The unanswerable democratic case for a second referendum

Much discussion, including my most recent post on Brexit, argues that a second referendum is unlikely on political grounds. But that is very different from the question of whether there should be a second referendum. That is what this post is about.

A few days ago the Guardian published a piece by Simon Jenkins arguing that there should not be a second referendum. The argument is essentially this. The people have already voted to leave, and “effectively” delegated to government/parliament the choice of how we do it. All we should be talking about now is how to get the best deal. He writes:

“There are no rules for referendums because they do not feature in any constitutional edict, but convention dictates a second one would be justified only if the circumstances of the first have radically changed. The Danes (in 1993) and the Irish (in 2009) held second referendums, after renegotiations, to stay in the EU. Circumstances do not include second thoughts.”

There are so many problems with this argument that it is difficult to know where to start. Let me begin at the end. Now occasionally second thoughts arise through deep contemplation about your original decision, but most of the time second thoughts arise because circumstances change. The information people have about what leaving means has changed. Democracy is all about letting people change their minds because circumstances have changed. [1] 

Jenkins implies that holding a second referendum after a renegotiation is fine. What on earth does he think has been going on for the last year and a half. The conceptual difference between a negotiation and a renegotiation is zero. People may well have voted Leave because they believed, as they were encouraged to do, that the UK could get all the benefits of the single market after leaving. Finding out this isn’t possible is not some whimsical second thought, but exactly equivalent to an agreement being renegotiated as far as voters are concerned.

Jenkins does concede that “there might, just, be an argument for a referendum after a final deal, purely to confirm it.” You have a choice, as long as you say yes. This accepts the absurd framing of the government that the referendum fixes the decision to leave for all time, whatever the circumstances. There are no conventions that say that. The obvious choice to put to people once the deal is done is whether they still want to leave, now that the best feasible terms for leaving as approved by parliament are known.

The argument that this must be the convention because we have not had a referendum since 1975 is nonsense. The first point to make about 1975 is that we had already joined, so the negotiation had already been done. Second, there was a sort of understanding among politicians that we should only have another referendum if the nature of the EU changed, but (a) there was no referendum after the Single Market was established, and (b) we had a referendum in 2016 years after any conceivable change. So as conventions go this one has been honoured in the breach, for the straightforward reason that it makes little sense. Information about the benefits of being in a club of nations changes for many reasons besides treaty change. I think it is best to forget about conventions and just use common sense. [2]

The vote in 2016 was pretty close, and was based on no clear understanding of what leaving would actually involve. So common sense says that the democratic thing to do is revisit the question once the terms are known. People should be allowed to change their minds. If people are not allowed to do so, and must be bound by that one vote for a generation, then we are no longer a democracy. 

If you disagree with that, imagine the possibility that the UK ends up effectively agreeing to stay in the single market and customs union, accepting to all intents and purposes free movement and the authority of the European Court. Given the Irish border issue, and the economic advantages for the UK in staying in the single market for services, it is quite possible this is where we will end up. If this had been the choice in 2016, do you really think voters would have chosen it? Of course not, because we give up a say over the rules we have to obey. [3] That possibility shows that the case for a second referendum is unanswerable. [4]

A popular reposte to the case for a second referendum is why not make it the best out of three. An alternative way of putting it is that the elite wants to keep holding a referendum until voters give an answer they like. But this is nonsense, because in reality what is being argued by the Brexiter elite is not to hold a second referendum because it would probably give the wrong answer from their point of view. Clearly we will only have the chance of one more referendum before we leave: what can be wrong about giving people a second say on a decision that will profoundly influence their lives?

Unfortunately, because of the transition period that both sides are so keen on, we will not be able to have a second referendum on the final deal, to confirm or otherwise the first, because the final deal will be done after we have formally left. There is no inevitability about that, because extending the 2 year period for Article 50 is far easier than any transition period. But, as I have argued before, this transition is a democratic affront, precisely because it prevents a second referendum on a final deal. The only democratic response to that affront is to hold one anyway before we leave, on the basis that we now know a lot more about the final deal than we did in 2016.

If the polls were showing a larger majority in favour of leaving, then there might be a case that a second referendum was unnecessary, but of course polls are now consistently showing a majority to Remain. Insisting that despite this the 2016 referendum, which was based on almost zero knowledge of what leaving would mean, and where the majority was only 52%, denies any chance of a second referendum is, quite simply, a profoundly anti-democratic act.  

[1] We have fixed terms for governments for continuity, but Brexit is different: an irrevocable decision which will be with us forever. That makes it imperative that we allow people to change their minds before we leave.

[2] The underlying reason why it is a waste of time talking about conventions is that conventions are simply a cover for political expedience. In the UK at least, we have had referendums when the government is hopelessly divided about what to do. 

