Winner of the New Statesman SPERI Prize in Political Economy 2016

Monday 11 June 2018

Parliament has to start directing the Brexit negotiations

The moment it became clear that the EU would give full backing to Ireland’s wish for no hard border, and on the assumption that the UK side would not allow a sea border between Northern Ireland and the rest of the UK, it was clear what the range of possible deals between the UK and EU would be. The maximum possible change that would prevent the need for a hard border is that the UK stay in the Customs Union (CU) and Single Market (SM) for goods, while not accepting Freedom of Movement (FoM): the Jersey option. The minimum possible change is that the ‘transition’ became the final deal, with the UK staying in the CU and complete SM including FoM: the BINO (Brexit in name only) option. The final deal between the EU and UK has to lie somewhere between this minimum and maximum.

It is also where any final deal should have been anyway, given how close the referendum was. All the evidence we have suggests that those who voted Leave do not want a deal that will make them significantly poorer, which means that the final deal should be one that does the UK little economic harm. The negotiations should have focused from the start on what limits to FoM were possible at what cost in terms of (partial) membership of the SM. These negotiations should have taken place informally before Article 50 was invoked to give the UK some bargaining power.

Instead Theresa May allowed the whole process to be hijacked by the Brexiters, who treated the referendum like an election win with no manifesto. They believed they owned the referendum victory, and so acted as if they had the right to decide what Brexit means. As a result, we have wasted time talking about impossible deals, rather than negotiate within the space that a deal can be done. It is in fact worse than that. May and the Brexiters, by refusing to let go of their fantasies (about a technological solution to the border problem or about the EU caving into their wishes to be part of the club without signing up to the rules) have split the negotiations into two parts: the preferred deal and the backstop.

As has now become clear, the idea of a backstop is predicated on there being a customs border between Northern Ireland and the rest of the UK. The EU should never had allowed this device because they should have understood that such a border would be politically impossible. Instead they took far too seriously May’s red lines, which they interpreted as the UK wanting a FTA which would in turn require a border in the Irish Sea to avoid a hard land border. They made the mistake of thinking that because this was obvious to any objective observer the UK side acknowledged this fact. May encouraged this belief by appearing to agree in December to a sea border, only to be pulled up at the last minute by the DUP. In short, the EU made the mistake of thinking it was negotiating with a rational counterpart, rather than one that was at war with itself.

This is the context of the parliamentary votes on the Lord’s amendments on 12/13th June. Parliament is, in effect, trying to manage the negotiating process because those conducting the negotiations so far are getting nowhere. Some of these amendments attempt to direct the government towards negotiating in the relevant range (the CU amendment proposed by Lord Kerr), and to give them the space in which to do so (by removing the date of exit which was inserted into the bill by May as a way of appeasing her Brexiter colleagues or Paul Dacre). I suspect May would privately welcome both amendments if she has any understanding of what is going on.

The EEA amendment appears to suggest a specific point in the range of possible deals, which is why the Labour leadership and some of their MPs dislike it. I think their attitude is a mistake. The way to think about the EEA amendment, which is only expressed as a negotiating aim, is to steer the government towards the possible range of final deals, which has to include staying in the Single Market for goods. If this is not passed we will just waste more time as May fiddles around trying to inch closer to the possible range without the Brexiters throwing their toys out of the pram. [1]

There is also a purely short term political reason for the opposition supporting the EEA amendment. As I noted above, May will probably find it a relief to be directed to stay in the CU. She is already at the stage of realising that the UK staying in the CU is essential for a deal. The Brexiters will huff and puff, and Fox may even resign, but their anger will be directed at parliament more than May. The EEA amendment in contrast is likely to cause far greater discomfort in government: it is difficult to see how any Brexiter cabinet ministers will suffer this. So in terms of damage to the government, EEA inflicts much more than the CU.

