Category: Parliament

Politics and the peerage

You’ll never get politics out of the Lords, and nor should you. The problem isn’t including politics — it’s excluding voters

The House of Lords: not all that much more democratic than it looks. UK Parliament, CC BY 3.0.

Lords appointments have been something of a (slow-burning and highly secondary) theme over the past few months. A number of Boris Johnson’s appointments have raised eyebrows. Notably, the Lords will now include Claire Fox — a former supporter of the IRA’s terror campaign who remains unrepentant, and whose inclusion remains unexplained and suspect. A number of Jeremy Corbyn’s final nominations were rejected. And today, Keir Starmer’s choice of peers has also attracted controversy.

Using peerages as patronage is nothing new

The appointment of Claire Fox is unusually egregious. Consistent commitment to our democratic process seems a pretty minimal requirement for life membership of our Parliament. (Even a show of repentance would be something.) But there’s nothing new about prime ministers appointing legislators-for-life for unedifying reasons. 58% of Margaret Thatcher’s appointments to the Lords were Conservatives, even in a chamber still hereditary-dominated and Tory-skewed. Controversy periodically dogged Blair’s Lords appointments. The speed at which the Coalition expanded the House made experts tear their hair out.

None of this is surprising. The House of Lords ultimately plays second fiddle to the Commons. But it’s still a lawmaking body, and governments often make concessions to it. Lords appointments are a huge source of power — but peers don’t get anything like the same scrutiny as MPs. Voters tend, in the main, to forget or at least deprioritise the Lords. As a result, there’s every incentive to put your people in, even if the appointments do the House no credit, and little downside to doing so.

The Lords became more influential in the New Labour years. It continued to be more assertive under the Coalition. And since 2015, the Conservatives have had their first experience of single-party government with no particular advantage in the second chamber. Their tendency to menace it whenever it gets a bit uppity shows they don’t like it one little bit. But on the whole, the surprise isn’t that unedifying appointments get made: the surprise is that prime ministers show any restraint at all.

Nominations mean patronage, and mitigation is hard

We could do a bit to reduce the problem. We could agree a formula for sharing out Lords appointments, taking the partisan makeup of the House out of prime ministers’ hands. We could beef up vetting by the House of Lords Appointments Commission. The Wakeham Commission on Lords reform even envisaged the Commission appointing party-political, not just independent, members of the Lords (except for a few elected members). Labour rejected this at first: it came round in 2007, before moving (in theory) to an elected second chamber.

It should be a no-brainer that prime ministers shouldn’t be able to skew the makeup of the second chamber. And few would object to tougher vetting of peers, if we take it as read that we the people get no say in their appointment. The first would be a real step forward; the second might at least help address some of the most egregious appointments.

But how far can vetting go? What is our working definition of ‘improper’ beyond the most egregious cases? If we want it to tackle the wider issue of political patronage, then how? Is the Appointments Commission meant to assess if Johnson, or indeed Starmer, is giving too many peerages to his factional allies? If we exclude politicians and their advisers, how many members with no political history and capacity to serve can parties rustle up? And do we actually want that anyway? Post-Brexit Britain will need to get better at lobbying EU institutions now it’s given up its voice in them. Do we really want to ban former MEPs from the Lords?

Going further and letting the Appointments Commission choose party as well as Crossbench peers may or may not prove tenable. I very much doubt a less deferential age would take its bona fides on trust. The experience of the ‘people’s peers’ hardly inspires confidence in the public credibility of any such model. Britain’s parties have enough difficulty respecting the independence of the judiciary. I doubt they’ll defer to a quango telling them who will represent them in the Lords with no recourse.

A House of Experts: tricky in practice, dubious in principle

Of course, you might try and remove parties altogether. In Canada, Justin Trudeau’s Liberals are trying to do just that. Their aim is a non-partisan Senate, with an independent Board to advise (though not bind) prime ministers on appointments. The idea is to restore the Senate’s role as a chamber of ‘sober second thought’, with a less partisan and more independent-minded approach than the Commons.

Some accounts do suggest this has partly happened. Individual Independent Senators are often distinguished. But fairly or unfairly, their independence from the Liberals remains disputed. (Some Senators left the Independent Senators Group over this question.) The Government had to create a caucus of of three to handle its Bills. Ex-Liberal Senators formed their own Progressive Senators Group, which some Independents have joined. The Conservatives continue to oppose the principle. Whether it’ll bed down I don’t know. I think we can already say it won’t quell (admittedly ill-fated) calls for wider Senate reform.

In any case, I’d argue the whole concept is dubious in democratic principle. This is especially true if all members are non-partisan, denying voters any say over the makeup of the Lords. On what basis should a politically unaccountable body have such power over policymaking in the round? How should it decide how much weight to accord diplomacy, defence, development, law, economics, business, trade unions and welfare?

Weighing these things up is exactly what we have politics for. It’s not just that the Lords never will be a dispassionate chamber of experts: it actually shouldn’t be. Parliaments need politics, lawmaking isn’t an academic seminar — and frankly, the whole notion reeks of anti-politics to me. Independent appointments seem manageable for 20–25% of peers, whether or not you approve. It’s quite different if a quango decides which policy priorities we get to hear in half the legislature.

Patronage with or without a public say: take your pick

The House of Lords plays far too big a role in our legislative process to be removed from the political arena, even if such a thing were desirable. More radical Lords reformers are often charged with a lack of realism. But those who believe the Commons will up its game enough to remove the need for an active second chamber any time soon must be more utopian still.

In practice, that means there’s a fairly clear-cut choice. Parties will seek to get their people into both chambers of Parliament. The way they do that can involve the voters, or it can exclude them. If you opt for the latter, then yes, you may get some experts you wouldn’t get if they had to go on the campaign stump. You’ll also get MPs who’ve lost their seats, party leaders’ favoured sons and daughters and others who offend your sensibilities. And you will be able to do nothing about it.

I admit it: for me, no one should sit in Parliament unless the voters put them there, as a matter of principle. I want the second chamber to provide a stronger check on government and a balance for the smaller nations in our (imperilled) union state. So I was never attracted to some sub-Platonic chamber of experts anyway. But I also think it’s a pipe dream. If you reject letting the voters decide, then in the main, party leaders will decide for you.

This post was originally published on Medium.com on 16 August 2020.

Fellow Remainers, wise up

We’ve had three and a half years to make our peace with Brexit. Let’s make better use of the next three and a half

In the last parliament, MPs who opposed a hard Brexit were in the majority and had real power. Sadly they squandered it, and now they have little or none.

There turned out to be no concrete option they could agree on. Theresa May’s Brexit was too hard for almost all Labour MPs and too soft for many Tory MPs. As a result, an admittedly Leave-tilted Brexit compromise fell, as did the prime minister who negotiated it. She was, predictably, replaced by a far more hardline successor.

Boris Johnson pivoted from No Deal in all but name to a Deal — abandoning regulatory alignment and dropping May’s promises on the Union. Then Tory MPs had to choose between Northern Ireland’s unionists and a hard Brexit for Great Britain. Meanwhile, referendum-sceptic Labour MPs were confronted with the price of their inconsistencies. As a result, a narrow majority emerged for a much harder Brexit. And thanks to last year’s election, that majority is now beyond doubt.

So now opponents of Boris Johnson’s Brexit have to rely on embarrassment and political pressure, not hard political power. There’s no point pretending: they have far less chance of changing policy as a result. But keening and wailing until perhaps we rejoin the EU one day isn’t much of a policy, and parliamentary democracy needs an effective opposition.

So given where we are now — leaving in a week, like it or not — what should opposition MPs and campaigners do?