[3] Jenkins thinks this possibility is fine because “any trader can influence rules”. Not if they are outside the EU. The naivety here about the influence of the UK outside the EU is worthy of any Brexiter. I have argued that a Norway type deal for the UK is unlikely to be sustainable in the long run precisely because our influence on the EU and world stage generally once we leave will be much diminished.

[4] Some people object to a second referendum on the grounds that referendums are generally a bad idea. That is not a debate I want to address here, so it is best to take the statement that the case for a second referendum is unanswerable as contingent on parliament approving any final deal because they do not think they can override the 2016 referendum. 

The problem with a second referendum

My last post upset a few people who are campaigning to reverse Brexit, because I was so pessimistic about the chances of a second referendum before we leave in early 2019. They mistook my pessimism for defeatism. I would never suggest that those fighting for a second referendum, or an end to Brexit by any other means, should give up, just because the outlook looks bleak. You can never be certain about how things will turn out.

The path to a second referendum is clearly laid out by Andrew Adonis in this Remainiacs Podcast. Two things have to happen. First Corbyn needs to start arguing for a second referendum, which Adonis thinks he will do in the summer or autumn. I think this is conceivable, although far from certain. I would merely note that Remainers who declare that Corbyn will never do so because he is a Brexiter at heart are not only wrong, but are therefore by implication far more pessimistic about Brexit than I am, because this first stage is a necessary condition if a second referendum is going to happen.

The second thing that has to happen is that a majority of MPs write in the need to hold a second referendum as an amendment to the Brexit bill, a bill which thanks to rebel Conservative MPs is now a requirement. Yet there is a world of difference between demanding a proper bill before leaving, and demanding a second referendum. The Brexiters will ensure the government throws everything into preventing a second referendum, including perhaps its own survival. As I said in that earlier post, I cannot see it happening in the current environment, and this is the source of my short term pessimism.

One of the reasons I am so pessimistic is related to an earlier post, where I talked about how anti-democratic the concept of the transition period is. I could imagine at least some Conservative MPs arguing for a second referendum when the exact nature of the final deal is known. The first referendum was a decision to put an offer in for a new house: now the surveys and council searches are in we can take a final decision.

But, because of the transition period, what the final deal will be remains unclear, at least to most of the media and the public. The transition allows the Brexiters to continue to live in a fantasy land, where the final deal keeps all the advantages of being in the EU without any of the costs. I have argued, as have others, that the first stage agreement restricts the scope for what the final deal could look like, but this is denied by the government who are still busy eating cake. There is no reason for this to change in the next year, because the focus will be on the government’s futile attempts to avoid transition on EU terms. In this sense a second referendum will be just like the first: the realists will argue as hard as they can for reality, but reality will either not get a look in with the right wing press, or be balanced against fantasy by the broadcast media.

To threaten to bring down their government by voting for a second referendum, rebel Conservative MPs need a cast iron moral case. Alas because of transition they cannot argue that the second referendum will be a vote on the final deal, because the Brexiters can still claim the final deal will be all things to all men and women.

The Next Referendum Question

I wrote in January about the “unanswerable case” for a referendum on the Withdrawal Agreement (it is not a second referendum but nor is it a referendum on the final deal), and I have not changed my mind in the slightest. To say such a referendum would not be democratic is self-contradictory. I personally would be happy for parliament alone to call a halt to Brexit, but if MPs believe that to do so would be seen as undemocratic then we have to have a referendum on the Withdrawal Agreement (WA).

Does it bother me that this will not be a referendum on the final deal, because the WA is likely to be vague on the final trade arrangement? No, for two reasons. First a referendum on the final deal will be meaningless because we will have already left (something which I do think is undemocratic). Second, we now have a huge amount of information compared to 2016.

We now know that there are essentially two types of deal with the EU we can do. The first is some kind of FTA (free trade agreement), where Northern Ireland would stay in the Single Market for goods and Customs Union (the Irish backstop). Theresa May says that is something no Prime Minister could agree to, but more worrying from my point of view is that we would be a lot poorer as a result because we would do less trade with the EU and many of the third countries that currently have trade agreements with the EU. Those who tell you that getting our own trade deals with those third countries would be a piece of cake are the same people who told you that we held all the cards with the EU.

The second option is that we stay in the Single Market and Customs Union, but have little say in how those emerge. That avoids the need to implement the Irish backstop, which is why it will be the most likely option that May will agree to in the end. The economic hit from that would be much smaller than the first option, but we end up with substantially less sovereignty than if we stayed in. May would like to persuade the EU to leave open the idea of extending the backstop to the whole of the UK, meaning we stay in the CU and SM for goods only, but I think the chances of the EU agreeing to this at the end of the day are slim, and as geography is as important to services as goods we would be worse off as a result.

