No Deal Is Better Than A Bad Deal

“No deal is better than a bad deal” was one of Theresa May’s catch phrases. Like “strong and stable government” and “Brexit means Brexit”. And like those earlier catch phrases, it seems to have come to the end of a rather short lifespan.

Yesterday (21 November 2018) the PM told parliament that the alternative to accepting her withdrawal agreement is “no Brexit at all”.

How she thinks that will come about she has not made clear. What is clear is that by accepting the withdrawal agreement she put to her cabinet last week, she has abandoned NDBTBD. Because a worse deal than that is hard to imagine.

Theresa May is no dullard. She is taking this deal to parliament because she thinks she can win. This is how she will do it.

Some Tory Brexiteers are holding off on writing letters to trigger a vote of no confidence in Theresa May as leader until she loses the parliamentary “meaningful vote” on her deal. Some (e.g. Dominic Rabb, James Cleverly) are swayed by personal loyalty to the PM. They are arguing that a change of leader would not change the parliamentary arithmetic, and it is the policy, not the PM that must change. Others are calculating that a vote of no confidence is more likely to be won after the deal has gone down in flames.

Brexiteers are heartened by the fact that it requires primary legislation to delay or cancel the 29 March leaving date under Article 50, and there does not appear to be a parliamentary majority for either of these options. In the absence of primary legislation, or a deal, no deal is unavoidable.

Most are taking the defeat of the deal as given. But that is a high risk strategy. If you add up everyone who has said they will vote against it, it should lose by a good margin. But while TM may not be a towering intellect, she is no dullard. She is taking this deal to parliament because she thinks she can win. This is how she will do it.

TMs statements in the commons yesterday have thrown ambiguity over the question of what happens in the event the deal is rejected. This opens the way for the Conservative whips to assure Leavers in private that the result will be no Brexit, while telling Remainers it will be a cliff-edge No Deal.

The PM will come away from this weekends negotiations in Brussels with baubles and trinkets to hang on the Future Relationship Document, designed to make it more palatable to everyone. But that document is not legally binding. It is literally not worth the paper it is printed on.

At the last minute, she will pull something out of a hat to suggest the UK will in fact be free to leave the backstop of its own accord. That will be painted as a major concession from Brussels, and will be designed to sway all but the most recalcitrant members of the ERG. But the hurdles to doing so will nevertheless ensure that it is very unlikely to happen. Tory leaders have form in whipping their party to support europhile measures against their better judgement, cf. John Major and Maastricht.

Finally, if the parliamentary arithmetic still looks doubtful, a deal will be done to get sufficient Labour votes to win the meaningful vote, perhaps by announcing a free vote.

May’s deal will be passed and then it will be too late. The UK will be stuck in a customs union with the EU for ever, but one in which we have no say over the rules. We will not be Norway, nor Canada, but Turkey. All trussed up in time for Christmas.

The message to conservative Brexiteers must be this: if you want No Deal in preference to May’s Deal you need a Prime Minister with the resolve to go down that route. If you want a SuperCanada free trade deal you need a leader with the guts to repudiate the backstop. Theresa May is not that leader.

This is not about loyalty. It is not about her determination (some would say stubbornness), or pluckiness in the face of adversity. It is about her resolve to deliver the Brexit that 17.4m people voted for, and that she herself promised in the Conservative election manifesto in 2017, in her Lancaster House and Florence speeches, and many times since. Theresa May either can’t or won’t now deliver that Brexit. She has to go, and it has to be now.

Backstop Blues

My last Brexit post on 8 July covering PM Theresa May’s Chequers proposal has rather been overtaken by events.

At the time of writing cabinet brexiteers appeared be supporting the proposal, but within 24 hours Boris Johnson and David Davis had resigned from the Government, doubting that it would deliver Brexit, and citing concerns that such a starting point was bound to lead to further concessions.

