Brexit turbulence increases

It has been an interesting day, to say the least, as the UK parliament prepares itself for next Tuesday’s all-important vote on the EU Withdrawal Bill. It started with the ECJ Advocate General who opined that the UK may be able to unilaterally rescind its Article 50 notification. It ended with parliament beginning the first of five days of parliamentary deliberation on the Withdrawal Agreement and the government suffering some major defeats on legislative matters.

Although the ECJ Advocate General, Manuel Campos Sanchez-Bordona, merely expressed his opinion, which is not the same as a legal ruling, the suggestion that the UK may be able to unilaterally rescind its Article 50 notice was significant. In order for this to become law, it would have to be ratified by the judges but it is generally believed they will back the Advocate General’s stance. What is important is that although the law currently requires unanimity between the negotiating partners in order to extend Article 50 beyond the default two year period, it says nothing about the process to be followed in the event that one or more party wishes to withdraw the notice.

But in the view of Mr Sanchez-Bordona, there are a number of caveats. It would have to be conducted in accordance with the UK’s constitutional arrangements, which in effect means it would require an Act of Parliament – the government cannot simply decide by itself. Moreover, the UK would have to act in “good faith.” This means the UK cannot withdraw its Article 50 application simply to improve its bargaining position. Nonetheless, this offers the UK a potential get-out-of-jail card in the event that it is unable to secure an acceptable Brexit. More importantly, it is perhaps the first sign that the EU is prepared to offer the UK a face-saving way to remain a member should the need arise.

Domestic events were dominated by the parliamentary debate on the Withdrawal Bill. Prior to the debate taking place, the government was defeated on key ballots which highlight the extent to which parliament is taking control of the Brexit process from the government. In the first instance, parliament won a vote allowing MPs to instruct ministers on how to proceed in the likely event that the government loses next week’s vote. This will effectively give MPs the power to look at alternatives to a no-deal Brexit (the government’s apparent “Plan B” at present) which can only be good news since it reduces the chances of crashing out of the EU without a deal.

Equally significant was the fact that the government was held “in contempt of parliament” (in other words, a charge of obstructing the working of parliament) for failing to reveal the confidential advice given to ministers regarding the Withdrawal Agreement. This information will now be released to parliament tomorrow and it will clearly highlight a lot of the unattractive features of the deal, notably the limited extent to which the UK has room for manoeuvre in its dealings with the EU under the present terms of the Agreement.

What is particularly concerning is the extent to which government lawyers believe the UK will become trapped by the Irish backstop. Recall that the backstop agreement envisages the UK remaining in the European customs union and that in the absence of another solution, the UK will only be able to leave with the consent of the EU. Moreover, the UK will not legally be able to negotiate free trade agreements with third countries so long as it remains in the customs union, so in effect the UK will only be able to pursue FTAs with the consent of the EU. Anybody who thinks that the terms of the deal are unattractive now will surely be confirmed in their view by the legal advice. Although the contempt charge probably sounds a lot worse than it is, today marks the first occasion that ministers have been charged with this ancient offence. By forcing the government to reveal the full extent of its legal advice, this reinforces the view that government is losing control of proceedings.

It is, of course, easy to be sucked into the media frenzy that occurs when big parliamentary events take place. But if we have learned anything today, it is that Theresa May’s chances of getting parliament to pass her deal have receded further. The ECJ’s legal opinion may embolden MPs to believe that the choice of May’s deal or no deal does not represent the full spectrum of events. For what it is worth, I continue to believe that an extension of the Article 50 period is very much an option. A week from now, we should know which way the vote has gone. If the deal is rejected, expect a new debate to begin about what kind of Brexit the UK wants – a debate politicians should have been having for the past two years.

Persuading BOB

Theresa May's open letter to the electorate in support of her Brexit deal has been roundly criticised on social media. I can certainly see why: It was riddled with more than a few distortions and untruths.

But we need to see this appeal for what it really is: An appeal to those members of the public bored of Brexit (or BOBs) to put pressure on MPs to make it sound like she has achieved the best possible deal. In one sense, of course, she has. The EU was never going to give the Brexit brigade what they wanted, which was essentially membership of the EU without paying any of the costs. Given that starting point, the PM can justifiably say that she has concluded a deal that minimises the risks to the UK economy, which is what we have wanted all along. The question is whether she has paid too high a price.

