Sunday, 16 December 2018

Brexit hokey cokey. But there is a way out......

In, out? Shake it all about! There's certainly a lot of hokey being spoken about Brexit at the moment. For a start, I think I'll go crazy screaming at the radio the next time I hear some blithering idiot castigating the government for wasting 2 years and still not getting a final deal. The EU set it up that way, they would not negotiate about the future until after we leave. The time to complain about that was 18 months ago. I did.

Conscious that I would add to the hokey I have kept my peace till now about Theresa May's "deal" that isn't a deal, it's just a Withdrawal Agreement. But whatever I think of it is irrelevant as it's a dead duck. Or is it?

I think it would have been easier for May to sell now had she not played her cards so close to her chest, not even keeping her SoS for Brexit in the loop. It shouldn't have been a surprise that this was the case as we knew that was how she ran the Home Office. Once a control freak, always a control freak. But this meant little scope for expectation management, which is so often crucial to the perception of the outcome of just about anything.

There is some groundswell for a second referendum since the ECJ has ruled that we can change our mind and unilaterally revoke Article 50. But we must do so "unequivocally and unconditionally" following "democratic process". Is there time for that? The Article 50 deadline could be extended. But there is a problem. Just as Parliament cannot form a majority view, neither can the public. Referenda are only useful in choosing between two clear options, not for clarifying between multiple choices some of which might not be available anyway. And I don't buy that we now know what we are choosing between. We don't know in detail what any of deal, no deal or staying in the EU hold for us. The EU were not prepared to negotiate the future arrangements before we leave so, by definition, we can't have another referendum knowing what leave means before we do leave. And yes, I do mean we don't know what staying means. The people behind ever greater union don't normally come clean up front about their plans but things slip out now and then, like the current Franco-German drive for a European army. And if there were to be a second referendum - not a "People's Vote", more like an elitists demand for a mulligan - we have to know for certain what the terms of staying would be. What about our rebate and opt-outs? What about the useful if limited concessions Cameron won in his rather pathetic renegotiation before the referendum? What about the Schengen area and membership of the euro? My guess would be we would hear very little about those but guess what? If we lost the opt-outs they will come on the agenda sooner or later, as sure as eggs are ovoid things with shells.

The people voted to leave. Parliament promised to do it. It was left up to them to find the best way of doing it. I'm not impressed if they fail.

But what of the deal itself? Of course hardly anyone likes it but that was always inevitable. If you go into a genuine negotiation you rarely get everything you wanted, especially if you are the inherently weaker party. Were Remainers ever going to welcome it? No. Were hardline Brexiteers? No. Were the softest of soft Brexit supporters? No. So by definition I am not surprised that only around 15 to 20% - a third of a half - think it's a "good deal". (A half because half voted to Leave and a third of Leavers are prepared to shoot for somewhere between hard and soft). Of course the deal feels uncomfortable and unsatisfactory, but that doesn't mean it automatically is a "bad deal".

When Mrs May came back from Brussels with what I called "peace in our time" and got through her 5 hour cabinet meeting with the loss of only one more front line minister I was interested to see the reaction of the Brexit supporting newspapers. The Daily Mail has been behind Mrs May throughout and is strongly supportive of the deal, while accepting that it is disappointing in many ways. I think they feel it's that Brexit or there will be no Brexit. The Daily Telegraph has tended to be more dogmatic about what represents a good Brexit. It ran a leader that I had to read twice before deciding that it's editor doesn't much care for the deal but couldn't actually come out against it. All of his feature writers did, apart from one, Jeremy Warner, who I'll come back to. The PM's deal is a far cry from the free market prescription the Sunday Times advocated in the immediate wake of the referendum. But its editor is urging MPs to back the deal as the best of the options now available. Meanwhile Niall Ferguson, writing in that paper on 18 November, said the deal isn't a bad deal "it is a terrible deal". He also disputed Jo Johnson's comparison with the Suez crisis or, as some have suggested, Chamberlain's Munich agreement of 1938. Ferguson is a real historian so he argues cogently that this is much more like Henry VIII's decision in 1532 to leave the Catholic fold. That does seem a much more apposite historical analogy. But oo,er - that rumbled on for decades and was nearly overturned. However, the Reformation eventually stood. Will Brexit?