May will also not welcome what is perhaps the most important amendment, proposed by Hailsham, which gives parliament the ability to direct the Prime Minister if the negotiations fail or the deal is voted down by parliament. However she has only herself to blame if this is passed, in particular for threatening no deal if parliament rejected her deal. By allowing the Brexiters to hijack the negotiations process, it is not surprising that parliament should decide that they need to start calling the shots. As Labour seem quite likely to reject a deal if she manages to achieve one, this amendment is crucial to minimise the subsequent chaos. The amendment is not quite parliament taking back control of the negotiation, but it does mean that May will have to start taking directions from parliament rather than the Brexiters. That has to be good for democracy in the UK.

[1] Nor should the EEA be seen as something that is inflexible. It already contains a brake on immigration, where countries can take "appropriate measures" if serious economic, societal or environmental difficulties of a sectoral or regional nature arise and are liable to persist. There are lots of other issues that would have to be addressed if the UK signed up to the EEA outside the EU, which means there will be the opportunity to negotiate around issues to do with immigration or state aid.

Postscript (13/06/18) The government did not lose a single vote yesterday, and it will be surprising if they do today. Rebel Conservative MPs did get some concessions which will hopefully allow them to have some influence over a situation where MPs vote against the final deal or there is no deal, and the rebel numbers were increased by the resignation of Justice minister Phillip Lee. But they completely failed to start directing how May conducts the negotiating process, which leaves the Brexiters as a constant drag on May's efforts to start negotiating something that the EU might accept.

At the end of the day, Conservative MPs have put party before country. Brexiters have hijacked the negotiation process, and Conservative MPs are content to let that continue, even though time for a deal is running out. The bill they voted on yesterday and today involves a substantial transfer of powers from parliament to the executive, and Conservative MPs do nothing about it. A rabid right wing press encourages far right nutters to murder one MP, attempt to murder another, with one Conservative rebel requiring armed guards because of threats, and the same Conservative MPs do nothing about it because that press helps their party. Just as in the United States, nowadays a pluralistic democracy is unsafe when the main right wing party is in power. Based on this record, I cannot see Conservative MPs voting against any final Brexit deal, which in turn means the chances of a second referendum - always slim - have all but vanished.  


  1. "In short, the EU made the mistake of thinking it was negotiating with a rational counterpart, rather than one that was at war with itself."

    My opinion is that the EU understood very well what it was doing, and is now going to force May to keep its word with it because:

    A) If it wins, NI will remain effectively part of the Single Market, an huge humiliation for the UK, a huge victory for the ROI and consequently for the EU;

    B) If it loses, it's no deal/crash out brexit, which is extremely likely to be very damaging for the UK; the UK will then come cap in hand to Bruxelles, and all will be blamed on the UK because May did, in fact, agree to the "backstop" thingie.

    So for Bruxelles it is a win-win, for London is a lose-lose situation.

    I personally am a very pro-EU guy and, if I was a briton, I would have been a remainer, however this doesn't mean that one should keep this idealised view of Bruxelles: They certainly know how to wage their trade wars, and now they see the UK as a competitor, so they will squueze the UK if they can.

    By MisterMr

    1. May said she guaranteed no hard border. The UK has been defining it as no visible infrastructure on the border. The EU has not.

  2. ‘The negotiations should have focused from the start on what limits to FoM were possible at what cost in terms of (partial) membership of the SM.’ Apart from making an exception for Northern Ireland, hasn’t Barnier specifically ruled this out?

  3. I disagree with some of this. There was never any intention of the EU27 to discuss prior to article 50. I think that was clear from the outset and its wrong to suggest with hindsight it was possible.
    I dont blame the EU, they quite happily set the trap of the sea border. Only a shower of idiots and incompetents would have reached December with no thought on the so called red lines would impact Ireland. The EU threw a lifeline, we grabbed it.
    I think you let Labour off the hook, they seem to have some of the magical thinking about trade deals etc too and doing a deal on the 4 freedoms. What is clear now and was obvious at the outset, is that big as we are economically, neither the German car makers nor the proseco vintners are going to push for a special deal.
    The leavers in parliament are divided, May will win her votes and we continue our lively chat to ourselves. The EU is now fully preparing for us to crash out. There is no solution to the Irish border and the red lines, its stupid to pretend there ever was. In this Rees-Mogg is at least correct, he wants his BREXIT and is prepared to put a border in Ireland to get it; whatever the consequences in Ireland and for the UK economy. I suspect only in October, will this dawn on May, timid remainders and the Labour leader by then its all too late.
    It would be at least democratic if we decided to tumble out with no deal. What is depressing is that the clock and paralysis will achieve it.