This choice was not clear to even experts at the time of the referendum, and it was certainly not clear to voters. The campaign hardly mentioned Ireland (and when it did, it did not imagine a backstop), and voters were told there would be more money for the NHS (there will be less), Turkey was about to join (it is not), EU immigration hurt the public finances (it does the opposite), we held all the cards in any negotiation etc. The Remain side may have exaggerated the immediate economic hit, but two years later GDP is around 2% lower as a result of the uncertainty created by Brexit and the fall in Sterling has in addition cost each household an average of £400 per year. That is fact not Project Fear.

So the case for a referendum on the WA is overwhelming, given all the extra information we have. That nearly all this information has been negative for Brexit is reflected in the polls. So what should the referendum question be? I do not think No Deal should be an option. No one seriously campaigned for No Deal in the first referendum, and only a minority of Conservative MPs (60?) support it. The obvious question to ask is do you want to accept the WA negotiated or do you want to Remain in the EU. This does not disrespect the original referendum vote any more than the 2017 general election disrespected the 2015 one.

John McDonnell on the Today programme yesterday (here, 2:10 hours in) seemed to suggest a question like do you accept the WA, yes or no? Some took the 'no' as implying No Deal, but I doubt that as Labour would be campaigning for no and have already said No Deal is not an option. Instead it would be a suggestion to reopen negotiations. But if Labour cannot force a General Election, and with May saying this is the best deal she can get, what is the point? If you think a no result would put pressure on the EU, see what happened after the Greek referendum in 2015. I think many voters would realise this, and just vote for the WA to speed the end of the paralysis in government that Brexit had created.

Not only does his suggestion make little sense, but it was politically disastrous, given the overwhelming support for a referendum that included the Remain option among Labour voters and members. Just after a composite motion had been agreed which is itself a compromise between Remain members and the leadership, he appears to undercut it at a stroke. The words he should have said came from Starmer later in the day.

So the referendum on the WA should be a simple choice between accepting the WA as negotiated or cancelling Article 50 and remaining in the EU. What about all those working class Labour voters in the towns of England and Wales who will feel betrayed if we stay in the EU? Those people were sold snake-oil, and you do not expose snake-oil by prescribing it on the NHS. Instead you make sure you enact policies that reduce the demand for snake-oil, and hopefully that is what a future Labour government will do.

Brexit Endgame: second stage (which is unlikely to end with no deal)

We have entered the stage where everyone seems to be worrying about a No Deal Brexit. It was inevitable that the EU would use this as a threat - that is the whole point of the A50 process. Rather less obvious is that the UK would do so as well: we have master tactician David Davis - this is going to hurt us more than you so you should be very afraid - to thank for that. But to be fair, appearing irrationally stupid enough to contemplate No Deal is about the only weapon the government has in its negotiations with the EU. So both sides talk up its chances, which naturally leads everyone to panic. If you want an antidote, this post is for you, although please bear in mind that what follows is about probabilities not certainties, and you can never rule out the possibility of this government doing something really stupid.

Stage one, recounted here, was the break with the Brexiter hardliners to re-engage with the EU after six months backtracking from the December agreement. I call the second stage as what Theresa May has to do to get over the March 2019 hurdle that sees the UK exit from the EU. [1] Unfortunately, given parliament’s failure to provide any guide to the executive, our only clue about what this entails is to think about what is in Theresa May’s interests. (For May, unlike the Brexiters, there is no Brexit ideology we need to worry about, so its interests rather than ideas that matter.)

May’s primary interest is to get a deal. She does not want to go down in history (and down is where she would go if there was no deal) as the Prime Minister who led us to a disastrous No Deal Brexit. Her secondary interest is in perpetual Brexit, by which I mean negotiations that continue to keep Brexit in the news so that a majority of Conservative MPs dare not allow an election for leader and so she stays as PM. These interests tell us what May will try to do.

Perpetual Brexit requires leaving most of the negotiation of what the final relationship will be with the EU until the transition period. That might seem odd, given that this final relationship is what the Chequers document is all about, but see below. I think the EU will probably be broadly OK with that (although I do not think they should be [2]), as long as May agrees to the Irish backstop. As I argued here, May will do all she can to convince the EU that it is politically impossible for her to agree to this backstop. But the likely outcome is that she will fail, and her interests therefore require that she does accept the backstop to get a deal.

The reason why accepting a backstop is politically difficult for her is that any deal that includes it is likely to be opposed by both the DUP and Brexiters. If Labour vote against the final deal then she does not have the votes in parliament for the deal. A potential way around DUP opposition is to convince them that the UK during transition will negotiate a deal that makes the backstop redundant. (For some speculation on all this, see Peter Foster here.)That is a key reason for the Chequers document. But the DUP are as unlikely to accept her word as the EU, so they would require some form of words in any EU agreement that could be held as a commitment.

In passing, if you have a sense of deja vu about all this, you are not imagining anything. This is what happened at the final stages of the December agreement.

