Decency

London’s my home. Our ‘leaders’ making capital out of an attack on it, whether to play tough cop or to berate the West, repels me

London Bridge happens to be my hub station. A good friend of mine lives walking distance away. I’ve got a favourite pub there (Mc & Son’s — it’s a properly good Irish pub, it plays good live Irish music, the Thai food’s not bad). There’s a great Indian nearby (the Mango Indian — not cheap, but good). It’s very much on my day-to-day map.

Most of us tend to get a bit more of a shiver running down our spine when something terrible happens near us. But my reaction wasn’t quite the same on Friday as in 2017, when London Bridge was also attacked. Two years ago, I was shocked as well as saddened: I still had it in me to be shocked. This time, I still felt despairing, but deadened — no longer shocked, because now I’ve come to expect such horrors from time to time. I profoundly wish I hadn’t.

That both the two victims were former students at an event marking a programme which gave students and prisoners a chance to study together to help reduce reoffending — and that while one prisoner was the attacker, another tried to stop the attack — feels particularly heartrending. The decency and principles of both Jack Merritt and Saskia Jones come through. And Mr Merritt’s response shows the kind of principle most of us wonder if we could ever manage to display, were that sort of tragedy ever to crash into our lives.

So there’s something particularly repellent in the sight of Boris Johnson, less than 48 hours after the crime, making hay out of the horror for partisan gain. Politicians have no duty to agree with the policy prescriptions of victims, of course. But sometimes the Prime Minister should act as Prime Minister, not just a party leader. The BBC gave way to Johnson’s demand to be interviewed by Andrew Marr this morning without agreeing to be interviewed by Andrew Neil for that very reason. They deemed it, in a quixotic triumph of hope over expectation, ‘in the public interest’. For all her faults, in Theresa May’s case that might have been true. Her successor makes for a sad contrast.

Johnson took a traditional ‘lock ’em up and hang ’em high’ approach. Would a different sentencing framework have produced a different outcome? Would the attacker have persuaded the Parole Board had that been required? What were the merits of the Court of Appeal’s decision to replace a sentence of detention for public protection with an extended sentence? Does the current sentencing framework (under which the attacker was not sentenced) need reform? My instincts are liberal, but I won’t try to answer here: others will do so and it’s not my point. The point is that the Prime Minister has chosen to inflame and divide, to use a national tragedy and families’ heartbreak for partisan advantage. It insults families, disgraces his office and demeans us all.

The Leader of the Opposition’s speech today was somewhat less blatant. For the avoidance of doubt, I don’t presume to know the foreign policy views of those affected on Friday. Nor do I dispute that foreign policy is a legitimate matter for national argument. But terrorist attacks aren’t an excuse to make that argument. Jeremy Corbyn did, in fairness, say ‘The blame lies with the terrorists, their funders and recruiters.’ But his next sentence was ‘But if we are to protect people we must be honest about what threatens our security.’ And as is so often the case, this was a classic example of being able to discard everything before the ‘but’, implying that in some sense the West brings this on itself.

Corbyn made a longstanding argument against Western foreign policy and intervention in almost any circumstances. Is there some causal connection between Western foreign policy and attacks in the UK, or at least a probabilistic connection? Would an already-existing fundamentalist ideology have kept away from our shores, unlike other countries which didn’t take part in most interventions, had we and the US taken a different foreign policy stance? Where does an ideologically anti-interventionist policy leave the people of Syria, Kosovo or Sierra Leone? My instincts are qualifiedly interventionist, but again, that’s not my point. The point is that the Leader of the Opposition used the immediate aftermath of Friday’s horror as a chance to push anti-Western foreign policy.

There was a time when we could have expected the Prime Minister and the Leader of the Opposition to put partisan politics aside for at least a few days when it came to national tragedies. It wasn’t all that long ago. As I’ve said, Johnson is not May. And while Corbyn has form from 2017, Ed Miliband would have known better. This is a recent debasement.

I expect it will continue. But families have lost loved ones and the city I call home and the country I love have suffered a further attack. I don’t expect any better from either ‘leader’, but I should be able to. Mr Johnson, Mr Corbyn: shame on you both. A plague on both your houses.

This post was originally published on Medium.com on 1 December 2019.

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.

