The Brexit deal: avoiding the worst comes first

MPs should choose the dispiriting, but safer, course

Douglas Dowell

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.

Douglas Dowell

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Liberal-minded social democrat seeks readers.

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