The problem with this approach is that anything that would make the DUP happy is likely to worry Brexiters. The more that May says the UK will stay close to Europe so the backstop will never happen, the more the ERG will talk about becoming a vassal state to the EU. It looks, at the moment, like an impossible position. But many things can happen between now and parliament’s vote on any deal with the EU, so I think it will be foolish to discount the possibility that she might just succeed. If she does, we have what I’ve called perpetual Brexit, which in reality means transition=BINO for some time if not forever. (The final deal will probably be BINO with face saving: perhaps I should call this BINOFACE.)

What threats could May invoke to get any deal through parliament. In the negotiations leading up to the deal both the UK and EU will use the threat of No Deal. However once the deal is made threatening No Deal if parliament fails to vote for it is counterproductive if she is trying to convince Brexiters, because No Deal is exactly what these idiots want. A threat of no Brexit however might inspire her Remain rebels. The same would be true of a threat of a second referendum. Perhaps the best threat for her is a general election, because neither the Brexiter nor Remain rebels would want to be responsible for a Corbyn government. The problem with any threats however is that this is not a repeated game, so there is no incentive for her to go through with her threat if it also conflicts with her interests, and people know that.

If she fails to win a vote on the final deal, I still cannot see leaving without any deal as a likely option. It just isn’t in anyone’s interests to let that happen, apart from the Brexiters. But it would be hard for the EU to agree to an extension of A50 on the hope that something turns up. This is where a referendum might become a reality (combined with an extension), as a way out of an impasse. If that happens, it will be the ultimate irony that Brexiter intransigence gives the Remainers what they want. However there is a caveat, and that is that May will propose a referendum with a two way choice between her deal and No Deal. There would be a final fight in parliament to get Remain on the ballot paper in some way.

I doubt, however, that May would want to fight a referendum where Remain is a possibility, because it is quite likely that Remain would win, particularly if Labour leads the campaign for Remain. That would make her position very difficult. As a result, she may prefer the option of a general election. A lot will depend on the polls at the time. But the bottom line is that either an election or a referendum (accompanied by an A50 extension) are more likely than crashing out with No Deal if parliament rejects the final deal. But don’t expect either side to tell you that.

The possibility of parliament voting down any deal and even the possibility of no deal, with the government stockpiling medicines etc, should focus open minds on how ridiculous our position has become. Brexit may get voted down because no one is happy with the form of Brexit we will get. Yet neither the government or parliament is able to say this is ridiculous and we should stop in now. Ostensibly this is because they feel they have to implement the ‘will of the people’. But this is so short sighted, because even the people who voted Leave will be unhappy with the Brexit they get when they see what it is. They voted, it should always be noted, for the “easiest trade deal in history” (Fox) where “we hold all the cards” (Gove). We now know better, but it seems our representative democracy is paralyzed by a vote for a fantasy.    

[1] I’m not going to stick my neck out even further than I am in this post by saying how many stages there will be, beyond saying that it is at least three. The point about calling it an endgame is that the result is clear with best play from the winning side.

[2] Some Remainers do not like me saying so, but the willingness of the EU to keep the terms on which we leave vague when it is voted on in parliament is a bit of an insult to democracy. None of their business, you may say, but they are as much part of theis negotiation as the UK. The majority of UK voters, and probably MPs, would not vote for a BINO type deal where we pay, obey but have no say, and the EU side must know that is where we are heading if a border in the Irish Sea is ruled out.

Should a second referendum happen before the General Election and what should accompany Remain on the ballot?

Some have suggested that an interim abC Prime Minister (abC = anyone but Corbyn), appointed by parliament after dismissing Johnson in a vote of no confidence, should hold a second referendum before a General Election. If the idea of this is to end the Brexit issue before an election, I think it is misguided for one simple reason. Johnson is likely to boycott the referendum.

The reason is straightforward. Brexit is the issue that could win him the General Election. If the polls are correct and he captures most of the Brexit vote, but the Remain vote is split between Labour and the LibDems, then he gets to form a government with an overall majority for the next five years. I know there are reasons why that might fail, but it is the centre of his strategy. The alternative where he gambles on winning a referendum looks worse odds for him.

The best this strategy could achieve from a Remain point of view is a victory and revoking Article 50. But Johnson would then talk about how the winners of the 2016 referendum have been cheated by an unelected PM and an illegitimate second referendum, which would ensure this claim became the major issue in the subsequent General Election. It would help Johnson win, and he would promptly start Article 50 all over again. All that would have been gained is a delay in what was now an inevitable Brexit.

For this reason the strategy of a referendum before a General Election looks flawed. Of course if Johnson gets an overall majority in a General Election there will be no referendum. So there appear to be two possibilities in which a second referendum could happen. The first is a Labour government (perhaps with the support of the SNP). Here we know what will happen: Labour will negotiate its own deal and hold a referendum where that is the Leave option, and Remain is the alternative. As the referendum would be boycotted by Farage and the Conservatives, Remain would win. 

