settling on a definition. It was never going to end well, and it’s not.
 
*“And always keep a-hold of Nurse/ For fear of finding something worse” Jim (1907) by Hilaire Belloc