Special cases

Northern Ireland is a post-conflict region with a unique border challenge. Don’t use it as a grievance or a rhetorical trick

As discussions about a revised Northern Ireland backstop in all but name intensify, calls for other parts of the UK to get a look-in have unsurprisingly resurfaced. In fairness, this time round it’s come from commentators more than politicians. But the line resurfaces far too often and deserves to be called out properly.

Three parts of the UK voted to remain in the EU: Scotland, London and Northern Ireland. But the EU is not willing to treat Northern Ireland differently because of its referendum vote. It is willing to treat Northern Ireland differently because Ireland, a continuing EU member state, deems it a vital interest. Ireland regards a backstop as crucial to its view of the Belfast/Good Friday Agreement, its full place in the EU and its strategic autonomy vis-à-vis the UK.

Others, notably most Northern Ireland unionists and the current UK Government, dispute Dublin’s view of the 1998 Agreement. The competing merits aren’t my point here. However, it is hard to dispute that a clear majority in Northern Ireland want to avoid a hard border. And opposition to a visible land border, checks and controls is overwhelming among border communities. This border raises challenges rooted in lived experience, logistics and deep-rooted ties which don’t exist anywhere else in the UK.

The economics of different backstops vary. May’s probably would have minimised barriers between Great Britain and Northern Ireland in practice as well as protecting North/South goods trade. It might even have provided an advantageous niche for Northern Ireland with access to EU and UK markets, though claims of a bonanza have been more asserted than evidenced. A Northern Ireland-only backstop — meant to allow Great Britain to go its own way — is much more likely to raise barriers to trade as divergence grows.

There is, however, no serious case for a different Scottish EU relationship within the UK. 60% of Scotland’s external sales went to the rest of the UK in 2017, compared to 18% which went to the EU27. Exports to Ireland weigh in at somewhat under 2%. There is no equivalent to the challenges of Northern Ireland’s trade with Ireland. The economics of Scottish independence are dire — but diverging from the rest of the UK without leaving causes a lot of the economic damage and offers less democratic say in the relevant rules.

The backstop is, furthermore, designed to prevent a visible land border. Treating Scotland (or Wales, or London) differently would create one. The Anglo-Scottish border does at least make some geographical sense — hammered into shape through wars between kingdoms. Unlike the Anglo-Welsh border, it wasn’t finalised when creating 13 counties in an act of administrative incorporation. Unlike the border on the island of Ireland, it didn’t spring from a bitterly-contested hiving-off of six counties. Far fewer people live beside it than the other two.

Nonetheless, creating checks on the Tweed and barriers to most of Scotland’s trade in return for fewer checks in the North Sea and less than a fifth of its trade is the kind of thing you want because of ideology, not practicality. It’s also moot. The EU is obviously not especially enamoured of the UK at present. Its members are, however, considerably less enamoured of giving other separatist movements ideas. Spain (including Catalonia and the Basque Country), Belgium (Flanders) and others have no proactive interest in setting precedents.

Further, Brussels has no reason to make special arrangements outside Northern Ireland. The EU is a membership club, and the interaction between its rules and Ireland’s stated interests, modified a bit to try to get it past the UK, is the source of the backstop. No EU member has a vital national interest in helping tweak EU rules for Scotland, whether via a ‘Scottish backstop’ or the kind of Liechtenstein solution the Scottish Government mooted in 2016.

So ‘If Northern Ireland, then what about Scotland?’ fails on logistics, economics and geopolitics. The same applies elsewhere in Great Britain. I’ve focused on Scotland in this piece, largely because its case is the one most fleshed out since 2016. But that isn’t entirely fair, partly because the other cases are even weaker and partly because ‘If Northern Ireland, then what about us?’ has spread a bit. We’ve seen it as a rhetorical trick from some in London. We saw it when Adam Price said any deal for Bangor, Northern Ireland must apply in Bangor, Wales.

And that, for the most part, is what all this is: a rhetorical trick. It’s using Northern Ireland as leverage in other political battles — Remain vs Leave and Yes vs No. It may well often be thoughtless rather than calculated. Either way, Northern Ireland’s case deserves to be considered on its own merits. The region is not an excuse for Scottish (or Welsh) nationalists to whip up grievance against Westminster. Nor it is a chance for Remainers to claim unfairness to Great Britain.