1. Don’t fight the last war

In 2015, a narrow majority of seats and votes went to parties who backed a referendum on EU membership. The 2016 referendum delivered a narrow but clear vote for Leave. In the 2017 election, both major parties pledged to deliver some form of Brexit. And in last year’s election, ‘get Brexit done’ secured the largest parliamentary majority since 2001.

We don’t have to change our minds about Brexit. I still think it’s a historic tragedy and an enormous policy error. But while people have every right to campaign for whatever aims they choose, the wise thing is to recognise the parameters the voters have set for us on three separate occasions and work within them for now. (Yes, 52% of voters backed pro-referendum or pro-revocation parties. But voters are not stupid. If it had been their priority, more of them would have voted tactically. They didn’t.)

No one should assume the EU will be in any hurry to radically renegotiate by 2024, even if Labour finds a compelling political project in time. It’s also a pretty good bet that most voters will think they never want to hear the word ‘Brexit’ again by then. (In fact, they’re already there. They essentially voted to get Brexit off TV on 12 December.)

That means the future EU-UK relationship may well be fixed, in outline if not in detail — life outside the EU is a constant negotiation — for years to come. Like it or not, the national interest requires the government to make a success of Brexit — or, more likely in my view (but I hope I’m wrong), the best of a bad job. The sooner Remain MPs and parties recognise that, and make it clear they do, the sooner they might get a hearing. Labour and Lib Dem MEPs’ decision to vote against the Withdrawal Agreement next week — when they know the consequence of it falling would legally be a No Deal crash-out at 11pm next Friday — is not a good start.

2. Don’t pick every battle

I get why people do this. Really, I do. The Big Ben bong saga, Union Jacks flying down the Mall on Brexit Day, commemorative coins, blue passports: they all feel designed to aggravate. And I expect they often are: cries of irritation from ‘Remoaners’, refracted through social and tabloid media, are part of the point.

As a rule, though, if your opponents want you to do something, you should pause before going ahead and doing it. The current government won its majority on the back of the other side of the culture war. Playing along energises parts of its voter base. It makes it harder to get real issues across. And fairly or unfairly, it fits a ‘Remoaner’ stereotype we need to shake off.

So when faced with such things, ask yourselves a basic question: do they actually matter? If the answer is ‘no’, try to ignore them. Does it matter whether Big Ben bongs next week? No. Does it matter if we have Union Jacks on the Mall? No. Does it matter if we see a 50p coin with an unattractive typeface reminiscent of Monotype Corsiva once or twice? No. Does the colour of our passports matter? No. Let Leavers have them and focus on something which does.

3. Don’t kick away ladders ministers might climb down

One of the most important pieces of soft power an opposition has is deciding when not to oppose. In a system whose adversarialism engenders juvenility, it’s easy to reject proposals, mock U-turns and point gleefully at climbdowns. That’s par for the course in British politics. But given the stakes, the priority shouldn’t be finger-pointing. It should be making it easier for the government to do sensible things and harder for it to do stupid things.

For the most part, this principle was nowhere to be seen in the last parliament. Far too often, MPs sniped at May’s government in both cases. For instance, Labour said it wanted a softer Brexit for most of the last parliament. So why did a party which said it wanted a customs union object to the fact that May’s backstop included a customs union?

The most urgent question is whether Boris Johnson will U-turn on extending the transition period in time for the legal deadline of 1 July. After that, the question is whether we find a fudge or face a fall on 31 December. In the unlikely event that Johnson changes his mind, it will be hard not to crow. If he panics in the autumn and we scrabble for a fudge — perhaps referring to the transition in a new, basic FTA as the status quo ante from which we’re moving and, by including ‘implementation’, extending it in all but name — the urge to expose it will be hard to resist.

Nonetheless, MPs, campaigners and others who want to blunt the edge of Johnson’s hard Brexit should resist. A decent deal takes time. We need the government to buy it. The last thing we should do is join with the most extreme Brexiteers in begrudging the purchase. If we borrow ‘dynamic approximation’ from Ukraine’s DCFTA, or agree to align with parts of EU law, the same applies. If you prefer a softer Brexit to a harder one, don’t scream about disguised rule-taking if you get some of what you want.

4. Don’t dismiss every possible opportunity

The European Union is a great European achievement. It has done more than any other organisation in human history to change the way European states relate to each other, to place them on a basis of law and not just power. Its economic, geopolitical and human achievements are remarkable. Part of the tragedy of Brexit is that pro-Europeans only made a case against Brexit, not a case for the EU, until far too late.

Nonetheless, European integration is a set of institutions and a body of law. It is not the organisational equivalent of Sir Galahad. It has faults. EU membership has downsides; there are some positive features of life after leaving. The far larger number of downsides (in my view) doesn’t mean they don’t exist. Not even the most starry-eyed British pro-Europeans think the Common Agricultural Policy and Common Fisheries Policy are great European triumphs, for instance.

Above all, Brexit may at least return some issues to the arena of democratic discussion. I am not saying the EU has no democratic aspects. It does, and I always thought we should have done more at home to make use of them and to up our own democratic game. But formal institutions can’t substitute for public engagement. And British people rarely identify with or follow the European Parliament on a day-to-day level.

For the first time in decades, trade, agricultural subsidies, fisheries management — and EEA/Swiss immigration — will be on the democratic table at UK level. That means people on all sides can make their case for their view of how we should do things. For instance, I’d love to see the UK lead the world in how its parliament scrutinises trade negotiations. I don’t actually know where exactly I think the balance between open trade and food security should lie: I’d welcome a proper debate about it. Don’t let mourning for EU membership close off any thought for how we do things in future.

5. Don’t make yourself sound like you despise the country

The most tone-deaf continuity Remainers and the most zealous Corbynites have very few nice things to say to each other. But sometimes they have more in common than they care to admit. And they share a certain tone towards the country in which they live and whose people they want to win round to their way of thinking.

However they voted in 2016, most people in Britain have an affection for the land they call their own. As it’s Britain, what that land is varies depending on where you are. For most of us, which one we’re talking about depends on when you ask us. And it’s not necessarily a demonstrative or performative thing. Nonetheless, ‘we are useless, everything we make and do is useless, vote for me’ is not a winning message for people to hear — even if it’s not what you really think.

You don’t need to paint Britain as a benighted disaster zone to say a harder Brexit is worse than a softer one. You don’t need to label the British people the most prejudiced in Europe — they really aren’t — to call out the Home Office. You don’t need to sneer at British manufacturing to defend its just-in-time supply chains. You don’t need to see the Union Jack as an affront to see yourself as a citizen of the world. You don’t need to disdain Britain’s distinctive voice to want it to join the choir.

Our aim is not to stop an awful country from becoming the rainier version of the apocalypse. Our aim is to get the best or least-worst outcome for a good country which isn’t being well-served by its government. Other countries’ pro-Europeans always twin the flag of Europe with their national flag. Learn from them.

Grown-up opposition

Brexit has always been too serious an issue to treat as a normal political football. Sadly and unsurprisingly, that didn’t stop many politicians. And it turns out that in the battle of the anti-compromisers, the hard Brexiteers held the most cards.

I hope progressives can do better in the next three and a half years than they did in the last three and a half. I am too much of a realist to expect them to revolutionise policy. But they can start to re-earn a hearing. They can try to soften government policy and encourage more rather than less sensible government strategy. They can look to the future — and maybe they can avoid exacerbating the wounds in our body politic. I hope they manage.

This post was originally published on Medium.com on 24 January 2020.

