What happens next?
I don’t know. No one knows.
But if you are not bored to tears with Brexit, read on. There could be a way out of this mess, but it will require a big, bold move.
First, remember two key facts. The Government has no Parliamentary majority. The United Kingdom will leave the European Union on 29th March next year, unless the law is changed by Parliament.
One potential outcome is that the Prime Minister returns from Brussels this week with a major concession on the Irish backstop. The chances of this are remote. The whole point of a backstop is that one party cannot unilaterally revoke it at a time of its choosing. A backstop is for life, not just for Christmas. The Attorney General wrote in his letter to the Prime Minister that this backstop “would endure indefinitely”. Unless he can advise the Prime Minister – and Parliament – that this is no longer the case; and there is a new legal text under which the UK can unilaterally exit this limbo at a time of its choosing, the existing deal will go down in flames.
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Even if the Prime Minister does return with a concession, the chances are slim that it will be sufficient for Parliament to support the deal. Why would Labour help her out of this hole? Why would David Davis, Boris Johnson and others who want to “chuck Chequers” suddenly endorse a plan that they resigned over?
Therefore, let us imagine – or perhaps fast forward – to the day that the “revised” deal has been defeated.
Some argue that we then leave without a deal – or a series of managed “no deals”. Remember core fact one. Legally this is the case – we are leaving on 29th March. Parliament can huff and puff, but the motions they pass will not be legally binding. But enter core fact two. The Government does not have a Parliamentary majority, and Parliament appears to oppose leaving without a deal. So we would be heading for a constitutional crisis of the first order. Government saying we are leaving without a deal, Parliament saying “no”.
As for the negotiation of mini- deals, to “manage” the no deal scenario: well, yes, maybe the EU will blink. But fingers crossed is not a great strategy.
I may be wrong on this – maybe Parliament will be kowtowed into submission. But I don’t think it will be, and I would rather avoid the chaos.
That means, if you believe that the Government cannot simply ignore Parliament and leave without a deal; do not want to risk a no deal Brexit; do not want a general election to change the Parliamentary arithmetic; want to honour the result of the referendum and leave the European Union on 29th March – and not have a second referendum – then something will have to give if a revised deal is rejected.
And that something must create a negotiating position that commands a clear Parliamentary majority; one that addresses the need for the backstop; and one that clearly answers the question that has haunted the Brexit debate from the start – what matters more, sovereignty or trade?
To achieve this would mean acknowledging that the Prime Minister’s red lines – drawn up before the Cabinet had properly considered what it wanted to achieve, and before we in the Conservative Party had lost our majority in Parliament – these red lines are now preventing a deal, and putting at risk what 17.4 million asked the Government to do: leave the European Union.
The options are pretty clear.
First, the EEA option.
Putting aside the legal disputes about our membership of the EEA once we leave, I need a lot of persuading as to how not having complete control of immigration, how being a rule taker on both goods and services, how being under the EFTA Court, and how continuing to pay in to the budget, is consistent with leaving the EU. Nor would joining the EEA, in itself, solve the Irish border issue. So, yes, it’s an option – and I applaud its proponents who have made a constructive suggestion as to how we get out of this muddle. But it doesn’t tick all the boxes for me.
A second and better option I suggest is to be part of a customs union, and abide by EU regulations for goods and agricultural products. This would address the core issues around the Irish border, and would help keep trade “free and frictionless”.
The irony – and possible strength – of this approach is its basic building blocks are already in the Political Declaration that Theresa May has negotiated.
Complete control of immigration. Proximity on regulation of goods, more control of services. Out of the EU’s political union. The supremacy (but not the entire role) of the ECJ would be over.
So, the suggestion is this: in the event of the revised deal being defeated in Parliament, the Government should pocket the Political Declaration, and say that the UK would be in a customs union, and would abide by EU regulations on goods and agricultural products. The impasse over the Irish border might – might – be resolved. It could be the basis for a Parliamentary consensus.
I know some will argue that this is a betrayal of Brexit; and it means we cannot exploit the vast opportunities that lie in wait of trade deals with non-EU countries.
On the first point, a betrayal of Brexit: really? Look at the polling of Leave voters. YouGov asked Leave voters to say whether trade policy or control over our borders were more important to them in assessing the Brexit negotiation: 55% said immigration, 28 % trade. Among Conservative voters, 49% said immigration, 34% trade.
As to the second point – we won’t be able to strike trade deals with non-EU countries. That’s true. It’s also true we would not have a seat at the table when the EU negotiates trade deals. I could argue that these new trade deals may take years to negotiate; and may come at a price – be it more friction in our trade with the EU, or allowing in US food or Chinese steel. That may be true too.
But all this misses the core point. This is a compromise to achieve the criteria I set out above – and compromises come with a price. This is no different. But it would see financial services outside the EU’s regulatory orbit, while goods would remain in it – keeping those “just in time” supply chains moving.
You may be thinking: “But won’t this break a Conservative manifesto commitment?” Yes, but the more important commitment is to leave the European Union, and it is in the national interest to end the uncertainty by forging a consensus in Parliament.
If you don’t have another option, and the Prime Minister’s Plan A fails, we fall back into the doom loop of “no to this deal, no to no deal, no to a general election, no to a referendum; no to this deal, no to no deal, no to a general election, no to a referendum; no to this deal…”
So that’s my suggestion for Plan B. Maybe Plan A still has life in it, and the Prime Minister will triumph in Brussels, and her deal will pass. If not, two years after being told Brexit means Brexit, we now need to agree amongst ourselves what Brexit actually means.
Lord Bridges of Headley served as Parliamentary Under-Secretary of State at the Department for Exiting the European Union.