Northern Ireland is uniquely harmed by leaving the EU. There is a powerful argument for trying to stop Brexit on that specific basis. But too many people died in conflict, and the settlement built to resolve it is too important, for it to be used as a grievance or a tool. Politicians and commentators elsewhere should stop doing it.

This post was originally published on Medium.com on 14 October 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.

Ends and means

Social democrats have every right to reject Corbynite guilt-tripping

Even by its prodigious standards, the hard left is being aggressive to ‘centrists’ this week. For the Twitter-uninitiated, these days ‘centrist’ includes everyone from actual centrists through to socialists on the radical left who oppose the Corbynites on democratic grounds. In particular, the hard left are accusing ‘centrists’ of enabling Boris Johnson and telling us all we have to rally behind Jeremy Corbyn to stop him.

After years of being told to fuck off and join the Tories, I suppose we could see it as refreshing that the Corbynistas want our votes again. But consider what they’re telling decent social democrats to support. They demand anti-racists vote for a leader with a lifetime’s history of anti-Semitic tropes and views, who with his allies reduced Labour to being investigated by the Equality and Human Rights Commission over institutional anti-Semitism. They expect reasonable people to support a leader whose every instinct — even when British people are killed on our own soil at the behest of a foreign power — is to excuse our enemies and decry our allies. They want democrats to set aside the records of extremism and the deep-rooted nastiness of the hard left.

And of course, they want pro-Europeans to support an incoherent mess on Brexit. I wanted Labour to seek a soft Brexit compromise and then, as the options narrowed, I wanted MPs to vote for the deal on the table. Most Remainers rejected meeting the other side halfway long ago. But Labour hasn’t even argued for a coherent compromise. And even now, when it’s calling for a referendum it mumbles. Labour won’t sing Remain or Leave’s tunes or stand up for meeting people halfway. It is of no use to anyone.

In return for moral collapse and strategic ineptitude, we are expected to be grateful for a domestic policy pitch rooted in nostalgia and a benefits policy to the right of the Liberal Democrats. So, out of arguments to persuade moderate social democrats their project isn’t toxic, of course the Corbynites seized on Johnson’s premiership. The hard left delight in being able to tell social democrats the hard right have captured the Tories and so they’ll just have to get in line. Sadly for them, other people have principles too. I regard Corbyn as a dangerous threat as well as Johnson. I want both of them gone, and failing that I want both of them kept in check in Parliament.

But there’s a cold strategic as well as principled logic to withdrawing support from Labour now. In my view, it is now clear the median Labour member won’t reject Corbynite politics because they’re wrong. I recognise the current median Labour member is probably still on the pro-Corbyn bit of the soft left, not the true hard left. I’m sure they wish anti-Semitism weren’t an issue in Labour ranks. I imagine they probably think the hard left sometimes has a point about foreign policy, but I don’t think they actively want to throw the Baltic states to Putin. I don’t think they like the viciousness that comes with Corbynism.

They just don’t see it all as a red line. Not really. Certainly not if it doesn’t lose Labour enough votes or overlap with something they really care about personally. (Which is why Brexit causes Corbyn so much more trouble internally than anti-Jewish racism.) I don’t think they ever will. Worse, I think plenty will minimise or excuse it to suit themselves. And I don’t think they’ll really and truly believe it costs enough votes for them to draw the line unless a general election proves the point.

As a citizen, I therefore have one weapon left: my vote. If Labour wants it, it will have to actually take anti-Semitism on, not deflect headlines and protect the Corbynistas’ friends. It will have to assure me that, in office, a Labour Prime Minister will take our NATO obligations seriously and in good faith. And it will have to convince me that the people it puts into Number 10 are committed parliamentary democrats.

Self-evidently, none of that will happen so long as Corbyn, McDonnell, Milne and Murray run the show. Nonetheless, Labour, that’s my price. I will not be guilt-tripped into lowering it. You can pay it or not as you see fit.

This post was originally published on Medium.com on 28 July 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.

Cashing in on discontent? National gripes, public finances and a fractured Union

Nations are as liable as humans to squabble over money, and the four countries of the United Kingdom are no exception. Arguing over GERS in Scotland is one example; moaning about Barnett in England is another. Part of our problem is that these things are hard to measure. Another is that, as ever with money, all sides have an axe to grind.