Take votes seriously

We’re treating the whole electoral process as a partisan football, and it’s bad for democracy

Today the House of Commons will vote on, and probably reject, an early general election under the Fixed-term Parliaments Act 2011 (FTPA). It will do so for a range of reasons. A lot of Labour MPs fear the verdict of the electorate. Some MPs still want a second referendum on EU membership before any election. And others are arguing about the date and the format.

I accept that elections are the core of politics. Inevitably, they’re subject to politicking. But we should expect some basic seriousness about what needs to be in place for the public to have confidence in them. This is, obviously, true of all sides. But oddly, much of the worst ignorance and indifference is currently coming from those keenest to dismiss the legitimacy of the 2016 vote.

A referendum is not an on-off switch

Many still argue that a referendum should be held before an election (or perhaps on the same day). Some still pursue the chimera of a caretaker government. Others seem to think that Parliament can, as it did with two extension requests, legislate to impose one on the current government.

It’s painfully clear that this government would not play ball. The idea that a second referendum can happen without a government which will is absurd. This is not the Benn Act. The European Union Referendum Act 2015 was a much more complicated piece of legislation (67 pages long), related to the Political Parties, Elections and Referendums Act 2000. There were also 132 pages of conduct regulations made by ministers under the Act. The Electoral Commission tested the question set out in the Referendum Act and did some proper research, at the government’s behest.

If you doubt that these things matter, look at the row between Scottish nationalists who want a Yes/No question and Scottish unionists who prefer Remain/Leave. Who is going to ensure any question in a second referendum is scrutinised properly with no government willing to refer it? Who is going to deal with the conduct regulations? Are they all going to be in statute? Will a new Act delegate another group of MPs to play government without civil service backing?

The Constitution Unit suggested 22 weeks as a ‘bare minimum’ timetable. I might add that both the 2014 and 2016 referendums won express election mandates before being held. I would argue a rerun would benefit from a similar mandate. But to suggest a rushed six-week timetable for a new vote, steered through in a panic and with none of the consultation, lead-in or public information in the last one will be seen as legitimate by whoever loses it is farcical.

We do not have a government willing to cooperate with a second referendum. It is abundantly clear that we are not going to get one in any reasonably foreseeable circumstances in this parliament. Unless Labour decides that someone apart from Jeremy Corbyn can lead one and unless whipless Conservatives suddenly decide they prefer a referendum to Johnson’s Deal, the whole thing is a parlour game. Worse, it could be a route to a botched and illegitimate referendum.

The franchise is not a plaything

Most mutterings about changing the franchise before the next general election are probably excuses not to vote for one, in the main. Nonetheless, more than one parliamentarian has suggested that any one-line Bill to allow a general election could be amended to extend votes to 16-year-olds. Commentators have speculated about doing the same for EU nationals. I dislike the idea of a one-line Bill to get around the FTPA in any event: I think it sets an unpalatable precedent. But this would be a wholly different level of bad behaviour.

Franchise extensions are reasonable things to support in principle. I’m mildly in favour of votes at 16 and I haven’t made up my mind about the nationality question. But the idea of trying to change either in less than two months is absurd. For a start, 16- and 17-year-olds are not currently on our registers as enfranchised voters. Some are registered as attainers (soon to be but not yet eligible to vote). But even with that caveat, you are talking about registering over a million people in weeks with no public information campaign.

EU nationals don’t raise any new registration issues. They should already be registered for local, devolved and European elections, though this has not been problem-free in the past. But again, you can’t deliver the sort of public information campaign you need in time. There are reasons the OECD recommends a lead-in of at least a year for changes to electoral fundamentals.

Democracy is not a process to be tampered with lightly

To their credit, the Liberal Democrats (co-sponsors of the one-line Bill approach) have made clear they wouldn’t support changing the franchise in this way. But too often, because they’re playing British politics for such high stakes, MPs risk forgetting the need for a sense of basic political self-restraint.

Democracies cannot thrive if politicians have no respect for the rules of engagement. That’s especially true for a country like the United Kingdom, where we have so few formal protections and rely so much on good behaviour. We, more than most, need our governments and our legislators to draw the political line for themselves. For the most part, I’ve been sympathetic to Parliament asserting its power against a government which treats it with contempt. But there’s a limit.

In the end, MPs who want a second referendum — or, indeed, anything but Johnson’s Brexit — are going to have to face the voters in a general election very soon. They will have to do so under the existing rules for elections. They should recognise that, engage seriously and make their choice. And they should stop salting the democratic earth just to put off the evil day for a few more weeks.

This post was originally published on Medium.com on 28 October 2019.

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.

Legitimacy’s limits

Parliament has the right to cancel Brexit without a referendum. That doesn’t make it wise

As the Brexit debate drags on, so it polarises. There was a time when calling for a second referendum caused some controversy within the Liberal Democrats. Few, if any, considered a No Deal Brexit a viable choice for the United Kingdom.

A mix of prime ministerial escalation, Leaver radicalisation, Remainer entrenchment and parliamentary paralysis — apportion blame as you see fit — has changed everything utterly. The public seem less polarised than the politicians, but many also just want it all over one way or another. So I can see why simply revoking Article 50 and cancelling Brexit, as the Liberal Democrats now promise if they win a majority, is attractive to some.

There is a case for that rooted in representative democracy. Our current stalemate stems from a failure of direct democracy — a blunt mandate with no government behind it and no one obliged to see it through. Most of our representatives backed Remain and are trapped with a mandate they deem a mistake. Parliament cannot agree on any deal. The question on any referendum ballot paper will be fraught. It is far from certain that enough voters would accept losing this time around. Better, the argument goes, for Parliament to face its responsibilities, reverse a decision and be judged by voters.

I still think MPs made a grave mistake in not ratifying the Withdrawal Agreement before it was too late. In my view, we will all pay a heavy political price for that failure. I dislike referendums’ reductiveness and fear their divisiveness. They should be held rarely and with care. The prospect of another referendum campaign evokes something near to dread. And yet, if MPs wish to stop Brexit, the idea of doing so with no direct mandate from the people fills me with more foreboding still.

Referendums give discrete answers to discrete questions. By their nature, a question with only two answers produces a majority outcome. In the UK, we have used them arbitrarily, whether to paper over the cracks within a party or to lock in a decision for the future. But so far, we have accepted the results of referendums authorised by Parliament as politically binding, though usually not legally effective on their own.

General elections, meanwhile, raise a slew of questions and produce elected individuals. The question asked of voters has as many answers as there are candidates. Given our voting system it is rare indeed for the government of the day to reflect a majority of the popular vote in any sense; with a more proportional system, any such majority would still result from negotiation and not directly from elections. The Liberal Democrats — the party of fair votes as they (and I) see them — ought to see a problem with cancelling a 52% referendum result on a voteshare somewhere between 35% and 40%.

They, and others tempted by their policy, should also consider the risk of reversal. The idea that referendums solve difficult issues is something of a bad joke in Britain today. It is not obvious, however, why lowering the threshold for such major political change will add any great sense of finality. Quite the opposite: if one government can revoke Article 50 without a referendum, its successor can trigger it too.

Unionists should also steer clear of that precedent. The Scottish referendum may have poisoned Scottish politics, but there was a time when the SNP argued a majority of Westminster seats would be enough. Some say the same about a majority in Holyrood. To her credit, Nicola Sturgeon has resisted those voices. And of course, it is clear that the end of the Union is not in the Scottish Parliament’s legal gift. Nonetheless, some examples are better not to set. I have no wish to pave a road to Catalonia.