I suspect the answer is yes. The UK is locked into various aspects of the EU that Brexiteers wanted to get away from. It is still largely beholden to the product standards of the single market and therefore to the rulings of the ECJ. Britain cannot unilaterally leave the backstop customs arrangement which prevents the imposition of a hard border with Ireland. And worst of all, there was little to nothing in the agreement that covered the non-tariff barriers that govern services trade. Financial services, for example, continue to be given short shrift with last week's political agreement suggesting that future arrangements would be based on some form of equivalency. Just as a reminder, the current equivalency arrangements effectively allow the EU to pull the plug on third country institutions with 30 days’ notice.

But for all the shortcomings of the deal, what is particularly irritating is the tone of the PM's letter. It reminded me very much of the speeches May gave in 2016 and 2017, in which her inner school mistress was evident, telling us that she was doing all sorts of terrible things for our own good.

"From my first day in the job, I knew I had a clear mission before me - a duty to fulfil on your behalf: to honour the result of the referendum and secure a brighter future for our country by negotiating a good Brexit deal with the EU." Never mind the fact that 48% did not vote for this. And no acknowledgement that things have changed in the interim. The electorate was only asked whether it wanted to leave the EU - not about the terms on which it will do so - and there is a mounting sense that a plurality of voters believes the June 2016 option to have been the wrong choice.

"We will take back control of our borders, by putting an end to the free movement of people once and for all." An end to free movement cuts both ways, of course. It means Brits will find it harder to work and travel within the EU (and it will in any case continue during the transition phase). "Instead of an immigration system based on where a person comes from, we will build one based on the skills and talents a person has to offer." Having last week accused those EU citizens taking jobs in the UK as queue jumpers, the PM again fails to acknowledge that the majority of those entering the UK are non-EU citizens.

The next sentence was just a downright lie: "We will take back control of our money, by putting an end to vast annual payments to the EU. Instead, we will be able to spend British taxpayers' money on our own priorities, like the extra £394 million per week that we are investing in our long-term plan for the NHS." The extra money committed to the NHS came from a windfall gain that the OBR found in UK public revenues that has been blown in one fell swoop - it has nothing to do with EU budget commitments. If we are going to pillory the Leave campaign for making the kind of misleading statements they made in 2016, we should also give the prime minister both barrels for the same kind of lie.

"And we will take back control of our laws, by ending the jurisdiction of the European Court of Justice in the UK. In future, our laws will be made, interpreted and enforced by our own courts and legislatures." As noted above, they will not. The UK will be bound to the ECJ for a long time to come.

"Outside the EU, we will be able to sign new trade deals with other countries and open up new markets in the fastest-growing economies around the world." Really? What if the UK is still bound into the customs union? Legally it is not permissible to conduct trade deals with third countries so long as the UK remains inside. "With Brexit settled, we will be able to focus our energies on the many other important issues facing us here at home." Brexit settled? Don’t make me laugh.

The letter ends with a call for national unity suggesting that 29 March "must mark the point when we put aside the labels of 'Leave' and 'Remain' for good and we come together again as one people. To do that, we need to get on with Brexit now by getting behind this deal." Why should we? The PM is selling out the half of voters who oppose Brexit and despite the untruths contained in the letter, it comes nowhere close to giving people the kind of Brexit they thought they were voting for.

Up to now, I have suggested that the withdrawal compromise cobbled together by the UK and EU27 was the least worst option. But having read the dishonest way in which the PM is selling it, I am tempted to change my mind. This is snake oil of the worst kind - a tissue of lies all the way through, and frankly deserves to be rejected by parliament on these grounds alone.

As a final twist, I noted that May ended her letter with the comment that "I will be campaigning with my heart and soul to win [the parliamentary] vote and to deliver this Brexit deal, for the good of our United Kingdom and all of our people." I recall that David Cameron also promised to campaign with all his heart and soul to remain in the EU back in 2013. And look what happened to him.

DExEU's Midnight Runners

Today has been another one of the momentous days in British politics which appear to have become all too frequent as a result of Brexit. Yesterday’s cabinet meeting was an ominous sign that all that was not well: Whilst the Withdrawal Agreement is a large document, and was always going to take a long time to digest, it was evident that a five hour meeting hinted at major disagreements. And so it proved when Brexit Secretary Dominic Raab tendered his resignation this morning.

This comes just four months after the previous incumbent, David Davis, resigned when it became clear he could not support the Chequers Plan. To misquote Oscar Wilde, to lose one Brexit Secretary is unfortunate but to lose two is careless. To be charitable, the job of Brexit Secretary is a thankless task for a Leaver when the process is being controlled by the prime minister’s office. But it is also an indication of how difficult it is to deliver the kind of EU departure that would satisfy Brexit supporters. In addition to Raab and Davis, we should not forget that junior minister Steve Baker, another prominent Brexit supporter, also left DExEU in July to form the trio we should name DExEU’s Midnight Runners. As was the case in the wake of the referendum in summer 2016, it is another example of how Brexit supporters tend to run away from the mess they have created. And when they have been given ministerial responsibility, they have not exactly covered themselves in glory with Boris Johnson widely regarded as one of the worst Foreign Secretaries of all time.

