A speech given to ERIS on 16thMarch 2019 by Rob Martin
Today I want to give a brief resume of what has occurred in the last few weeks, where we are now and what options face the UK as we fast approach 29th March and the deadline for leaving EU.I will also give a few thoughts on what I think could happen, though experience of recent times suggests anything is possible! After I have spoken my colleagues Tim Brooks and John Merritt are going to look at the current positions taken on Brexit by the Labour Party and the trade unions. I will try not to stray into matters they will discuss but inevitably there is an overlap on some issues, so I may inadvertently steel some of their thunder.
Chaos and high political drama have characterised recent days, with unbelievable scenes and normal politics stood on its head. Party discipline has completely broken down and the Cabinet has been acting and voting in three distinct factions.
On Tuesday we observed May being defeated for the second time on her Withdrawal Agreement, this time by 149 votes. In any other circumstances a Prime Minister and Government losing votes by such historic margins would have resigned, but these are unusual times.
On Wednesday the Tories whipped their MPs to vote against their own motion avoiding a no deal Brexit and lost the vote by 43, with 11 Ministers rebelling, including 4 from the Cabinet. No one was disciplined afterwards.
Then on Thursday, after winning two crucial divisions by just two votes, May needed Labour Party support to win an extension to Article 50 as more than half of her Tory MPs voted against the Government’s motion, including 7 members of the Cabinet. Astonishingly, Stephen Barclay, the latest Brexit Secretary, having wound up the debate for the Government by urging Parliament to vote for an extension, then voted against it himself! Presumably he will be in Brussels next week negotiating for the extension which he opposes! Unless he has resigned by then.
The week before we had the spectacle of Geoffrey Cox, the Attorney General, in Europe negotiating to get the backstop removed from May’s Withdrawal Agreement. I knew things were not going well for the Government when it was reported that Cox was arguing the EU must agree to the backstop going as it was in breach of the European Convention on Human Rights because once it kicked in Northern Ireland would be part of the EU’s customs union but its people would not have elected representatives in Europe or the right to vote in European elections and this would be a breach of their human rights.
This was a bit of a cheek coming from the Attorney General who had agreed the backstop in Cabinet and had left this important legal opinion out of the legal advice he had given the Government on May’s Withdrawal Agreement and which was eventually, after fierce resistance from the Cabinet, shared with MPs. Also, this was the height of hypocrisy given that when it passed the 2018 Act of Withdrawal from the EU, against the opposition of Labour and other parties and after reversing an overwhelming defeat in the House of Lords on this very issue, the Government had chosen only the European Convention on Human Rights as being the sole piece of European law it refused to automatically transpose into UK law when we leave the EU.
It is this arrogant and two faced approach to negotiations that has exasperated the EU and is why their side has lost faith in the UK Government for its total unreliability and untrustworthiness.
So, where are we now?
Parliament has rejected May’s Withdrawal Agreement twice by massive margins, it has rejected a no deal, not just on 29thMarch but at any time, yet cannot agree what it actually wants. Of course, the legal position, irrespective of the vote on Wednesday evening rejecting a no deal Brexit, is that because the date is written into the Withdrawal Act passed last year, unless an agreement is made before that date with the EU or they agree to our request, agreed by Parliament on Thursday, for an extension to Article 50, we crash out of the EU at 11pm on 29thMarch, with no deal.
Parliament has agreed to request an extension to Article 50 but it does not know how long for or for what purpose it is wanted! The motion agreed was to request a delay in leaving either to 30thJune if May’s Withdrawal Agreement is finally accepted, or for longer if it is not. MPs rejected the proposal to delay Article 50 specifically to allow for another referendum to be held and also very narrowly defeated Hilary Benn’s attempt for the House of Commons to temporarily take over the Government’s Brexit timetable so a way forward could be agreed by MPs expressing their preferences on what could be the final outcome. (This proposal was lost by just 2 votes and had it passed then it would have been truly revolutionary for our system of government for the legislature to take over from the executive, especially on such a monumentally important issue about our country’s very future).
So what are the options we now face?