But above all, advocates should consider whether it is democratically tenable to seek to reverse a referendum without a referendum. ‘Undemocratic’ is a very strong term, and not one I will use. But such a course pits parliamentary against direct democracy with a starkness which is unwise. Its democratic legitimacy can reasonably be questioned, far more so than a second referendum mandated (like the 2016 one) by a general election. And it is dangerous in any democracy to get too far out of line with what huge swathes of voters deem legitimate.

It also privileges an overly narrow sense of a representative’s role. Ultimately, direct democracy is a periodic add-on and representative democracy is an essential. Those of us who mainly emphasise the latter often cite Edmund Burke’s famous speech to the electors of Bristol:

Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.

I believe in that maxim. The retort that Burke lost holds little water: it was for him to make his judgment and for the voters to make theirs. But ‘judgment’ and ‘opinion’ are different things, and they only partly overlap. In a modern democracy, MPs’ judgment must balance many factors. Of course personal opinions must be included in that balance. But so must party policy (parliamentary democracy needs parties), what might command a majority in Parliament, constituents’ opinions — and, yes, referendum results.

Representatives are not delegates, but nor are they philosopher kings. They should have played that role better and found a compromise before our politics became this poisoned. But if parties seek to reverse Brexit rather than meet the other half of the country halfway, better by far to recognise the enormity of that shift and at least present it for ratification.

This post was originally published on Medium.com on 16 September 2019.

In praise of the Fixed-term Parliaments Act

It’s been blamed for a multitude of sins, but has done more good than harm during the Brexit process

Constitutional conservatives often say that obsessing about how we’re governed changes no lives. As a reformer myself, I think this underplays how much the rules which govern who holds power and how they can wield it matter. But I accept you can get too fixated upon the abstract and forget that politics isn’t just about its rules.

Oddly, constitutional conservatives’ obsession with the Fixed-term Parliaments Act (FTPA) reverses the stereotypes. The FTPA removed the Prime Minister’s power to advise the Queen to dissolve Parliament and call an election. Instead, it offers two ways to trigger an early election. Two thirds of MPs can vote in favour of one. Or a simple majority can pass a specific motion of no confidence and not pass a specific motion of confidence within 14 calendar days.

The poor old FTPA has been blamed for a vast array of Brexit obstacles. It gets blamed for May’s early election, sinking her deal and general political paralysis. All manner of ministerial and parliamentary chicanery is laid at its door by its critics. And I find it hard to think of a more poorly-evidenced charge sheet.

Empowering the executive?

In 2017, the FTPA was mocked for strengthening, not weakening, Prime Ministers against Parliament. Theresa May vaulted over its provisions with ease — 522 MPs voted to hold an early general election in 2017. Scores feared for their seats, but feared being seen to reject an early election too. It was undoubtedly called for political reasons, and far earlier than we would normally expect in the UK.

But in the end, MPs had the right to reject an early election and decided not to exercise it in their own interests. Had the FTPA never existed, Theresa May would simply have advised the Queen to dissolve Parliament. There is no question that the Queen would have accepted that advice. I’ve seen some argue a sense of propriety might have dissuaded May from asking for a dissolution. I’m far from convinced that any self-denying ordinance applied, and nothing since 2016 suggests one would have been honoured.

And more than that, Theresa May had a decent case for seeking an election in 2017 — one I appreciate more now than I did then. No government can choose a Brexit outcome without a large enough majority to have some rebels and ignore them. The failure of the Withdrawal Agreement on three occasions makes that painfully clear. So there was a reasonable case for an election, the FTPA makes provision for early elections in some cases, and the House of Commons agreed to one. No one can blame it for how the parties campaigned or how the votes fell.

Engendering indiscipline?

More recently, the FTPA’s critics have blamed it from freeing MPs from responsibility — decoupling the government’s survival from that of its programme. In the past, a government could have made a particular policy choice a matter of confidence. Its MPs would then have been, the argument runs, under pressure to back the Government or face the voters.

I see the theory. But it places far too much weight on constitutional fixes for political problems. The Government lost its meaningful votes by 230 and 149. Even a vote solely on the Withdrawal Agreement fell by 58. When John Major resorted to making his policy on the Social Chapter a matter of confidence — which he did by choice, not constraint — he had only lost by one. I concede that even some of the three-time rebels might back the Government in some circumstances. I think it’s inconceivable that every single one would have done if it hadn’t been for one Act.

So in reality, the ‘vote of confidence’ as a device to resolve Brexit would have fallen apart in any Prime Minister’s hands. She would have known her MPs would vote her deal down anyway, read the runes when it came to facing the voters and backed off. The logjam of a Prime Minister and House of Commons would have remained unbroken.

Evading elections?

Self-evidently, the FTPA blocks some elections which a Prime Minister would otherwise hold. We are now in exactly that position. Boris Johnson would prefer to fight an election in time to make good on his pledge to leave the EU, with or without a deal, on 31 October. Parliament wants him to try to take No Deal on 31 October off the table and has legislated to force him to do so.

Clearly, our current MPs cannot find a majority for any positive Brexit policy. Without the FTPA, Johnson would probably have advised the Queen to dissolve Parliament by now. As it stands, he has to wait — seemingly until we either have, or definitively will not get, an Article 50 extension. No Deal wouldn’t be ruled out in a November or December general election. Nothing but revoking Article 50 or ratifying a Withdrawal Agreement can do that. But the prospect of a mid-October election with days to go has been ruled out.

I can see a democratic case for putting ‘31 October, do or die’ to the people. But the case that 31 October and 31 January are so different that all other considerations must go by the wayside is weak. With an election on 15 October, the UK would have had to try to make full-on crisis preparations for No Deal in the middle of the campaign. Whether any real application of purdah or any real attempt to manage the crisis would have given way I don’t know. I do know it’s not a sensible choice to make. More importantly for these purposes, I think my MPs should be able to decline to force that choice.

So if we only hold an election once an Article 50 extension is secured, in my view the FTPA will have done its job. It will have strengthened the House of Commons against a Prime Minister which wanted to pre-empt it. It will have allowed MPs to prevent Boris Johnson’s congenital irresponsibility from badly damaging any hope of mitigating the damage of No Deal, triggering an election where the normal democratic conventions would have been shredded by No Deal preparations, or both.

Find another alibi, politicians

So in short, the FTPA didn’t stop the 2017 election — but probably for good reason. Any theoretical tool it denied Theresa May before she fell from power would have broken in her hands anyway. And at the moment it’s playing exactly the role it should: stopping an irresponsible Prime Minister from abusing his position to manipulate the electoral calendar.

To blame the FTPA for our current crisis, in whole or even in part, is to make the exact mistake constitutional conservatives usually mock. It ignores political failings — of both MPs and governments — and blames them on the rules. It is a neat irony, if nothing else. But it remains misconceived.

This post was originally published on Medium.com on 14 September 2019.

Uncompromising compromisers

The self-inflicted fate of Labour’s referendum sceptics

Since the EU referendum, I’ve thought our least bad option was to implement it in moderate fashion — to meet each other halfway rather than poison our politics or burn down our economy. I still think that. It may be the third choice out of three on first preferences. But I prefer universal grumpiness to pleasing one half of the country, enraging the other and filling both with mutual loathing.

So I’ve had a lot of sympathy with Labour’s reasonable second referendum sceptics. I think Lisa Nandy is right to fear the damage it could do to our politics. I completely understand why Ruth Smeeth and Gareth Snell worry about killing off the alliance between Hampstead and Hull. I see the People’s Voters’ confidence of winning a referendum and think hubris begets nemesis. I don’t want the UK to become an embittered cuckoo in the EU nest.