    1. The EU would not negotiate before Article 50, but the Tories could have agreed a common position before. They could also have done the practical preparations for a "no deal" Brexit to make customs work properly.

  4. To be fair to the EU, the Good Friday Agreement creates the difference in governance between NI and rUK. The establishment of the North/South Ministerial council creates a mechanism for RoI to have a say in affairs north of the border.

    The GFA is a fairly high-level document and in as much as it says anything about RoI, NI, and the EU it says that NI cannot leave the EU unless RoI also leaves the EU at the same time. So it is hard to see what offer the EU can make that respects the GFA, allows the UK to leave, and keeps the RoI in the EU.

    The whole process has been in the control of Parliament in that they voted 6:1 to have a referendum. Hard line Remainers like Lammy, Soubry et al who voted for the referendum have some serious questions to answer on why they voted to put a proposition to the UK which they believed was fundamentally impossible - this is a clear dereliction of duty. Ken Clarke, notably voted against having a referendum.

    And as for "those who voted Leave do not want a deal that will make them significantly poorer," this is just one part of a two-part argument that keeps cropping up, that people vote for short-term economy benefit, and the best policy for short-termeconomic benefit is staying in the EU, so when people voted to leave the EU, what they really voted for was to stay in the EU.

    Most people I know voted to Leave because the progressive loss of political control that would inevitably result from being in the EU would inevitably lead to long-term worse economic outcomes, as seen from the fact that the UK was alone in European economies in experiencing positive GDP growth and negative wage growth.

    Parliament can do whatever they feel is appropriate, but there is a real risk to the integrity of the political process in the country at the moment if they deliver a result that looks like Remaining in the EU through the back door. Political commentators should have seen enough shocks in the last few years to realise that predicting the future is a mug's game and should be wary of making assumptions about how people will react to a perception of their vote having been requested and then ignored.

    1. Dipper unfortunately you have misunderstood the GFA. I'm a Northern Irish Remainer who did it in school.

      The GFA doesn't say anything about NI having to get RoI's permission to leave the EU and I wonder which part makes you think so. Especially due to the Miller case at the Supreme Court.

      The NSMC is allowed to implement EU law within its purview, that doesn't impose a duty on the UK to stay in the EU.

      A hard border is allowed regardless of the creation of the NSMC. This is because the NSMC only has powers over matters which are devolved to NI. Tariffs, trade and immigration are matters reserved to the UK Parliament, they are not devolved.

      So although the NSMC can do cross-border cooperation in things like agriculture, it's excluded from deciding anything on the border itself by the GFA's own terms.

      Some ppl might be thinking of the right to dual citizenship too. That's no help either, since it neither guarantees free movement of ppl or exempts anyone from the differences in VAT or excise duty (you can't smuggle tobacco or diesel), and in future you won't be able to evade tariffs by leading the GFA.

      The Irish Government is desperate to keep using GB as a tariff-free land bridge for their trade with the continent, far more important than trade with NI. But they don't say a hard borser would violate the GFA, and they won't be taking the UK to court for violating the GFA because they know they would lose. Fintan O'Toole and the Irish Economy blogger Kevin O'Rourke think the GFA bans a hard border, they are wrong and should learn to read.

      When Remainers raise the border issue, they may be helping force the UK govt to stay in the CU and SM, but they may also cause a no-deal Brexit with an automatic hard border by accident.