The second is a minority government where the smaller parties hold the balance of power. This in itself does not guarantee a second referendum, because pretty well all Conservative MPs would vote against it, as might the DUP and some Labour rebels. But if there is a majority of MPs in favour of a referendum, what is the alternative to Remain that they should choose?

Once again a key question is whether the Conservatives would participate. If the Leave alternative was May’s Deal the answer would almost certainly be no. So some may be tempted to choose No Deal as the alternative in order to get the Conservatives to participate. It would be argued that only a second referendum where No Deal was an option would have legitimacy.

We need to unpack what is meant by legitimacy here. The justification for the second referendum is that it is a natural consequence of the first. The first referendum did not specify the form of leaving, and because the result was close it is far from clear that there is any majority for a particular way of leaving the EU. This is what parliament has found: although both parties were prepared to leave, the deals they had in mind were very different, and neither was prepared to accept the others.

This is the answer to the perennial point made by leavers: if not two why not a third? If the second is designed to check there is a majority for a specific form of leaving, chosen by parliament following the first referendum as the best form of leaving, then a third makes no sense. The second referendum is not a rerun of the first, but a consequence of the first.

If we see a second referendum in this light, then it seems clear that the form of leaving that should be on the ballot is some form of deal with the EU. The case for Leaving put forward in the first referendum was all about the deal which the UK would obtain. Leavers never suggested that the UK might not be able to obtain a deal. If the Remain side occasionally did so that is irrelevant, because those suggestions were dismissed by the Leave side as Project Fear and Leave won. So the only mandate the 2016 referendum gives is to Leave with some form of deal, and therefore a Remain/No Deal option would not be a legitimate consequence of the first referendum..

I think this is not the legitimacy that people who suggest No Deal should be on the ballot have in mind. What they mean is that Farage and Johnson would agree to participate and respect the result if No Deal was on the ballot. Here I think people are making the same mistake as Cameron made in offering the first referendum. Cameron’s dream that his 2016 referendum, if won by Remain, would end calls to Leave for a generation were never going to come true, as some Leavers made clear before the result.

The period from 2016 until now has shown us that the No Deal virus has infected not just the Brexit party but also Conservative party members and therefore the Conservative party itself. Because of the influence that Farage and the Brexit press have on voters and Conservative party members, Brexit is not going to be put in a box any time soon.

So would Johnson agree to participate in a No Deal vs Remain referendum? He would have the perfect excuse not to. He has always argued that he could get a good deal out of the EU if only the threat of No Deal was real. It is nonsense, but he gets away with it. So he would say that the only way to achieve a good Brexit deal is to elect a Conservative government with an overall majority prepared to implement No Deal so he can get that good deal. Minority governments are unstable and so his chances that would happen still exist, if only voters would give him an overall majority.

Agreeing to a second referendum would also weaken one of the Brexiters strongest rhetorical cards: 2016 gave the government an instruction to leave which it promised to fulfill. Once Johnson agrees to participate in a second referendum he legitimises it, and so that rhetorical card is one he cannot use again. Another factor is that if Johnson did say yes to a second referendum, Farage would say any second referendum is illegitimate, allowing him to sweep up Brexit votes from the Conservatives if Remain wins the second referendum.

So I suspect we reach the following position: Johnson will only participate in a No Deal/Remain referendum if he is pretty sure he can win. Which is an excellent reason not to hold such a referendum. Again we need to remember a fundamental lesson. Choosing referendums that appease opponents can come back to haunt you later.

I therefore think it is wise that any second referendum should either involve a new deal negotiated by Labour, or May’s deal. But it is almost certain this referendum would be boycotted by the Conservatives and Farage, so the referendum is not going to make Brexit disappear for a generation. It might end the Article 50 process, but that process could be started up again by a Conservative government with an overall majority at any time, using the 2016 referendum as a mandate. Brexit is now in the DNA of the Conservative party, and no referendum will make them give up.

If you are a Remainer, this has profound implications for UK politics over the next decade. A second referendum wins the crucial battle to end the current A50 process, but it does not end the war. If the Conservative party were to ever win an overall majority, the whole process would begin again. I have suggested before that the only thing that will be sure to end Brexit for good is demographic change and a long period of Conservative opposition until their final realisation that Brexit and power cannot go together.

Are the EU wrong to make things easy for May?

Most experts who follow the Brexit negotiations think the Withdrawal Agreement (WA) will sketch in pretty loose terms what the final relationship between the UK and EU will be, although some EU politicians have indicated a reluctance to do this..A vague WA has been called a ‘Blind Brexit’ (ht Chris Grey). While a blind Brexit might help in May’s efforts to achieve an agreement and (maybe) to get parliamentary approval for it, it remains a very undemocratic way forward [1]. Here is why.