But at some point a diagnosis requires a prescription. And Labour’s sceptics have almost all refused to grasp, still less follow, the logic of their views. That logic was fairly clear. Save for Kate Hoey (with whom I have no sympathy), their problems with May’s Brexit related to the future relationship, not the Withdrawal Agreement. It was and is abundantly clear that the Withdrawal Agreement is the only one on offer and the Political Declaration is not binding. Quite rightly, almost no Labour MPs are prepared to countenance No Deal. They therefore needed the Withdrawal Agreement, and as much input for MPs into the future relationship as they could get.

Further, many of the Labour sceptics didn’t want a Brexit all that different from May’s. They usually wanted to end free movement. They wanted a customs union, and they usually wanted more regulatory alignment than the Tory Brexiteers. The Northern Ireland backstop entails a customs union for the foreseeable future anyway, so the real differences were relatively minor. Dynamic alignment on employment law rather than a level playing field is not a stake for which anyone should gamble the country.

In fairness, five current and two ex-Labour MPs did, at some point, vote for what they said they wanted. Kevin Barron, John Mann and (no longer Labour) Ian Austin did from the beginning, along with Frank Field (who’d left already). Caroline Flint did from the second meaningful vote. And Rosie Cooper and Jim Fitzpatrick voted for the Withdrawal Agreement on 29 March. No other Labour MP in favour of an orderly Brexit has cast a single vote to concretely advance their cause.

They may have voted for one or more non-binding options in the ‘indicative votes’. But any option they cared to name required the Withdrawal Agreement first — the Agreement they refuse to help ratify. And it rapidly became clear that even when the Government offered the main procedural requirements they could reasonably have hoped for on MPs’ input into the future relationship, it wouldn’t be enough for them.

By then it was far too late not to hold the European elections. And in holding them, we gave new shape to the radicalisation of British politics on Remain/Leave lines. The Labour sceptics gave their internal opponents the electoral argument they’d always lacked before: that if Leavers would punish a reversal, Remainers would punish a compromise. The result? More Labour MPs now fear losing votes to the Liberal Democrats than to the Brexit Party.

Sealing the fate of the Withdrawal Agreement also, finally, sealed the fate of Theresa May. Obviously Tory MPs had far more to do with her political demise than Labour MPs, who could hardly be expected to sustain her. But the likelihood must be that our next Prime Minister will be more, not less, hardline than she is. And if the Withdrawal Agreement is dead in Westminster, Brussels has no intention of allowing another to be born.

Partly as a result, the middle ground is dying. MPs who want a deal and a compromise — rather than a culture war grudge-match via a second referendum or an accelerationist, destructive No Deal — have no viable leaders and no concrete offer. Unless a genuine pragmatist wins the Tory leadership election, the Withdrawal Agreement seems dead. We are staring down the barrel of a No Deal or No Brexit choice.

I’d have voted for the Withdrawal Agreement. And until lately I’d have voted against a second referendum. But I can’t call myself a realist and argue for all MPs to resist a referendum when MPs who say they want a deal have shown they’ll never vote for a real, not imagined, Brexit. Our legal default remains No Deal. And so we can either seek to reverse Brexit or be dithered off a No Deal cliff.

I prefer a second referendum to revocation with no democratic mandate and to No Deal. I really don’t want one. I don’t want to turn our politics into something like America’s without the checks and balances. If the chance for compromise re-emerges, I’ll be relieved. But for now, I see no such hope.

The diehards on all sides must take their share of blame. But a special responsibility rests with those who said they wanted a compromise and never followed through. They have no right to blame moderate Remainers who seek other ways to stop disaster.

This post was originally published on Medium.com on 4 June 2019.

Blame games

Prime Ministers rarely acquire nicknames like ‘the Maybot’ without reason. We’ve mocked Theresa May’s inability to engage on a human level. We’ve despaired at her refusal to engage meaningfully across party lines. We’ve derided the Political Declaration she’s come back with as an incoherent mess. And we’ve condemned her hectoring, lecturing tone.

The Prime Minister’s faults are legion. In fairness, she inherited a deeply divisive task with sky-high stakes and a divided, complicated, multinational state. But for most of her premiership, she spoke only to the hardliners in her own party. She’s presided over perhaps the worst failure of expectation management in postwar British political history. She set red lines she couldn’t defend, retreated without admitting it, harangued people without persuading them and confused truculence with principle.

Wednesday’s statement was in many ways a classic of its genre. The woman who coined ‘will of the people’ and ‘citizens of nowhere’ showed as little ability to reach out as ever. Her pitting the people against Parliament has been greatly exaggerated, but it’s not a framing any Prime Minister should deploy. More than that, she launched a broadside against the people she needed to persuade. It was worse than outrageous: it was stupid. It is no wonder she came as near as she was able (being Theresa May) to apologising the next day.

And yet, I can’t help feeling the outrage misses a fundamental point. Like it or not, Theresa May is right that Members of Parliament have a clear, crucial choice to make. She is also right that they are declining to make it. Their indecision carries a heavy cost. Uncomfortable though it may be to say so, our government’s (extensive) faults are getting too much of the blame and our legislators are getting too little.

It’s not good enough to bemoan an unenviable choice forced upon the legislature: the legislature voted to have it forced upon itself. MPs voted by 498 to 114 to authorise the Prime Minister to trigger Article 50. It was no secret that would start a two-year countdown. They still gave her that power without conditions and without constraint. Of course many of today’s angry MPs voted differently, but literally hundreds of representatives who voted to give the executive carte blanche are now throwing up their hands in horror because the executive took carte blanche.

Since then, MPs have periodically taken the opportunity to block things. They’ve often taken the chance to express their dislike of certain outcomes — pretty much every outcome at some point or another, in fact. But they have so far proven totally incapable of supporting anything themselves. They’ve also failed to take the reins themselves: presented with two opportunities to seize control of the legislative agenda from government, they buckled. Yes, the votes were whipped. If it’s as important as that and the executive is as outrageous as that, then break the Whip.

Why haven’t they? To a large extent, because they don’t really want to be responsible either. The truth is that denialist fantasy is just as prevalent in Westminster as in Whitehall — if not more so. By default, we have 19 days until we leave the European Union with no legal relationship in place. The package deal on the table includes a legally-binding Withdrawal Agreement, a non-binding Political Declaration, an interpretive Instrument relating to the Northern Ireland backstop and a Unilateral Declaration on the UK’s view on when and how it can leave it. The road to any negotiated Brexit — any negotiated Brexit at all — begins with a Withdrawal Agreement. Short of carving it into the French coastline so we can see it from Dover, I’m not sure how the EU could make it clearer they will not renegotiate that Agreement.

That means that MPs who say they want a deal but won’t vote for this one are either rejecting any deal without having the courage to say so or gambling with the cliff to change, essentially, a very solemn press release. The EU have been perfectly clear, furthermore, that the very solemn press release can be built upon and evolve if the UK’s red lines change. They’ve also made it clear that delaying Brexit eats into the transition period, so we’re not gaining any time at the other end of this process by dithering now.

To add insult to injury, the ideas being thrown around by MPs are often either a joke or too difficult to square in a matter of weeks. The ERG’s absurdist fantasies and daydreams of No Deal liberation have been eviscerated elsewhere, and as I never expected any better from the ERG I’ll take them as read here. But the official Labour position dances around every possible issue. It promises a customs union with a meaningful say in EU trade deals, which we know can’t happen much beyond some souped-up consultation. It makes a customs union in the Political Declaration a red line when the backstop in the actual Withdrawal Agreement mandates one in all but name. It calls for a strong relationship with the single market and fails to tell us what that means.

