Not all Brexit Deals are alike

On balance, I supported Theresa May’s Deal. I can’t support Boris Johnson’s

The United Kingdom voted to leave the European Union just over three years ago. I did not. Those three years feel like many long, weary lifetimes in politics. Throughout that time, I’ve felt we should accept the result and work with it. I was open to a variety of different moderate Brexit outcomes and I never wanted to embitter our politics even further with a second referendum.

I made the argument for Theresa May’s Deal with a heavy heart. I feel grimly vindicated in making it. May was succeeded by Johnson, contemptuous of constitutionalism and unfit for high office. A deal which essentially included a customs union and a fairly high level of alignment with the EU was replaced with a Brexiteers’ Brexit. We now face a far worse choice than before, having badly damaged our democratic norms in the process.

But when I supported May’s Brexit, I made a judgment on a particular package. And as someone who takes the Union seriously, as a social democrat, and as someone willing to accept a reasonable but not brutal Brexit, Johnson’s goes too far. I confess I didn’t expect him to strike a deal by now. I also thought he would only agree one if he had the DUP on board. And I knew the EU would happily adopt a Northern Ireland-only backstop, but I didn’t think they would make so many concessions on its details. But almost all the changes are greatly for the worse and the balance of risks has changed.

The new Northern Ireland backstop: consent without convergence

The reasons for a backstop are well-rehearsed. Brexit forces a series of hard choices upon Northern Ireland — soon, by default, to have a land border with the EU. That border is historically contested, logistically impossible and politically fraught. Border communities have been abundantly clear they will not accept checks and controls. And regulatory and customs divergence means checks and controls.

The EU proposed that Northern Ireland align with Border-relevant parts of EU law and that controls be carried out between Great Britain and Northern Ireland. That cut across unionists’ links to the rest of the United Kingdom, with significant (and likely to grow) barriers to most of its trade. Northern Ireland would also take rules shared with Ireland with no say in them. This differed fundamentally from North/South cooperation by agreement between the two jurisdictions.

Theresa May fought hard to secure a limited UK element to the backstop. Great Britain would have been in a customs union with Northern Ireland and the EU. She also accepted that to keep Great Britain and Northern Ireland close, Great Britain would have to stay close to the EU. Faced with a choice between regulatory freedom and the economic cohesion of the Union, she chose the Union. Boris Johnson chose the opposite. He returned to the Commission’s original backstop, changed its provisions on customs and secured new ones on consent.

Theresa May’s customs partnership has been reborn for Northern Ireland alone. Northern Ireland would legally be outside the EU customs union and in the UK’s customs territory. However, the EU’s customs border would be administered at Northern Ireland’s ports. Some goods bound for Northern Ireland would be exempted from EU tariffs from the start. Others would either need to pay tariffs and claim rebates or have tariffs effectively waived by the UK Government up to a limit. This means Northern Ireland can benefit from such trade deals as the UK negotiates.

Meanwhile, the new consent provisions mean the backstop stands or falls through votes by members of the Northern Ireland Assembly. The backstop would come into force at the end of the UK transition period. After four years, the Assembly would vote. Support from a simple majority of MLAs would keep the backstop in place, with another vote four years later. With a cross-community majority, the next vote would be after eight years. If the backstop is rejected, we would have two years to identify alternative arrangements for the land border. Whether the Assembly ever rejects it probably depends on the Alliance Party’s electoral fortunes. It is unlikely, but not impossible.

May’s backstop, in my view, made it likely that Great Britain would remain aligned to Northern Ireland and major new barriers between the two would not arise while protecting goods trade with Ireland and avoiding a hard land Border. Because Great Britain couldn’t lower tariffs below the EU’s, a radically different trade policy wasn’t on offer. That removed the point of rules on goods which differed from the EU and Northern Ireland. The hard choices Brexit forces on Northern Ireland would have been, more or less, avoided. Nationalist alienation would have been reduced and Border communities’ way of life would have been preserved. And even unionists should recognise that without acquiescence from people of a nationalist background, the prospects for the Union would be poor indeed.

I judge that Johnson’s backstop poses a far starker, potentially destabilising choice for Northern Ireland. Great Britain will, over time, move away from the EU if he gets his way: that is the whole point of the exercise. I do not believe that can happen without growing barriers to trade between the two. We should remember that most of Northern Ireland’s trade is with Great Britain. Clearly this backstop also gives Northern Ireland a competitive advantage over Great Britain in EU trade. I have yet to see hard economic evidence that this outweighs major divergence from its largest market. The likelihood is a significant economic realignment over time, to which most unionists do not consent and which has major political implications.

The institutional provisions are deeply worrying too. I welcome a consent mechanism in principle. But I fear an Assembly vote every four years (not even in line with the Assembly’s five-year electoral cycle) will polarise Northern Ireland’s politics still further and make it even harder for its institutions to work. Do we want every Assembly election to be overshadowed by whether the the region will align with Great Britain or Ireland? Every Border constituency voting on whether MLAs risk bringing back a hard Border? Every core unionist constituency voting on whether they remain aligned with Ireland?

From a unionist perspective, Johnson’s backstop trades the substance of close alignment with both Great Britain and Ireland for the formality of consent which is unlikely to be withdrawn — and which could only be withdrawn at an enormous price. At least as importantly, from a cross-community perspective it raises the temperature of Northern Ireland’s politics indefinitely and undermines its institutions. May’s backstop was, especially if combined with alignment by Great Britain and mechanisms for input in the longer term, liveable. Johnson’s is better than No Deal, given how disastrous that would be for Northern Ireland. But Northern Ireland deserves better than either Johnson’s Deal or No Deal.