What do I think? The deal gives a smooth flight path towards unspecified final arrangements that are likely, but not guaranteed, to honour much of the expectations of most leavers. While far from perfect I find it a sensible way forward, albeit very hard to rake up much enthusiasm for. I am concerned that the final arrangements are less than clear but they were never going to be, the EU decided that a long time ago.

I could easily be persuaded to back the deal apart from the worry I've had all along: the 'locked-in syndrome' of Hotel California where we risk being kept in the backstop against our will for ever, as reputedly threatened by Sabine Weyand, Barnier's deputy. This is also the main concern for most Tory Brexiteers and is linked to the DUP's problems with the deal.

I've read an opinion that while our original decision to join the EU did not compromise the sovereignty of Parliament - because the ability to leave the EU was retained through the ability to repeal the relevant legislation - the deal does cede sovereignty as the EU could refuse to allow us to leave the customs union. I have seen it argued* that this breaches the constitutional principle that parliament cannot bind its successors. I hesitate to quibble with a professor of law but I'm not sure he's right as governments do sign up to international treaties which bind their successors. However there is always a way out.

The key issue is can we ever get out of the backstop. The Attorney General's legal advice didn't tell us anything we didn't already know - we can read! I find it persuasive that the EU won't actually want to keep us in a customs union indefinitely. After Weyand's smarmy threat the backstop was changed to all of UK staying in the customs union, not just northern Ireland. I think this was a key concession by the EU. The DUP do not seem to understand that this makes it much harder for the UK to be broken up. And the EU would not want the 5th biggest economy in the world benefiting from being in the customs union indefinitely without any formal arrangement to pay for it or accepting free movement. So they do have a big incentive to reach a trade agreement, even if it could take ages.

Jeremy Warner** argued this in the Telegraph. He recalled Nixon's economic adviser saying something like "if something is unsustainable, it won't be sustained", in other words the backstop arrangements would eventually inevitably unravel. Even if it means breaking the treaty. Warner said the idea that the EU could force, or indeed want to force, the UK to stay in something it was determined to leave "is not quite right".

I'm not so confident that they wouldn't want to keep us in a situation causing us difficulty for quite some time, while they weakened our competitiveness across the board. But if we get impatient we could always just tear up the agreement. It might not do much for our reputation but in the limit it could be done.  Or we could just break all the rules and then, when we get fined, refuse to pay. What could they do? Chuck us out! I am calling this the "Brer Rabbit" strategy after the story of Brer Rabbit and the Tar Baby (no, youngsters, this isn't politically incorrect, look it up).

So, deal or no deal? Or, as Griff says to McFly in  Back To The Future "Chicken?"

Well, am I? I was in the 2016 referendum by voting Remain. Backing May's deal feels just as tawdry to me. But I think I'm 52-48 for it because to me the only alternative is no deal so, yes, I'm chicken.

On balance I would urge MPs to back it. It's this deal, no deal or stay. No deal would be disruptive and divisive. Staying would be even more divisive and would poison our political ecosystem for at a long time. It's already two decades since Major's "bastards" and I think staying would be regarded by a substantial proportion of the electorate as a gross betrayal for a much longer period. Normal politics would not just be resumed. And if we did stay in I've seen it argued*** that the damage to Britain's international reputation would be much worse than if we go ahead and leave.

It look's like Hobson's choice to me. May's deal is definitely the least worst option even if it doesn't feel very good.But, as Warner says, it looks as if she will be denied her plan because of lack of competence, leadership, statecraft, failure to manage expectations, or whatever. For me, "whatever" is  the peculiar and specific combination of circumstances including the hardline Brexiteer headbangers, the recalcitrant DUP handed the balance of power by May's election gamble, the opportunistic power seeking Marxist left and the stubborn Remainers all of whom it seems would prefer to chose chaos if they can't get exactly what they want. The only group there I can really understand is the Marxists, who've always seen chaos as a means to their end.

Worrying times.

* Prof Richard Mullender, Newcastle University Law School. Letter in Sunday Times 25 November 2018

** Jeremy Warner's column was in the Daily Telegraph on 16 November 2018

*** Remaining in the EU would come at a big price for Britain. The Spectator 27 November.

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