But it is not just Brexiteers who object to the Withdrawal Agreement, as Theresa May’s session to parliament indicated this morning. Many MPs will vote against the EU agreement for a variety of reasons – perhaps because they are opposed to the terms of the deal, or simply because they oppose Brexit. Or, in the case of the opposition Labour Party, because the leadership sees this as an opportunity to force a general election. Despite the mounting opposition, Theresa May is doggedly determined to put the Withdrawal Agreement to parliament. And as I noted yesterday, it can still pass depending on the number of Conservative dissenters. But the risks are rising.

The first problem is the position of the prime minister herself. Jacob Rees-Mogg was the first MP to send a letter of no confidence in the PM to the backbench 1922 Committee and up to 12 others have confirmed they have followed suit. Recall that it will take 48 such letters to trigger a leadership contest. JRM has no chance of becoming leader himself and of the others known to have sent letters, the likes of Brexiteers Steve Baker, Nadine Dorries and Andrew Bridgen have as much chance of becoming PM as I do of winning the Nobel Prize for physics. Indeed, the latter two characters belong to the category of politician characterised by Irish journalist Fintan O’Toole as “the genuine hallmarked, unadulterated, slack-jawed, open-mouthed, village idiot variety.” As O’Toole pointed out “the Brexiteer MP Nadine Dorries admitted in effect that she didn’t know what a customs union is. Her comrade Andrew Bridgen said last month: ‘As an English person, I do have the right to go over to Ireland and I believe that I can ask for a passport. Can’t I?’” (Don’t believe it? Listen here.)

Whatever the PM’s personal position, we now have to reckon with the real possibility that the Withdrawal Agreement may not pass through parliament. What happens if it does not? The first recourse would be to go back to Brussels and secure a minor concession on the pretext of being able to put the bill before parliament for a second time. If that fails then Theresa May is in real trouble. The sensible strategy at that point would be to extend the duration of the Article 50 process, which is possible if there is unanimity on all sides. But May explicitly ruled out that option this morning (again).  So either she reneges on her commitment or is forced to resign whilst another Conservative prime minister is installed who is prepared to extend the Article 50 period. Politicians at this stage appear more likely to ask for an extension than push for a second referendum. In any case, given that time is short, it is likely that an extended Article 50 period is a prerequisite to enable a “people’s vote” because it almost certainly cannot now take place before 29 March 2019.

None of this will satisfy the “slack-jawed, open-mouthed, village idiot” brigade which believes that no deal is better than compromise. But they are losing ground in the war to deliver their form of Brexit. A poll conducted today by Sky News suggests that whilst only 14% of respondents support the prime minister’s deal, 54% would prefer no Brexit versus just 32% for a no deal outcome. We know how reliable polls can be, but this is not a one-off result. And whilst Theresa May gets a pretty low approval rating of just 31% in  terms of those most trusted to lead the country through the Brexit process, she still leads Jeremy Corbyn and is well ahead of Boris Johnson and JRM.

For politicians who set so much store by delivering the “will of the people” it seems that many of them have lost touch with it. The electorate is becoming fed up with the political posturing and any politician prepared to gamble with the country’s economic future ought to think twice, for the electorate may yet wreak its revenge.

Trying to seal the deal

It has been a rough ride and one which at times did not look like it would ever be achieved, but the UK and EU have finally agreed a draft divorce treaty which sets out the bare bones of what will happen on 29 March 2019 (all 585 pages of it here). Naturally, this is not the end game: An awful lot of effort has been expended just so the UK can get to the start line for the marathon talks with the EU that lie ahead. But at least the UK has been able to agree a relationship that does not imply a hard border in Ireland, thus satisfying one of the EU’s key requirements and offers a glimmer of hope that a hard Brexit can be avoided.

The draft agreement involves a UK-wide customs backstop, thus removing the need for a customs border within the UK – which is the approach I have advocated all along. However, the EU has insisted that Northern Ireland remains in a deeper customs and regulatory relationship with the EU, which has so angered the DUP.  It is hard to digest the full implications of the document, given its dense legal language, and undoubtedly more details will emerge. But at a first glance, the UK will not be able to unilaterally end the backstop arrangement with Northern Ireland – the EU has a veto. The document also states “the institutions, bodies, offices, and agencies of the Union shall in relation to the United Kingdom, and natural and legal persons residing or established in the territory of the United Kingdom, have the powers conferred upon them by Union law. In particular, the Court of Justice of the European Union shall have jurisdiction as provided for in the Treaties in this respect.” In other words, the UK has to play by the rules established by the ECJ. 