  5. The resignation of Fox would be of no consequence whatsoever. The man is utterly useless....

  6. "The moment it became clear that the EU would give full backing to Ireland’s wish for no hard border..."

    Define your terms. Boris Johnson is rarely right, but he's right about this: it's a non-problem. Can we manage the situation such as to satisfy any reasonable person or organisation, including the WTO? Yes we can. Can we prevent Ireland being used as a Trojan horse by those who can't quite see the Agora from Mount Olympus? No we can't.

    "It is also where any final deal should have been anyway, given how close the referendum was."

    Yeah. And if it had gone 52/48 the other way we'd have had changes in a Eurosceptic direction, so as to recognise the wishes of this 48!

    The Brexiters "..had the right to decide what Brexit means". Really? Remain spent the entire campaign explaining that Brexit was necessarily a "hard" Brexit.

    We tried. Back in the 90s they agreed to "subsidiarity", and then instantly ignored it. They gave Blair an opt-out from the Orwellian "Charter of Fundamental Rights", and then ignored it. They gave Cameron hee-haw on the negotiation. They've ignored referendum defeats in other countries. They insisted on the Euro.

    And now - Italy, Brexit, Visygrad - it's blowing up in their faces.

    1. "Yeah. And if it had gone 52/48 the other way we'd have had changes in a Eurosceptic direction, so as to recognise the wishes of this 48!"

      You took the words right out of my mouth. SW-L said something similar previously that the losing side had the right to be compensated. I'm a Remainer and even I know the govt manifesto is to implement the result, it's politically hard for them do otherwise, and whether it's a hard or soft Brexit is at their discretion.

      I'd like to see this logic applied to a referendum result for Scottish independence or a united Ireland.

  7. Hi, I'm that Labourite Remainer from Northern Ireland who keeps complaining. Your posts on this continue to frustrate me.

    While we need to avoid a cliff edge which could cause a recession, there is no need to avoid a hard border in Ireland as far as the UK is concerned.

    That demand has always been ignorant and/or tendentious, whether it comes from the Republic (which wants to avoid tariffs when it uses GB as a land bridge to the continent, and when it exports to GB itself, and is far less concerned to avoid tariffs with NI!), British Remainers who wrongly think the Good Friday Agreement requires it or that terrorism is a real risk and who have a vested interest in seeing us stay in the CU and SM, or Northern nationalists (ditto, with flag waving disguised as "rights" thrown in as usual).

    Neither the Republic nor the EU have any business controlling the UK's trade policy if it leaves the EU, which is what the border means.

    Appallingly. it's escaped most commentators' attention that there isn't agreement over the term "hard border". The two sides have not agreed what it means and Barnier has refused point blank to say!

    Customs controls, miles from the border itself, are perfectly doable as the Irish Revenue and expert witnesses from other countries have stated, though not on the UK side within a year because our new computer system is a shambles. The southern system will be fine because it can be scaled up enough. Therefore, all we need is a suitably long transition period. Unfortunately it will be longer than necessary because Varadkar has ceased his cooperation with our officials on this matter (you can guess why).

    The GFA only allows North-South cooperation on devolved matters. While this is cross-border stuff like agriculture, the shape of the border is NOT devolved, because tariffs, immigration, and trade itself are not devolved matters. Insistence on a "soft" border (and you'd better define *that*) would deny the UK's rights under the GFA to control the policy areas which are reserved to Westminster. The Republic only has the right to cooperation on, say, agriculture to the extent it is devolved and subject to the UK govt's control of tariffs, immigration, trade etc. And of course we have the right to leave under Article 50, which the Republic ratified, by a referendum.

    The ignorance and brinkmanship over this has maximised unnecessary nationalist discontent in NI politics, brought a no-deal Brexit closer, and made the need to do the necessary practical preparations far less obvious to even the Remainer public on the grounds that a hard border "can't" happen.