As I pointed out, the proposal as originally set out would not have involved staying in either the EU Single Market nor a Customs Union, and as such did not deserve to be called BRINO. However since July the proposal seems to have morphed into something even worse than that, putting the UK into a kind of zombie state, forever stuck in a twilight zone between membership and freedom, subject to EU rules but having no say in their making, paying into the EU budget and unable to make independent trade deals. And unable to leave without the EUs permission. Boris Johnson has recently called this the biggest failure of statecraft since Suez.

The reason for this is only partly due to the deficiencies of the original proposal, with its Heath Robinson mechanism for the UK to collect EU tariffs and then maybe refund them at a later date. The main reason the PMs position has degenerated so quickly into such a morass of contradictions is because of the so-called Irish Backstop.

It was a shrewd move by the EU to tie the UK in knots over the Irish border. What was one of the EUs biggest problems (how to collect its tariffs with no hard border) was magically transformed into our biggest problem (how to stop them putting up a hard border to collect their tarrifs).

Lawyers for Britain has a lengthy analysis of the legal implications of the backstop here. I will not go over that ground again. I want to take a step back and ask how the UK got into the position of accepting the idea of the Backstop, and what it can do get out of it.

The Backstop originated in December 2017 as part of the Phase 1 Agreement, which says:

“The United Kingdom also recalls its commitment to the avoidance of a hard border, including any physical infrastructure or related checks and controls.”

That commitment is said to arise under the 1998 Belfast agreement (commonly known as the Good Friday agreement). But you will peruse that document in vain trying to find it.  (The closest thing is the British Government’s commitment to “as early a return as possible to normal security arrangements” including “the removal of security installations” throughout NI. That would cover structures such as army watchtowers. It says nothing about customs posts or passport control at the border).

But a soft border has indeed come to pass, and everyone seems to agree it should be maintained, so let’s leave aside whether it is part of the 1998 agreement or not.

The crux is in para 49-51 of the Phase 1 agreement in which the UK agrees that “In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union” which “support … the protection of the 1998 agreement”.

Theresa May signed up to this in order to get the EU to move on to talks about a trade deal, apparently not noticing the trap that had been set: The UK is made responsible not just for not putting up its own hard border, but for “avoiding” one on the other side as well. The UK has accepted responsibility for the Irish side of the border.

And why would the Irish put up a hard border? From whence comes this mysterious force compelling a border that no one wants? No one wants to say. But the answer is clear. EU law requires member states to collect tariffs and check goods for compliance with EU standards at external borders. EU law will require Ireland to put up a hard border if post-Brexit standards are not aligned. (The UK will be under no obligation to put up a border. As an independent state we will be able to police – or not police – our borders however we like).

Except this is bluff. The EU knows it can’t force Ireland to put up a border. What if it tried and Ireland refused? Would it fine Ireland? Expel them from the EU? Or maybe Ireland would decide to leave? Indeed the EU has assured Ireland that there will be no hard border even if the UK leaves with no deal on 29 March 2019. But TM has unaccountably allowed her entire Brexit strategy to be hamstrung by this non-issue. Perhaps she feels that having agreed the Backstop last year she can’t resile from it?

It was a shrewd move by the EU to tie the UK in knots over the Irish border. What was one of the EUs biggest problems (how to collect its tariffs with no hard border) was magically transformed into our biggest problem (how to stop them putting up a hard border to collect their tarrifs). Because our politicians were stupid enough to agree that it was our problem. And now that it is our problem of course no solution will ever be good enough. By rejecting every technological solution we propose to their problem the EU can keep us in thrall forever.

But legally, the Backstop agreed in 2017 is not binding. Nothing is agreed until everything is agreed.

The UK just needs to say that since all three parties have said there will be no hard border in any circumstances there is no need for a backstop and it is off the table forthwith. Sorry chaps. And forget that Chequers nonsense, its Canada+++ or no deal.

Now, that border that is suddenly your problem again, would you like it with tariffs or without?

This is easily doable. But it is now clear TM does not have the brains or the backbone to do it. A new PM will be needed, as soon as possible, please.