‘Norway Plus’ or ‘Common Market 2.0’ is more carefully considered than many alternative plans. But what is their plan for making sure EFTA members will back UK membership of EFTA together with a derogation from EFTA’s fundamental purpose as a free trade association? Why is a bespoke arrangement laden with special exceptions being promoted as something we could join by the summer? What happens if customs duties are never sorted out via technology? They say the backstop is unlikely to be used, so what’s the plan for free trade in agriculture and fisheries, VAT for goods and excise? They argue for an ultra-soft Brexit by saying we’d be far more robust in using our EEA rights than Norway. That’s inevitable given our size and political culture. I agree the EFTA EEA members seem willing to accept us in the EEA as a constructive member. Are they going to accept us as a pre-pledged cuckoo in the nest?

Meanwhile, far too many People’s Voters are trying to shoot everything else down to try to force their option through and gambling with the cliff just as much as May. Even if they’d win a referendum, which I doubt, they’ve given no thought that I can see to what happens after an inevitably narrow victory. Do they have anything to say about the impact on the EU itself? What about the operation of our politics? Why are some MPs who say No Deal would be a catastrophe hinting at putting it on the ballot? Many of the MPs involved originally said they believed the referendum result should be upheld and told their constituents so in 2017 — so what changed their minds? Why do they blur the lines between the Withdrawal Agreement and the Political Declaration when it suits them and shout about a ‘blind Brexit’ when it doesn’t?

At the time of writing, we’re in too advanced a state of governmental and parliamentary chaos to be sure about anything very much. It looks like we will at last get a series of indicative votes, in the hope of finding something Parliament is prepared to support. It looks like we will at last get a series of indicative votes, in the hope of finding something Parliament is prepared to support. But if we’re going to do that, we need an honest debate, and MPs show little sign of having one. It’s not good enough for the ERG to prattle on about a free trade agreement for the UK, not Great Britain, as if the EU’s demand for the backstop can somehow be waved away. It helps nothing but Jeremy Corbyn’s electoral prospects (and possibly not even those) for Labour to carry on pretending that its Brexit plan is radically different from the Tories’. It’s no good for people to argue for soft Brexits on the basis that we can be suitably disruptive if we feel we need to be and expect the EU not to react. It serves no one to sell a refusal to take ‘Leave’ for an answer as a democratic boon.

For me, the reaction of some MPs to Theresa May’s statement by saying they were now less likely to vote for the deal was the final straw. Fine: the Prime Minister is as sensitive as a tank and as consultative as Sir Humphrey Appleby. Perhaps we could focus more on the fact that our country is still on course to crash out of the European Union with no deal in 19 days. The idea that deciding to let that happen in a glorified fit of pique bolsters liberal democracy is an insult to our intelligence. And as a citizen, I have had enough.

MPs should spend more time proving Theresa May wrong and less time moaning about her domestic diplomacy. They can do that by engaging, seriously and urgently, with the choices before them. They can recognise that any deal requires this Withdrawal Agreement, and cooperate with the Government in getting a Withdrawal Agreement Bill passed. That buys more time while we debate any changes to the Political Declaration, if we really have to threaten the country with No Deal just to change a glorified press release. (If we must go through a second referendum, its coming into force can be dependent on the result.) MPs could even surprise me by actually following through on the result of an indicative vote in binding votes.

If they can do some of that, they just might give the rest of us some reason to take their collective amour propre more seriously. There was a time when I believed in politics and defended politicians’ profession. I am almost out of faith. Please, Parliament, give me some reason not to become just as cynical as everyone else.

This post was originally published on Medium.com on 24 March 2019.

The Brexit Deal: avoiding the worst comes first

MPs should choose the dispiriting, but safer, course

Brexit’s endgame has been announced many times since 2016. Each announcement’s proved premature so far. The UK will wrestle with Brexit, in one form or another, for many years to come. But the Withdrawal Agreement and Political Declaration signal a turning point. Accepting them — or not — is a frighteningly big choice.

I am grateful that I don’t have to make that choice. But were I an MP, I would with enormous regret vote with the Government on Tuesday.

Why reject a second referendum?

I still think I was right to vote and campaign for Remain. I think Brexit will have baleful consequences. And my country is abandoning a noble ideal. Still, I’m deeply sceptical of any second referendum. My opposition rests on electoral, democratic and strategic grounds.

Would it succeed?
Polls have shown a gradual drift towards Remain since 2016. Some suggest Remain could win as much as 55% of the vote. Most Britons think Brexit is going badly. Leavers themselves sell an ever less cheerful prospect for the future as the months go by.

Looking deeper, though, not that many Leavers or Remainers are changing their minds. The main driver of the shift seems to be people who didn’t vote in 2016 — especially young people. As a veteran of many campaigns, I generally believe young non-voters’ promise to vote when I see them on polling day.

I also think the optimists are ignoring how any campaign would unfold. The rumoured slogan for any Leave Mark II campaign — ‘Tell Them Again’ — would be very powerful. Frankly, I think ‘We Told You So’ would be crushed. I see no reason to believe warnings of the consequences would work this time when they didn’t in 2016. And Brussels has hardly endeared itself to British voters since then.

Finally, and with apologies to people who mean well, I don’t think Remainers have got any better at talking to swing voters or soft Leavers. Many seem worse — promising things no one will believe (EU-wide curbs on free movement), complaining about the 2016 vote (that bus, Russian money) or talking about Leave voters as if they’re stupid or bigoted (blue passports, maps covered in pink).

Would it be right?
Referendum re-runs aren’t inherently undemocratic. The rights and wrongs depend on national context and particular circumstances. And nothing can be wholly permanent in a democracy — though we do normally expect to implement democratic decisions before we reverse them.

But the UK context and the nature of the 2016 vote make a re-run uncomfortable at best. We’ve only had two UK-wide referendums. The AV referendum has of course been upheld. The EEC referendum wasn’t followed by another for 41 years. We tend to see referendums as rare, ‘rules of the game’ events. And we did tell people this result would be decisive in 2016. (I handed out the leaflets saying there’d be no going back myself.)

There comes a point at which Parliament can fairly draw a line. There’s no democratic duty to risk food or medicine shortages, or an electricity crisis in Northern Ireland. And the form of Brexit is squarely for Parliament to decide. But while politicians have no duty to rush to disaster, voters have a right to expect them to try to carry out their instructions competently.

Would it be good for our politics?
We should also ask ourselves what a second referendum could help do to our politics. I’m not playing the ‘there’ll be riots’ card: Remainers are right to disdain dodging a vote for fear of violence. But the ever-growing, polarising ferocity of our democratic culture worries me. A healthy liberal democracy depends on not pursuing every political fight to the finish. It relies on an understanding that losers as well as winners must consent.

That is one reason I regard the rise of the Brexiteers on one side and the Corbynistas on the other with such deep unease. But I have watched too much of the Remain movement take on some of the same characteristics. When some Remainers talk about the Biased Brexit Corporation and high-profile Remain figures blame foreign corporate interests for Remain-minded newspapers advocating compromise, it’s no longer just the fringes of left and right which have a problem.

I don’t want to see the UK become the US without the checks and balances. I believe we need to rediscover how to meet each other halfway. And I have no wish to be dragooned into a cultural cold war in the name of reversing a referendum result.

Would it be good for Europe?
Suppose a second referendum were won. Does anyone think the UK would suddenly become a comfortable member of the EU? Did 1975 turn the British into keen Europeans? I am well aware my country is eurosceptic at heart. It has been throughout the postwar era. Smarting in defeat, Remainers deride 2016’s risk-averse, bloodless campaign. I think we’d have lost by a far greater margin had voters not believed Brexit had risks attached.