Suppose there are only two types of Brexit possible: a No “not the end of the world” Deal or BINO (staying in the single market and customs union). All the polls suggest No Deal is not the will of the people, and its support is in any case dependent on a false view of its economic consequences. Equally it is difficult to understand why anyone would support BINO compared to EU membership, as the only major difference is that we no longer get a say on how the rules we have to obey are changed.

A result of keeping the WA vague about the final relationship is that this binary choice is not apparent to many voters. In particular the UK government is still peddling various halfway houses that the EU is very unlikely to agree to, but we will not know for sure that they will be rejected until after the WA. If we did know it before the WA the number of people who had changed their mind would be greater than it is now, which in turn might embolden parliament to call the whole thing off.

Thus we will leave under false pretenses, of exactly the kind that led to the narrow vote to Leave in the first place. When it does become clear that there are only these two choices, it will be too late to change our mind without new costs. Re-entry into the EU might require becoming part of the Eurozone for example. So we will could end up with BINO plus face saving details forever, and pretty well everyone (including No Deal advocates) will agree we are worse off than we were before.

A similar problem happens if parliament does not approve the WA and we end up with a second referendum. The logic of a second referendum is clear. In the first in 2016 the promises made about what leaving would mean were various and many were untrue. Now we know what leaving does involve it makes sense to ask the people once again. Except in any referendum held after the WA fails to be approved, we will not know what the final deal will be, and that will give May the chance to spin her deal in any way that gets votes. Rather than a referendum on a final deal, it will in fact be a second referendum with unicorns only slightly less outlandish than in the first referendum.

This is what I mean by a very undemocratic procedure. The fault lies first with David Cameron, who should never have agreed to a referendum where the type of Brexit was unspecified. It then lies with May, who initially prefered Brexit fantasy to reality and despite Chequers still panders to the Brexiters. Above all it is the fault of the Brexiters, who by going back on an agreement made in December wasted precious time so they had more chance of getting No Deal.

The EU cannot really be blamed for going along with a vague WA. They are quite happy with BINO, and it avoids a No Deal accident. For that reason they may feel it makes sense to help May. The alternative of insisting on a detailed WA on future trade is high stakes: it could end Brexit, but could lead to No Deal. It is not surprising that most EU politicians would take the less risky option.

It remains the case, nevertheless, that by allowing May to have a vague WA on trade they are assisting in the deception of UK voters and MPs, who will be leaving the EU without knowing what is going to take its place. I hope that is something the EU recognises if we do leave in March 2019 and subsequently want to return. I suspect, however, that this is a vain hope.

[1] It is also costly in economic terms, because it prolongs uncertainty about what future trade relationships will be. Some of the issues I describe here may also divide those who voted Remain over whether the WA should be passed in parliament or not. 

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.  

When two mass movements clash

Last week saw leading lights in one mass movement, the Labour party, attack elements of another mass movement, those who want to remain in the EU. What led to this attack seemed to be posters issued by an organisation called OFOC depicting John McDonnell in the pocket of arch Brexiter Jacob Rees-Mogg. My own view is that these poster were a waste of money and hardly worth bothering with. But leading lights in the Labour movement tried to suggest to grass roots Remain supporters that they are being used as a way to attack Corbyn, as here for example.

As it happens I have quite recently suggested that some Remain campaigners risk the danger that their message is sounding very similar to the numerous anti-Corbyn attacks you can find throughout the media. For example suggesting that the only thing in the way of stopping Brexit is Corbyn (ludicrous) and that therefore he has to go (won't happen). As the only chance of a vote on the final deal is if Labour supports it such a message is positively counterproductive.

However the attacks from Bastini, Mason and others took a different tack, listing in great detail how OFOC was connected to, and possibly funded by, certain Tory and LibDem figures. This was the basis of the ‘being used’ claim. There are two big problems here. First, Remain is a cross party movement. So what exactly is the big deal with establishing all these links? So what, you might say. Second, Remainers have every reason to be critical of Labour policy, which is now clearly not to stay in the EU. 

The days of triangulation are over. We now know that the Labour leadership wants a negotiated deal with the EU that has some safeguards on nationalisation etc, and for some MPs at least some limits to free movement. As the great majority of Labour members and voters support staying in the EU, this is a difficult position for the Labour leadership to take. Labour are therefore acutely vulnerable. Indeed as there is a chance that Labour might back a people's vote but May never will, it is sensible that Remainers now concentrate any pressure on the Labour leadership. 