EU27 ministers are scheduled to meet next week and are unlikely to raise any serious objections. All being well, it is possible that the UK government and the EU27 will hold a summit on 25 November to ratify the agreement. And then the fun starts. Any deal has also to be ratified by the UK parliament and various politicians and media commentators have spent the last 24 hours telling us how difficult it will be to get this done. Indeed, Theresa May’s negotiation efforts continue to unite hard-core Leavers, who believe that the plan as currently envisaged will turn the UK into a “vassal state”, and Remainers who believe the deal is so much less favourable than current arrangements that the only way to proceed is via a second referendum (a “people’s vote”). 

Let’s start with the voting arithmetic to assess whether it can pass through parliament. By my reckoning, there are 638 MPs eligible to vote (650 MPs in total, less 7 Sinn Fein MPs who have not taken up their seats; the Speaker of the House and his three deputies, who by convention do not cast a vote, and one MP is suspended). This means ratification requires 320 votes. We know that anywhere between 40 and 80 Conservative MPs are likely to vote in principle against any agreement with the EU (let’s round that up to 100 to account for other malcontents). The Labour leadership will almost certainly try to use the Brexit vote as an attempt to force a general election, though not all will necessarily follow. Assume, therefore, that 200 of 257 Labour MPs vote against the deal. What about the rest? The 9 DUP members appear minded to vote against, as do 4 from Plaid Cymru. If the 12 Lib Dems and 35 Scottish Nationalists also withhold their support, it is dead in the water. Even if each of the 7 independents supports the government’s position, the plan would be defeated by 360 votes to 278. However, if the Conservative dissidents can be limited to 55 or less, the plan has a fighting chance.

A more pertinent question is why would anyone vote against the agreement? Obviously, up to 80 Conservatives are irredeemable hardliners who have no interest in reaching an accommodation with the EU. The DUP objects to the prospect of differing EU customs relationships for Northern Ireland and the rest of the UK. But what is in it for Labour? The party leadership clearly wants to put pressure on the government and force an election but a large bloc of Labour MPs oppose Brexit on principle and are thus unlikely to vote for a policy which entails leaving the EU, despite the fact that their leaders are pro-Brexit. Thus, MPs from the same party can be expected to vote against the government for different reasons but the end result is still the same. In a similar vein, the SNP and Lib Dems are also opposed to Brexit and will vote against legislation that enables it. But gambling on the prospect of a second referendum, in the event that the government’s efforts to find a compromise have failed, would be an exceptionally risky strategy. We simply do not know what will happen if the agreement is rejected in Westminster.

For all the sound and fury, I cannot envisage that the UK will be able to improve on the current deal. It is far from perfect: Financial services are clearly not going to get any preferential treatment which from a professional perspective is not good news. And as I have long pointed out, an arrangement in which the UK is a rule-taker is massively sub-optimal compared to the status quo. But it is perhaps the closest economic relationship that the UK can possibly achieve if it wants (foolishly) to curb the free movement of labour. Agreement is all about compromise – as the journalist Paul Waugh put it, this is the Rolling Stones solution (“you can’t always get what you want / but if you try sometimes / you might find you get what you need”). It remains to be seen how much compromising MPs are prepared to undertake.

More to the point, pro-Brexit supporters have never been honest with the electorate about the choices that leaving the EU entails. Jacob Rees-Mogg and his cronies simply cannot obtain a better deal than any compromise offered by the EU. Brexiteers claiming that the UK has capitulated to Brussels are, to be blunt, barking mad. I have more sympathy with hard-core Remainers but short of halting the Article 50 process, which will give the UK more breathing space to decide how it wants to proceed, voting down the compromise agreement risks a no-deal outcome. As the IMF pointed out today, a no-deal Brexit could be expected to cost around 6% of GDP in the long-term versus the no-Brexit baseline (figures which accord with my own simulation exercises).

Much as I do not want the UK to leave the EU, I fear the motives of those who would vote against the agreement even more. It would almost certainly spell the end of Theresa May’s career, and whilst many might say that is no bad thing, who in their right mind would want to take on the poisoned chalice that is the PM’s role? And if it leads to a new election, it is likely to result in another hung parliament as the electorate punishes those parties which used the Brexit process for their own political gain. There are bad deals and there are bad deals. If the UK really must leave the EU, then the terms set out today appear to be the least-worst option. As bad as the terms are, the alternatives are far worse.