  8. As you say, any deal acceptable to the EU has to avoid a hard border in Ireland: which greatly constrains the possible content of the deal (CU plus most of the SM). The Brexit fanatics would probably betray the Ulster unionists to get what they want, with NI cut loose and inside the SM while the rest of Little Britain is gloriously outside its strictures and free at last to import chlorinated chicken. Can you really see a Commons majority for giving Sinn Fein what it wants?

    At the moment, May's government, if you can call it that, has no negotiating strategy on the Irish border question. By strategy, I mean a plausible, joined-up position that respects the EU's red lines and could, if all goes well, secure any kind of deal and avoid a hard crash-out.

    I'd like to think the Commons would reject "no deal". May would then have to go on bended knee to Brussels for an Article 50 extension.

    Call this the Canossa option. In January 1077, the Emperor Henry IV had to wait three days outside the town gates in a blizzard before the Pope would receive him. Three years earlier, King Henry II Plantagenêt had to go further in his penance for murdering Thomas à Becket: he submitted to being flogged by the monks in front of Canterbury cathedral. At least it was July so he didn't have to face the wrong kind of snow. These were hard and proud men, but accepted the humiliation as politically essential.

    1. That all depends on what you mean by "hard border". There isn't an agreed meaning.

  9. Your last paragraph really stands out. I have no idea why you can say in good conscience that you think the right wing press encourages murder over the EU or immigration. Here in Northern Ireland the News Letter and the Irish News are full of slanted stuff about how the other side has it in for unionists or nationalists respectively. No one moans that "MPs do nothing about it", because nobody thinks the newspapers encourage murder.

    The IRA murdered several Westminster and Stormont MPs, and to blame nationalist newspaper editors or columnists for that would be an outrage. Nobody commits incitement to murder in the papers. And Jo Cox was 1 murder victim in 25 years of tabloid hysteria about the EU.

  10. I support media ownership controls, perhaps a statutory right of reply, etc. But your hysterical comments are unbecoming of someone who says he wants to defend pluralist democracy. Pluralism means right-wingers and everyone else can talk bollocks in the papers, and democracy means the government can fulfil a manifesto promise.

    If you censor the press, to make them less "rabid" in your subjective opinion, it is not only un-pluralist but it hands a weapon to the right wing. They will be able to crow that "rabid" liberals in the Guardian do something to "encourage" terrorist attacks etc and therefore there should be new laws to restrict the influence of the press, in a way they will design to hurt liberals and the left, of course.

    If you let the state restrict political discourse then the first victim of this will be the left.

    No idea why "pluralistic democracy is unsafe when the right is in power" -- the Tories won a majority before the referendum, they had a very pluralist freedom for their MPs and cabinet to campaign on either side like Labour in 1975, and might I remind you most Tory MPs campaigned for Remain as did the vast majority of ministers?

    They also spent £8 million on a pro-Remain government mail shot, a far from a pluralist use of taxpayers' money, but not to the benefit of Leave.

    And now Tories online can use your blog post as ammo to support their usual line that the British left thinks only its own opinions can be expressed, that it's undemocratic when they don't win, and so on. Well done.

  11. A Referendum with no constitutional weight has become the most powerful moment in our recent history (“the will of the people”),
    Our parliament in our representative democracy cannot be allowed to force the hand of a government which was formed from the ashes of a cunning plan to ignore the fixed term parliaments act and fought an election on a Brexit stance which they lost and therefore lack a mandate to behave this way.
    They’ve completely lost touch with the need for good and sensible government, and live on soundbites, self interest, and fear.
    Every day feels like a nightmare.

    1. The Tories didn't win a majority (like 2010) but the DUP were also elected on a manifesto of going ahead with Brexit. Therefore, there is a Commons majority to proceed, even if Labour had acted differently.

      And it's not the most powerful moment in our recent history, that was the Great Recession and the failure to stimulate a full recovery from it.

  12. The southern system will be fine because it can be scaled up enough. Therefore, all we need is a suitably long transition period. I would have been a remainer, however this doesn't mean that one should keep this idealised view of Bruxelles: They certainly know how to wage their trade wars, and now they see the UK as a competitor.


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