The UK’s new Brexit destination: no compromise, no safety net

The new backstop doesn’t just let Great Britain diverge from Northern Ireland. It removes the elements which nudged the whole UK towards a closer relationship with the EU. Those elements made Theresa May’s concessions to Labour MPs more credible. The backstop also included a level playing field, to prevent a race to the bottom between the UK and the EU. This covered aspects of tax, social and labour standards, the environment, competition and state aid.

I’ve called the Political Declaration on the Future Relationship a very solemn press release before. I broadly stand by that: it’s the EU’s starting point for negotiations, and assuming our government stays the same it will also be the UK’s. Given recent history, it is entirely possible that the UK will again find itself in political paralysis, in which case the Political Declaration’s default may be more influential than we think. First drafts often shape outcomes: look at the Commission’s original backstop.

Still, it’s not binding. The level playing field is still in Johnson’s Political Declaration and name-checks the same categories as in May’s backstop. But while it makes clear that how far the UK agrees not to try to undercut the EU and how much market access it gains are linked, it can do no more than that. I accept that, while the UK legally needed EU agreement for Great Britain to exit the backstop, such agreement would not have ultimately been refused. But it makes at least some core protections ‘stickier’ and it nudged us towards a more moderate Brexit.

Ultimately, the whole structure of Johnson’s Deal points to a much harder Brexit than May’s. Whether you described May’s Deal as Jersey Minus or a cross between Turkey and Ukraine, its logic pointed to a fairly high level of alignment in goods. May believed arrangements would be found to let the UK out of a customs union. In reality, I am sceptical the new customs arrangements for Northern Ireland would have been on offer any time soon.

But where May most likely offered a Brexit which was neither soft nor hard, Johnson offers a very hard Brexit indeed. Disruption aside (obviously a huge ‘aside’), it’s probably not all that much better than No Deal in the long run. May’s Deal was a compromise — from a Leave starting point (they did, after all, win), but a compromise. Johnson’s Deal is a compromise with the EU, but it effectively tells Remainers to knuckle under and be grateful they don’t have to eat turnips.

Johnson is riding roughshod over a country which only voted narrowly for Brexit, where two out of four constituent countries voted Remain. He also risks fuelling the cause of Scottish secession from the UK. As a matter of policy, a harder Brexit makes for a far sharper choice for a separate Scotland. Realigning away from the UK and towards the EU would be an immensely painful undertaking. And few would relish checks and controls on the Tweed or Solway.

But as Brexit makes very clear, people don’t always vote on economics. I am British. I am the child of a Scottish father and an English mother. I am not going to risk throwing my country away willingly just so Boris Johnson can ‘get Brexit done’ on his terms alone.

What are the risks?

I am not willing, if I have a viable choice, to see this passed without further reference to the people. But not being a fan of turnips or gambles, the question follows: what are the risks of voting the deal on the table down in the absence of a referendum?

I take a different view to the one I took in March. Unlike then, if a deal is not approved by MPs by the end of today, the Prime Minister is legally obliged to seek an extension under Article 50. Even if we wish to pass this Deal, that is self-evidently in our interests. The idea of trying to pass something as significant and complex as a Withdrawal Agreement Bill in 10 days, with trench warfare in Parliament, is farcical. Legislating for Maastricht took over a year. In the interests of basic democratic scrutiny, we should want an extension now.

No Deal on 31 October is therefore not a legal option as a UK policy choice. In my view, the courts will make short work of attempts to claim otherwise. Of course, no UK Act can prevent the EU from refusing an extension. But though our colleagues’ exasperation is evident and readily explicable, I think outright refusal is a very unlikely scenario.

The choreographed warnings from Juncker, Macron and Varadkar make political sense. And if Brussels forces our hand by refusing an extension, then clearly we will have to accept the Deal as it is. The warnings are not, however, categorical. And revealed preference indicates that while the EU will want any extension to be for a reason, it does not wish to force a No Deal exit. The election which would inevitably follow gives a chance of breaking any political deadlock, which gives the EU an incentive to facilitate one if it becomes clear this Deal will not pass.

Johnson has thrown himself behind his Deal. It now seems overwhelmingly likely that if blocked, he would seek an election on a platform of passing it. He may very well win a clear majority on that basis. If so, there is at least an electoral mandate for the government to proceed. I doubt his odds of outright victory are higher than they’d be after ‘getting Brexit done’. Given these scenarios, it seems to me that there is little to lose.

There is a line

I backed May’s Deal with a heavy heart. Perhaps oddly, I oppose this Deal with a heavy heart too. Politically, I am exhausted by the last few years. I am tired of the polarising ferocity of the Brexit process. I fear what we have done to ourselves and to each other in this country and I fear what we will carry on doing. I wish MPs had compromised when there was a real compromise on the table.

But if this is now the only Brexit on offer, then — having wished for, argued for and supported compromise — I feel forced into preferring a second referendum to see if Johnson’s Brexit is a price people are truly willing to pay. I am far from sure Remain can get one and I am far from confident Remain would win one. Frankly, my gut instinct is that the campaign would go against them. But it is clear to me that not enough people are willing to compromise on a reasonable Brexit.

And if there is a second referendum and if Remain wins, I am under no illusions. At best, we will have restored the threadbare legitimacy of EU membership to which David Cameron referred in 2013. There will be a heavy price to pay and a daunting task ahead in patching that legitimacy up over years. I am far from sure we would succeed.

But there has to be a line. And for peace process, unionist, social democratic and Remain-voting reasons, I have reached mine. So be it. One way or another, let the people choose.

This post was originally published on Medium.com on 19 October 2019.

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