The first is still May’s deal. She intends to have yet another vote on it next Tuesday and, who knows, if that goes against her she could well attempt another vote further down the line! We should not fall into the trap of thinking she has no political sense and has no cunning strategy to get her version of Brexit through. March 29thwas inserted into the Withdrawal Act as a firm deadline deliberately so the clock could be run down, just as she has made sure it has with postponements and delays easily avoided yet foisted upon Parliament and the nation.
After she dropped the ridiculous mantra of “no deal is better than a bad deal” she adopted the line that it was “her deal or no deal”. This was to get Remain supporting MPs on board and worked to some extent but not enough to get the deal through. So now it is “her deal or no Brexit” to frighten the ERG, the DUP and any other assortment of hard Brexiteers, to give in. She may even be successful in this in the end.
We have witnessed in the last few days frantic talks with the DUP, not just over the backstop but with Philip Hammond, Chancellor of the Exchequer, involved too, obviously to offer more cash to Northern Ireland and again buy the DUP’s support with public money.
This is, of course, a cynical and corrupt practice but it is little different to the recent attempt by May to purchase the votes of Labour MPs by offering cash be pumped into Leave voting areas and suggesting employment laws will be protected post Brexit. Thankfully, with the exception of only 3 Labour MPs who have voted for May’s deal, most have seen the dishonesty in these proposals. Not only is the cash allegedly on offer for depressed areas much less than they are already receiving in grants from the EU, it has to bebid for too, so community would be set against community to battle for the money. Also, May’s assurances about protecting workers’ rights extends only to a vague promise that any future improvements agreed in Europe will be discussed in our Parliament, hardly a worthy concession if there is a Tory/DUP majority in the House of Commons.
So talks with the DUP are ongoing and May now has an additional problem caused by Michael Gove when he opened Wednesday’s debate on rejecting a no deal. After making a quite forceful case for avoiding a no deal, (conveniently forgetting his own major role in the Leave Campaign and getting us in this mess in the first place), he launched into what was clearly a leadership bid for May’s job by laying into the Labour Party and the SNP with wildly abandoned gusto. This went down well with many on the Tory benches but he ran away with himself and infuriated the DUP by saying that with a no deal Brexit we could return to direct rule in Northern Ireland by Westminster and talks were taking place with the Irish Government about the future relationship with the North. Since his speech DUP MPs have been incandescent about it and May has now to overcome their fury if she is to win them over for her deal.
The Attorney General is coming to her aid by trying to amend his legal advice on the backstop to placate the DUP. He is now suggesting Article 62 of the Vienna Convention on International Treaties can be used to trigger a unilateral withdrawal from a treaty and therefore if the UK Government so decides in the future that the backstop is harmful to the interests of the Northern Ireland people we can indeed withdraw from the backstop without EU agreement, contrary to his previous advice. This opinion has divided lawyers and is considered “the nuclear option” by Dominic Grieve, the former Tory Attorney General. Most lawyers, including those in the ERG/DUP group considering the legal implications of the backstop, think this argument is extremely thin. The International Court, which would decide on the matter, has previously ruled the measure can only be used when there is “unforeseen change” that is “fundamental”. As this is all being argued about now experts and non-experts (like me) think it can hardly be said to be “unforeseen” and it is almost certainly not “fundamental” either. When Hungary tried to withdraw unilaterally from a treaty with Czechoslovakia decades ago the International Court declared the reason given, the fall and disintegration of the Soviet Union, was not “fundamental”, so it is hard to see that problems caused in Northern Ireland following the introduction of the agreed backstop would fit the bill in two or three years time.
This may all prove to be academic anyway as there is no certainty that May will be able to put her agreement, as it now stands, to yet another vote. John Bercow, The Speaker, may well come to our assistance and rule it out of order because Parliamentary precedence is such that an issue already disposed of by a vote of the House of Commons cannot be reconsidered in the same session of Parliament. Chris Bryant, Labour MP, has raised this point and decided not to press it with Bercow last week when The Speaker said he would rule on it “at the appropriate time”. The Government cannot argue that Bercow has already broken the precedent by allowing a second vote on May’s deal last week because they themselves argued the deal had been changed by May’s last minute negotiations with the EU and the addition of three extra assurances on the backstop. No doubt if The Speaker rules it out of order he will make himself even less popular with the Government than he already is!
