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.  

Amendment wars and Corbyn wars

In the real world, UK business is tearing its hair out not knowing what on earth Brexit is going to look like. The EU warns its manufacturers about the dangers of sourcing parts from UK firms if the UK leaves the Customs Union, as Theresa May intends. Meanwhile the UK cabinet continues its arguments about which plan to choose out of two the EU has already rejected. And Remain twitter talked about Corbyn betrayal. While May is definitely in fantasy land, Remain twitter was also a little behind reality.

The Lord’s EEA amendment presented a great opportunity. But this opportunity died at a meeting of the PLP shortly after it was passed by the Lords. There are a significant number of Labour MPs who voted to Remain but who subsequently feel that some notice should be taken of those who voted to Leave. What this means specifically is that in the Brexit negotiations some attempt should be made to end or modify Freedom of Movement (FoM). Those MPs combined with a few Lexiters - Polly Toynbee thinks there are 60 odd - would have voted against the EEA amendment even if the leadership had backed it.

That, as they say, changed everything. There was no point in pro-EU Labour MPs putting a huge effort into changing Corbyn’s mind on the EEA amendment if it was going to fail anyway. All that Corbyn would have achieved if he had supported the amendment is to allow a distraction of Labour divisions on what hopefully will be a night of setbacks for May and Brexit. I think the Labour MPs who want to focus on immigration control are quite wrong to do so, but they cannot be ignored.

Voting down the EEA amendment alone would have sent a purely negative message to Labour’s overwhelmingly Remain supporting members and voters. So an additional amendment was put forward by Labour. Now this may have no chance of passing because ‘it comes from Corbyn’, but that tells us that the Tory rebels are also capable of putting party before country. It is vague, but it has to be so to keep the pro-immigration control Labour MPs on board. And I agree with Ian Dunt it is better to have than not.

As Ian says, it makes it more likely that Labour will vote against the final deal and that this vote is the crucial one if a referendum on the final deal is to become possible. I think some Remainers sometimes forget that the only way a referendum will happen is if parliament votes for it, and the only way that will happen is if Labour supports it because May will not. Finally the only way Corbyn will not be Labour leader when that decision comes is if he falls under a bus. So gradual pressure and persuasion is the name of the game. The more the Remain campaign resembles a get rid of Corbyn campaign, the more difficult it is for people within Labour to apply that pressure.

Unfortunately, press comment on anything to do with Labour increasingly resembles a pro or anti Corbyn debate. The fact that it was not common knowledge that there were a significant group of Labour members not attached to Corbyn who opposed EEA is quite understandable if you read the press comment at the time. Although that was the news at the PLP meeting, most reports just made it another Corbyn versus MPs story. That was what press coverage was like before the 2017 election, which helps explain Labour's dramatic increase in popularity during the election as voters saw for the first time what their policies were, and the media has now reverted back to this narrative. 

In my experience these MPs that want to try to end FoM for the UK or at least modify it tend to come from strongly leave voting areas. It is easy to say that they are being unrealistic in their wish, because the four freedoms are indivisible for the EU, but they are after all only reflecting the views of their constituents that the UK should try. Although we may strongly suspect the EU will say FoM has to go with being in the Single Market, this is a question that Theresa May has yet to ask because ironically the Conservative Brexiters are not very interested in controlling immigration.

Let me stress that I am in no way supporting these MPs refusal to back the EEA amendment - I support FoM - just as I think the leadership's reluctance to do so for different reasons is misguided. But to overcome objections to EEA you first have to understand where they come from. The idea that if it wasn’t for Corbyn Labour would be solidly behind joining the EEA is not only wrong, but it risks associating the Remain cause with the constant stream of attacks on Corbyn that can be found in the media on an almost daily basis, which in turn dilutes the pressure from Remain on the leadership and anti-FoM MPs.

Remain fundamentalism

An argument I have often heard is why are people talking about getting a softer Brexit (by staying in the Customs Union (CU) or Single Market (SM) for example) when what we should be doing is staying in the EU. There is a more extreme version of this which says that attempts to get a soft Brexit are dangerous, because they make the prospect of remaining in the EU less likely. I will call this more extreme position Remain fundamentalism.

I want to argue against Remain fundamentalism by imagining a soft Brexit that involved the UK staying in a comprehensive Customs Union with the EU and staying in the EEA. (For an excellent discussion of what the EEA is and is not, see Ian Dunt here, here and here - in that order.) [1] That is what the current UK withdrawal bill specifies as amended by the Lords, so let me call this the Lords’ Brexit. Compare this to the only hardish Brexit deal that can be done (assuming, as I think is reasonable, that parliament would never pass No Deal), which is something close to what John Springford and Sam Lowe have called the Jersey option: staying in the CU and the SM for goods but not services, perhaps allowing some UK flexibility on freedom of movement.

We have no idea whether the EU would accept either option, because the UK government has been wasting its time (which given they are supposed to be running the country on our behalf is also our time) trying to choose between fantastical solutions to the Irish border problem that the EU will not accept. But for the sake of argument suppose that May ignores her Brexiters, and perhaps with parliament’s help chooses something like the Jersey option and that the EU agrees to it, or instead that May has to go with the Lords’ Brexit and the EU (and EFTA) agree to it.

The Remain fundamentalist argument is that because the Jersey option does more economic damage to the UK than the Lords option (because the EU has a comparative advantage in exporting services, and immigration from the EU is beneficial to the UK), it is more likely that parliament would grant a referendum on it and that people would reject that deal in favour of staying in the EU. I actually think the opposite is the case, We are much more likely to see parliament grant a referendum if we go for the Lords’ Brexit, and that people would reject the Lords’ Brexit in favour of staying in.

The case for a referendum on the final deal is much more clear cut if the deal is the Lords’ Brexit, because the Lords’ Brexit has virtually no advantages compared to EU membership and a clear disadvantage. In practice being in the EEA would mean accepting rules adopted by the EU with no say on those rules. In short, we gain nothing by having no say on the rules we have to obey. I cannot imagine any politician being able to get people to vote for the little bit of wriggle room and influence being in the EEA gives you compared to the having a real seat at the table.

In contrast, with the Jersey option things are much more complex. There will be perceived advantages of this option compared to staying in, such as greater control over immigration. You can be sure that the more Mrs. May can fudge the agreement such that she can pretend these advantages are there even when they are not, she will.

Now add in a powerful group of Brexiters. They would angry that they did not get the hard Brexit they want, but in the Jersey option they would still see hope in ambiguity. More importantly, with the Jersey option there would be plenty of meat for this group to work on, including immigration of course. But with the Lords’ Brexit it is hard to argue a strong case for why this is preferable to be in the EU, even if you are a Brexiter politician or newspaper.

I would be the first to admit that these arguments are not clear cut. But the Remain fundamentalist position only makes sense if you can be sure that a harder Brexit makes a referendum more likely. To me, at least, it is not obvious that it does. The more you can eliminate the economically damaging but superficially attractive aspects of Brexit, the more chance people have to see that the whole thing is a complete waste of time.

[1] There are a lot of differences between being part of the EEA and what is called BINO: the UK being in the Single Market and Customs Union and everything else to do with the EU except being absent from its political structures. I am assuming that there would be no problem being in the EEA and a CU, that agreements with the EU would also be made on agriculture and fisheries that would at least allow a soft Irish border, that the EU and EFTA would allow all this and so on.