Picking a fight with some Remainers by suggesting they are, knowingly or not, just an anti-Corbyn front because they attack Labour on Brexit seems to both miss the point and to be terrible politics. I guess it can be what happens when two mass movements with considerable overlap in terms of membership clash. Of course any Brexit negotiated by Corbyn would be less harmful than the Brexit May might be able to negotiate, and Labour still might vote against the final deal and support a referendum on it, but until Labour do start saying No Brexit is better than May’s Brexit Labour are vulnerable and have to accept that Remainers will try and put pressure on them.

All of which is of course a minor sideshow to what will be the main story of the next few months: will May be able to negotiate a deal with the EU? Labour are completely irrelevant in answering this question. The answer will depend on whether May will finally break with the Brexiters, and how much these Brexiters react to this rejection. The deal that will be done, which involves at a minimum being in the Customs Union and the Single Market for goods, is anathema to most of the Brexiters based on their past behaviour. That deal, as I have argued before, represents the almost complete failure of the Brexiter project.

The Brexiters have two choices. They can try and make it as hard as possible for May such that she fails to get a deal, and hope that the UK leaves with No Deal as a result. Although there is much you can criticise in May as a Prime Minister, her stubbornness probably means she will not allow her deal to be sabotaged in this way, but that will probably not stop the Brexiters trying. The second choice Brexiters have is to park their displeasure at the deal until we leave in 2019, and hope that they can achieve further breaks from Europe subsequently, perhaps by getting a Brexiter as Conservative party leader. The problem with this strategy is that time is not on their side: demographics, losing the Mail, and people seeing how the UK steadily falls behind the rest of the EU are just some of the reasons why.

There is no doubt that May will do what she can to get a deal, and I suspect the Brexiters will not have the support or the will to stop her once she stops appeasing them. Which leaves Labour in a dangerous position, where they may alienate Leavers by voting against the deal, and alienate Remainers for not supporting Remain. The days when they could keep both groups happy by triangulating, and almost win a general election, are over. They cannot be crazy enough to vote for or abstain on the final deal, because then they become complicit in all the economic harm that Brexit will do, as well as alienating the majority of its own members and voters. It would mean four years of Labour  losing Leave voters to the Conservatives (as the Brexit press would spin anything other than a vote for the deal as Labour opposing Brexit), and Remain voters to the LibDems or Greens.

One thing we have learnt in the last week is that most of the handful of Tory rebels will not have the courage to vote against any deal May makes. (No deal is another matter.) So Labour will lose the parliamentary vote on the final deal. Labour are not in government, and the deal is being done now, so what they would want to do in government is irrelevant. That means that they have little to lose by backing the popular people’s vote against May’s deal as well as voting against that deal. No Brexit is better than May’s Brexit. That way, they allow the two movements to march as one.

Postscript 27/06/18

Conversations with some Labour party activists both before and after this post suggest that Labour has to focus on winning over Leave voters in traditional Labour held constituencies, and so has to appear to back Brexit where it can. There is a danger that they are taking for granted many who voted for them in 2017 because they thought Labour would stop Brexit, and still do (See, for example, this poll in January 2018, where only 19% of Labour voters think Labour is pro-Brexit.) There is a danger that we are seeing a repeat of what happened over austerity in 2015: Labour taking for granted that anti-austerity voters would vote for them, and at the same time failing to win over pro-austerity voters with talk of being 'tough on the deficit'. Much the same happened with immigration.   

Why the UK cannot see that Brexit is utterly, utterly stupid

If you talk to almost anyone overseas, except those at the right wing extreme (like Trump) or part of a tiny minority of the left, their reaction to Brexit is similar to the former Prime Minister of Finland. What the UK is doing is utterly, utterly stupid. An act of self harm with no point, no upside. Now sometimes outside opinion is based on incomplete or biased information and should be discounted, but on Brexit it is spot on. So why are so many people in the UK unable to see what outsiders can see quite clearly.

The days when Leavers were talking about the sunlit uplands are over. Liam Fox has not even managed to replicate the scores of trade deals the UK will lose when we leave the EU. As to independence, Leavers just cannot name any laws that the EU imposed on the UK they do not like. Since the referendum even public attitudes to immigration have become much more favourable.

Instead there has emerged one justification for reducing real wages, for allowing our economy to lose over 2% of its GDP, to allow firms to make plans and enact plans to leave the UK: the 2016 referendum. People voted for it so it has to be done. It is described as the will of the people. Yet few bother to note that almost half the people voted the other way, with those that would be most affected not even having a vote, and that this victory was won by illegal means. All that is brushed aside.

But what is really remarkable is the way what this vote was for has gradually mutated over time. Just before the vote, the Leave campaign talked of many ways of leaving, with Norway (which is in the EEA) as one option. They did this for a simple reason: every time Leavers came up with a feasible way of leaving other Leavers did not like it. Yet within little more than a year Leavers were declaring that the vote was obviously to leave both the Customs Union and Single Market. During the referendum campaign the Leave side talked about the great deal they would get from the EU, but within two years many of the same people were seriously pretending that voters really wanted No Deal. A vote for the ‘easiest’ deal in history has become a vote for no deal at all, apparently.