The median British voter wants the economic benefits of the EU without the political institutions which make them possible. But the truth is that European integration is and always has been a profoundly political project. It grew out of most Europeans’ bitter experience of what nation-states could do. The British aren’t inherently better on that score, but they’ve mainly been luckier. As a result, while other countries saw a project which helped tame murderous antagonisms, entrench democracy after dictatorship or free them from the orbit of an overbearing neighbour, Britain never really could. I believe in the actual European political project. But I doubt more than 15% of my fellow citizens truly agree with me.

If we won a second referendum while fudging that fact — and we’d have to fudge to have any hope of winning — we’d just store up trouble for the future. How could a country which only voted to say in the EU in a second time because the alternative was too risky play a constructive part in its proceedings? How long would it be before a Conservative Prime Minister called a third referendum? Is any of that in the interests of Europe as a whole? Unless and until our people are prepared to accept that the EU is a profoundly political project and endorse it on that basis, British membership will be profoundly unstable.

If we end up in a position where the only alternative to a guaranteed No Deal Brexit is another referendum, then I agree we would have to pursue it. But it should be a genuine last resort.

Is the Withdrawal Agreement liveable?

If we reject trying to reverse the 2016 verdict, we need a Withdrawal Agreement with the EU. The Political Declaration is a glorified press release, designed to accommodate a range of possible outcomes for now. The Withdrawal Agreement is the legally binding and crucial thing — the key to avoiding a No Deal Brexit. It’s also abundantly clear that it’s the only Agreement on the table.

For me, the main question here is the Ireland/Northern Ireland protocol — the so-called backstop. I am, frankly, indifferent to the section on financial liabilities: we were always going to have to pay, and the costs of No Deal would dwarf them anyway. I would like the Agreement to go further on citizens’ rights, both for UK citizens in the EU and EU nationals here — but it is incomparably better for both than No Deal.

A UK-wide backstop?
Theresa May made a customs border down the Irish Sea a red line. Her focus on customs (only the source of 30% or so of border checks) was always rather arbitrary. Still, the backstop now includes a shared customs territory covering the EU and the UK. The EU had significant concerns about including this, so it’s a genuine concession on their part.

The EU was probably most concerned to stop the UK undercutting EU members in any customs union. The new backstop therefore sets out level playing field commitments not to row back on good practice in taxation, environmental standards and labour and social standards. On state aid and competition, the UK would apply existing and future EU law. These are surprisingly limited requirements. That might be a mixed blessing for the centre-left, but then the line that the EU should be used to save the UK from itself was always democratically dodgy.

But within the single customs territory, ‘the customs territory of the EU’ includes Northern Ireland, and ‘the customs territory of the UK’ is code for ‘Great Britain’. Northern Ireland would have to apply the full Union Customs Code. The EU’s ultimate right to apply customs duties if it considers the UK in breach of its duties applies between Great Britain and the island of Ireland.

Northern Ireland would apply EU law on goods, VAT on goods, excise, agriculture and fisheries (but not the CAP or CFP) and wholesale electricity. In Great Britain, a UK authority would be responsible for state aid. In Northern Ireland, it would be the European Commission.

In short, the principle of different treatment for Northern Ireland has not meaningfully changed. Great Britain has just been allowed to form a customs union with the EU and Northern Ireland to soften it a bit.

The best of both worlds?
The EU and the UK say trade within the UK will be protected. While trade with Ireland is far more important for Northern Ireland than for anywhere else in the UK, Great Britain remains its main market. I can see how significantly reducing damage to trade with Ireland and minimally increasing barriers to trade with Great Britain might be economically better than none of the latter and a vast amount of the former. But that only holds if East/West barriers actually are minimal.

The EU and UK say they will be for two reasons. First, the protocol says it doesn’t stop the UK from ensuring unfettered market access to Great Britain. Second, it requires the EU and the UK to use best endeavours to facilitate trade between Great Britain and Northern Ireland. That includes minimising checks at ports and airports in Northern Ireland.

The first point guarantees nothing in itself. The second depends on Great Britain not diverging very far and the EU making a good faith effort to minimise checks. In the short term, the impact on East/West trade probably would be minimal. But barring a very soft Brexit or a much firmer British commitment than usual to Northern Ireland, I can’t see how you’d avoid a ratchet effect — and that has economic consequences.

The backstop and the Northern Ireland settlement
I understand the fears evoked by new Border infrastructure on the island of Ireland. Avoiding physical reminders for Border communities is an enormous advantage of the backstop. The UK Government didn’t take the issue seriously and didn’t engage with the ambiguity in its own commitments in December 2017 until far too late.

The backstop avoids the Scylla of a hard land border poisoning relations with nationalists. But I fear we’ve sailed into the Charybdis of poisoning political unionism’s willingness to re-engage with Stormont. You can say the backstop in no way changes the constitutional status of Northern Ireland, and formally that’s true. But most of Northern Ireland’s trade and much of its economy would be governed by EU rules with no say at its neighbour’s behest, despite its membership of the UK.

The backstop is also designed to minimise any risk of any Northern Ireland Assembly or Executive influencing how it works. Most backstop-relevant EU rules will take automatic effect in Northern Ireland. The UK would only have to agree to new rules when they neither amend nor replace ones already in the backstop. Even there, there would be no domestic legislation — so the Assembly’s consent would be moot.

EU membership underpins much of Strand Two of the Good Friday Agreement (North/South cooperation). Together with security normalisation, it allowed a wholly open land border. But while Brexit risks that context, the backstop poses a different risk to the Northern Ireland settlement. The 1998 Agreement provided for a carefully defined North/South dimension which could grow by mutual agreement. This one would be enacted over unionists’ heads and is designed to make it near-impossible for them to influence. It partly rewrites the balance of the settlement in a deeply sensitive area.

Is the alternative worse and can we mitigate the backstop?
That said, a No Deal Brexit would be particularly disastrous in Northern Ireland. If the backstop could undermine the settlement there, the impact No Deal could have on that settlement should be self-evident. From a unionist perspective, No Deal’s effect on support for the Union should be taken very seriously. It also looks like most in Northern Ireland support a backstop over a harder Brexit.

For Great Britain, the backstop makes failure to agree on the final relationship in time for 2021 or 2023 less painful than it would otherwise be. It would protect parts of the economic relationship via the customs union. For Northern Ireland, that is also true. But the truth is that Brexit offers Northern Ireland no good options. The interaction between Dublin’s priorities (which I in no way dismiss), Brussels’ red lines (which I think have gone too far) and London’s inattention and incoherence (which are damning) has presented us with a particularly painful choice.

If it passes the Withdrawal Agreement, the UK can do three main things to reduce the impact of the backstop. It can press its case on minimising checks vigorously if and when the backstop comes into force. It can help that case, and reduce unionist concern over divergence, through sticking to EU rules in the areas covered by the backstop. Theresa May has said she would not expect Great Britain to diverge in those areas. In my view, the UK should do what it can to give that commitment legislative force, at least in the absence of devolved consent. (An Act could require ministers to introduce secondary legislation to align Great Britain with Northern Ireland in some areas. It might also include a declaratory section covering primary legislation, drawing on the Scotland Act 2016.) And finally, the softer the UK’s Brexit end state, the less impact the backstop will have.

Do we really have a choice?