So inevitably, our press loves stories implying that one country or another has its hand in the till. The Times ran a particularly good example a couple of weeks ago. The central claim was as follows:

Government efforts to reduce the budget deficit since the financial crisis have been delivered almost exclusively by England, which is on track to balance its books this year, while the devolved administrations continue to borrow heavily, according to official figures.

This is deeply misleading. For a start, devolved administrations mostly don’t control how much revenue is raised in their areas. With major exceptions in Scotland and moderate exceptions in Wales and Northern Ireland (mostly recent), they’re funded by block grant. They have very limited borrowing powers. The Times’ ‘borrowing’ is really the gap between UK and devolved spending and revenue. That gap has been mostly controlled at UK level throughout this period.

Still, it’s true that the gap in England has narrowed much faster (a 92.2% drop) than it has in Scotland (3.1%), Wales (16.6%) and Northern Ireland (9.9%). So have the four countries been getting radically different spending settlements since 2009/10? The figures for total public spending show they haven’t.

Chart derived from Office for National Statistics ‘Country and regional public sector finances’ data.

England has actually had the highest percentage rise in public spending, at 11.2%. Scotland came in at 11.0%, Northern Ireland went up by 10.6% and Wales rose by 9.6%. Leaving aside whether that’s fair for reasons of population growth or relative need — and differing spending among the regions of England — this is not where our ‘England is paying off the deficit’ story comes from.

The story seems very different when we look at government receipts. Here we do see some major differences. England’s revenue growth (36.4%) is somewhat higher than Wales’ (30.5%), quite a bit higher than Northern Ireland’s (26.7.%) and over double Scotland’s (15.2%). What’s going on here? The first clue comes from which regions of England’s receipts are growing fastest.

Chart derived from Office for National Statistics ‘Country and regional public sector finances’ data.

The wider south east of England is, as you’d expect, way out in front. Wales isn’t out of step with most of England; only Scotland seems vastly out of kilter. So the story isn’t one of Westminster largesse flowing to the devolved nations at all. Instead, it’s one of UK growth being greatest in London and the south east, as it usually (and worryingly) is. To paint this as the former rather than the latter is strikingly unhelpful.

Some may wonder why Scotland is so far behind. It isn’t usually the worst performer in the UK by any means, so what’s happening here? But again, the answer is mostly pretty clear. These figures include a geographical share of North Sea revenue — Treasury gains from oil and gas — most of which is allocated to Scotland. And, famously, oil and gas prices have plummeted in recent years. Strip out the oil and Scotland’s growth looks much more normal. That’s especially true when you remember England’s population is growing faster.

Chart derived from Office for National Statistics ‘Country and regional public sector finances’ data.

So The Times’ story of England tightening its belt while the rest of the UK lives high on the hog makes no sense at all. Public spending has gone up by fairly similar amounts in the four countries, southeast England’s economy has grown the most, and Scotland’s tax take was hit hard by a collapse in oil and gas prices. And anyway, the other three countries’ fiscal envelopes were mostly set by Westminster.

Does this matter beyond due concern for fair reporting? I think so. Were I to single out one thing which could unravel the UK, I might well choose competitive grievance. PG Wodehouse’s unkind quote is often echoed for English audiences, in varying levels of poor taste. The SNP’s opponents in Scotland regularly accuse it of hunting for grievances — sometimes fairly, sometimes less so. But if we diagnose a grievance culture in Scotland, we’ll have to diagnose one in England too. It’s often aimed at Scotland, but also at the rest of the UK more generally.

This is a serious problem for the UK. A multinational Union needs give and take and general reasonableness to work well. That’s especially true for a Union made up of one very large nation and three much smaller ones. Constant diatribes about how hard done by England or Scotland (or Wales or Northern Ireland) are do nothing to help and much to hinder that process.

Since 2014, Scotland’s public debate has demanded much of the rest of the UK while paying relatively little attention to its views. England’s public debate, such as it is, always seems to reduce in moderation as it gains in prominence. Wales and Northern Ireland struggle to be heard, and the latter often attracts ill-concealed irritation when it cuts through. It may or may not prove sustainable: it definitely isn’t healthy.

Not all the UK’s gripes focus on cash, but quite enough do to be going on with. We could improve our public discourse by at least giving a fair picture of the sums. As it stands, unionists may well live to regret letting our four countries regard each other as burdens rather than partners.

This post was originally published on Medium.com on 1 October 2018.