In much the same way, as Alex Andreou notes, what was once described as Project Fear transforms in time into ‘the people knew they were voting for that’. Claims there will be no short term hit to living standards made before the referendum has now become people knew there would be a short term cost. (Remember Rees-Mogg told us that short term means 50 years.)

Meanwhile warnings from important UK businesses become an excuse to talk about WWII, yet again. What people from outside the UK can see that too many inside cannot is how the case for Leaving has become little more than xenophobia and nationalism. What people overseas can also see but we seem unable to is that there is a world of difference between a vote to Leave the EU in an unspecified way and a real, practical plan. Which means that the first referendum, particularly as it was narrowly won, needs to be followed by a second referendum over an actual, realistic way of leaving. In other words a People’s Vote. When Jonathan Freedland says “the notion that a 52% vote for a hypothetical, pain-free Brexit translates into an unbreakable mandate for an actually existing Brexit is shaky at best” he is wrong: the notion is simply wrong.

Some of the arguments against this are so dumb, yet are allowed to pass as serious. ‘Why not the best of three’: there is no reason for a third referendum. ‘The first referendum was an unconditional vote to leave’: of course it could never be. [1] Suppose we found out that everyone would lose half their income under any specific way of leaving - would you still argue that in 2016 voters voted for that? Or that a second referendum means that ‘politicians have failed the people’. Most politicians voted to Remain because they knew that any realistic way of leaving would be bad for people. They have been proved right and a majority of the electorate might well agree.

But by far the worst excuse not to hold a People’s Vote is that a second referendum would be undemocratic. Orwell must be turning in his grave when he hears politicians say in all seriousness that a second referendum would undermine faith in democracy. This is the language of dictators and fascists, but few seem to mind. Given the difference between the final deal and the promises of the Leave campaign the case for a second referendum is overwhelming, but you would not know that from the UK public debate. There is only one way to make sense of the ‘People’s Vote = undemocratic’ equation, or the ‘will of the people’, and that is that the first referendum effectively disenfranchised Remain voters. [2]

That is exactly what happened after the 2016 vote. Those wanting to Remain to all intents and purposes ceased to exist. If we are just talking about Leave voters, then of course most will be disappointed by a second vote. Is this why Labour MPs just worry about Leave voters in their constituencies, because Remain voters no longer matter? It is why we get endless Vox pops from Leave constituencies, and no mention from EU citizens who have lived here for years who are worried sick because the computer might say you have to leave.

How did Remain voters get effectively disenfranchised? Why is the lunacy of what this country is doing only apparent to foreigners? Answering this question is not hard for anyone who has read my book ‘The Lies We Were Told’. What we have that foreigners do not is a public discourse shaped by a handful of newspaper proprietors who just happen [3] to be intensely hostile to the EU. Partly through intimidation by that same press and their political allies, the BBC follows this discourse. This is where the ‘will of the people’ came from. It was this press that puts rebel Conservative MPs on their front pages, and that uses language like saboteurs and traitors. It is intimidating MPs in order to influence the democratic process, but of course few in the media call it that. 

As I discuss in my book, I have seen this before in a milder form at least twice in recent times. In the first the UK convinced itself that austerity was the only way forward, despite most academic economists saying otherwise. It was the media that promoted claims that governments were just like households, even though first years economics students are taught why this is not true. And then it was the media that pushed (or left unchallenged) the idea that austerity was the result of Labour profligacy: it was a straight lie but it played a critical part in the 2015 election.

If people have doubts about my argument that the media played a central role is misdirecting the public then (and many do), well Brexit should be a test case. And so far Brexit has gone exactly as these newspaper proprietors would have wished. Three coincidences is a row? The reason why those overseas can see that Brexit is utterly, utterly stupid while the UK stockpiles food and medicine, and the Prime Minister tries to blackmail MPs into supporting her deal, is because those overseas are not influenced by the UK media.

[1] As this one seems very popular, it is worth spelling out why it is rubbish. The 2016 referendum was not some kind of contract, where all those voting to leave committed to support any vote to leave for all time. It is highly likely that some people voted for a particular kind of Brexit and would prefer Remain to other types of Brexit, which is crucial given the narrow victory. (Which is also why claims that Remain cannot be on any second referendum ballot are also nonsense.) Some may have voted Leave to give more money to the NHS and to stop Turkish immigrants, in which case they may have changed their minds. It does not say "we should leave whatever the form of leave at whatever cost" on the ballot or the small print, because there is no small print.  

[2] There is a serious and quite compelling argument that referendums in a representative democracy are a bad idea, but this equation is about a referendum that has been necessitated by an ambiguous first referendum.

[3] Well maybe not ‘just happen’: see here