If I thought a safe alternative to accepting the deal on the table existed, I’d argue for it. This current Deal probably points to a customs union, less alignment and market access than I want and some checks in the Irish Sea to which I object. Of course, any new Prime Minister will want to revisit the final relationship anyway. I’d like MPs to steer towards a softer Brexit than the Political Declaration suggests. But I’m under no illusions that that’s a sure thing.

But the Withdrawal Agreement is the priority now. The EU is not going to meaningfully renegotiate it. (Even some cosmetic renegotiation may well be a non-starter.) It might tweak the Political Declaration. But risking a disorderly Brexit to reword a solemn press release we’ll ask to redraft later on anyway strikes me as rather pointless.

The idea that Parliament can take No Deal off the table is dangerous complacency. Yes, Dominic Grieve has given MPs an easier way to say what they’d like to be done if they reject May’s Deal. But MPs’ machinations only matter in EU law if they serve to ratify a Withdrawal Agreement, seek to extend Article 50 or require its revocation. Only the third of those avoids the need for a Withdrawal Agreement. And it’s far from clear that a second referendum or any specific and achievable final relationship could command a majority among MPs.

It looks frighteningly plausible that all the factions in Parliament will continue to gamble that someone else will blink so they don’t have to. Some may even think they stand to benefit from No Deal. Tory hardliners welcome it. Some Corbynites think it might radicalise voters and let them go further in government. Scottish nationalists might hope it could carry them to independence.

Many who want a second referendum are happy to salt the earth for anything between No Deal and No Brexit. Doing that makes it very hard to keep just rejecting the Deal off the ballot in any second referendum. But we can’t afford to let No Deal happen. We have no time to prepare for it, insofar as we ever really could. There’s no societal consensus which could make the pain and the sacrifices politically tolerable. The short-term consequences would probably be somewhere between severely damaging and outright catastrophic. And the ultimate potential outcomes include a prolonged and dangerous geopolitical rupture, rapidly accepting the same terms or worse, or both.

Parliamentary brinkmanship is too much of a gamble for me now. I’ve had enough of gamblers in British politics. There is one sure route, and only one, to avoiding a true public policy disaster on 29 March 2019. Reluctantly, and with a very heavy heart as both a Remainer and a unionist, I think MPs should take it.

This post was originally published on Medium.com on 10 December 2018.

Northern Ireland at Westminster: confidence, supply and the principle of consent

Northern Ireland’s MPs rarely play a big role in Commons arithmetic. With only 18 out of 650 seats, they’re rarely decisive in the United Kingdom’s elections. Furthermore, none of the UK-wide parties win seats there.

So we’re not very used to Northern Ireland’s politicians having much say in the government of the UK. The current maths shocked us all. And as a Labour member, I clearly hold no brief for a Conservative confidence and supply deal with the Democratic Unionist Party. But the way the legitimacy, as opposed to the wisdom and policy content, of such a deal has been attacked has often been problematic at best. And at worst it’s ignored Northern Ireland’s right to a say in the UK altogether.

Who are the DUP anyway?

Much commentary on the DUP has been rooted in an ignorance of their nature. DUP politicians are indeed socially conservative in a way those in Great Britain rarely are these days. Greater scrutiny of that conservatism would be thoroughly justified. They show no sign of trying to export those norms to Great Britain — they will probably mainly want more money for Northern Ireland. But it would be a thoroughly good thing if we heard more about the impact of DUP attitudes on women and LGBT people in Northern Ireland. It is striking that Westminster never tried to equalise its abortion laws with Great Britain’s through all the years of direct rule. (We should also note this isn’t just the DUP’s prerogative in Northern Ireland. Our own sister party, the SDLP, is just as opposed.)

There are valid points to make about the history of several DUP politicians. The rhetoric and behaviour of the late Ian Paisley deserved excoriation — though in the end he formed a joint Executive, which we should remember too. It’s fair to say that it did at times display a worrying level of equivocation over loyalist terrorism. Recently, the RHI scandal and Arlene Foster’s stubbornness speak ill of DUP attitudes to good governance.

But conflating the DUP’s periodic failure to keep its nose clean with the role of the IRA mistakes the case. Conflating deeply conservative religiosity with having been inextricably bound up with terrorism won’t get you very far in understanding Northern Ireland. And DUP flirtations with Ulster Resistance were very different from the IRA’s responsibility for nearly half of deaths during the Troubles and its inherent connection with Sinn Féin. I’m not saying there aren’t a great many charges to lay at the DUP’s door over many years. But I am saying it’s a different set of arguments. The DUP is not the PUP.

Confidence, supply and the peace process

It is wholly fair to worry about the impact on the impartiality of the UK Government, perceived or actual, in the Northern Ireland peace process. The key part of the Good Friday Agreement cited here reads as follows:

The two Governments:

… affirm that whatever choice is freely exercised by a majority of the people of Northern Ireland, the power of the sovereign government with jurisdiction there shall be exercised with rigorous impartiality on behalf of all the people in the diversity of their identities and traditions …

It doesn’t constrain government formation in either the United Kingdom or a united Ireland. (Imagine the reaction were a united Ireland banned from giving Sinn Féin a role in government in Dublin and you’ll see why not.)

But it would be wholly unacceptable for the UK Government to be parti pris on either side in the peace process. A full coalition, with collective responsibility across government policy including the Northern Ireland Office, currently would make the UK Government’s position impossible in practice. But that’s not on the cards. A full coalition would serve neither the DUP’s interest nor the Conservatives’. The DUP wouldn’t want that level of responsibility; the Conservatives will have to reach beyond the DUP to make this House of Commons function anyway.

The main issue, from a Tory point of view, is guaranteed support for its Budgets — supply. And with a confidence and supply deal, there is no need for matters relating to the NIO to be included. It is completely fair to be worried about the quality of those assurances and to scrutinise the substance of a confidence and supply deal. Obviously, there would need to be assurances about impartiality, which the Irish Government states it has been given. And as the SDLP’s leader has very sensibly said, “We have to judge it on its merits and see what the deal looks like.”

A confidence and supply deal may well be a bad idea. It may very well be politically unwise. But it’s not constitutionally or politically illegitimate in and of itself, any more than it was when Labour toyed with similar deals in 2010.

The principle of consent

Above all, too many in Great Britain have seemed hostile to the very notion that Northern Ireland’s MPs might affect the balance of power at Westminster. It feels a bit like the concerns in the 1950s that integrating Malta into the UK might allow its MPs to do the same in close elections. But unlike Malta, Northern Ireland already forms part of the UK. Its MPs have every right to a say in its governance, as do MPs from England, Scotland and Wales.

This is a basic principle of fair treatment of the UK’s constituent countries. It also goes to the heart of the principle of consent in the Good Friday Agreement. That Agreement recognises that Northern Ireland’s membership of the UK is based on the will of its people and can only be changed by that same will. Membership of the UK confers certain rights, including a voice in the House of Commons. If you don’t grant the region the right to its say in excepted and reserved matters and its voice in Parliament — and if your view is essentially that it can only have that voice so long as it never decides anything, you’re only granting that right in the narrowest possible way, if at all — you’ve got a pretty shallow understanding of the principle of consent.

It’s natural that, say, Sinn Féin’s leadership would argue Northern Ireland politicians should have no role in helping form a UK Government. They’re an abstentionist party and they seek a united Ireland. And of course they have every right to that position. If Northern Ireland and the Republic ever wish to form a united Ireland, the UK should give effect to it without demur.

But in the meantime, there’s no need for the rest of us to take a very specific view of legitimacy at face value. Northern Ireland’s rights within the UK extend further than simply not expelling it from the body politic. Whatever you think of the DUP, we should all remember that.

This post was originally published on Medium.com on 20 June 2017.