But what if, as we hope, May’s deal fails?
Then she will ask the EU for a longer extension to Article 50, more Ministers, including the Brexit Secretary may well resign, and the Government has indicated a willingness, at that time only, to consider indicative votes on the way forward, (in essence what Hilary Benn was trying to force them to do on Wednesday).
At that stage there are likely options that will be considered, which I will now quickly run through.
One possibility is “Norway+” or “Single Market 2”. This is effectively membership of the European Economic Area, a small group of countries bound into an agreement with the EU that makes them part of the single market, (with the free movement of people), and the customs union, (limiting our ability to strike independent trade deals). The Common Agricultural and Fisheries Policies do not apply, nor does the EEA fall within the jurisdiction of the European Court of Justice, though the court it is accountable to does sometimes take decisions of that other court into account. It is supported by a considerable cross party group in Parliament, notably by Stephen Kinnock from Labour and Robert Halfonand Nick Boles from the Tories. However, it is strongly opposed by many because they see it as similar to May’s deal in that the UK would be obeying many EU rules and laws without being able to have a say in making them.
Another option is for the UK to form a customs union with the EU outside of the single market. This is currently Labour’s favoured option and therefore I will not say much on it now as Tim will be dealing with it when he speaks after me. However, I will point out that like “Norway+” it restricts the UK’s ability to agree trade deals with other countries and as it has been Jeremy Corbyn’s preferred means of delivering a “jobs first Brexit” and has been consistently derided and opposed by the Government and the Tory Party I cannot see it eventually winning their support.
Then we come to the so-called “Malthouse Compromise”, named after the Tory MP who devised it. This is a none too clever ruse of “no deal by another name“, and it was rejected on Wednesday by an overwhelming majority, though it did have the support of a third of the Cabinet! It tears up May’s deal but agrees to pay the EU our budget contribution for two years during which there is a pseudo transition period when we are out of the EU with no deal but buy time to negotiate a revised Irish backstop and sort out our trading relations based on World Trade Organisation terms. It has little real support in the House of Commons as last week’s vote showed, so is probably dead. Thankfully.
Of course, irrespective of the vote on Wednesday, there is still a chance that we will have a second referendum. Although a referendum linked to deferring Article 50 was decisively defeated then the timing of the vote was inopportune and was opposed by the People’s Vote Campaign itself. Their view is that a referendum should be considered by MPs after they have failed to agree on all the other options, something that could well happen. They think this will maximise the number of MPs supporting another public vote, as it will be a way out of the Parliamentary impasse. This is the reason Keir Starmer gave for Labour abstaining on Wednesday’s vote and I think that decision was correct. However, the result showed 17 Labour MPs voted against another referendum, a figure lower than speculated previously.
If we do have another referendum what is crucial is what options are given to people: a straight choice again between Leave or Remain; a choice between a no deal and Remain; a multiplicity of options, including Remain, “Norway+” or no deal; or the so-called Kyle/Wilson compromise of May’s deal versus Remain. This is named after the two Labour MPs who are pushing it. Theyproposethat Labour allows May’s deal to go through Parliament as part of an Act that stipulates it is then put to a referendum with Remain as the other choice on the ballot paper. It is evidently finding favour with John McDonnell and others at the top of the Labour Party, maybe even enough for the Party to whip its MPs to support it. Jeremy Corbyn is rumoured to be wary of it however. There is speculation it may be voted on in the House of Commons as early as next week and that May could even consider it if she sees no prospect of her deal getting through any other way. I think it is a dangerous strategy but we will see.
Of course, as I said earlier, if nothing changes, then we leave the EU on 29thMarch with no deal and that is perfectly possible and more likely the closer we get to the date with no decisions taken. To avoid it we need either a deal or an extension to Article 50, which must be agreed not just by the EU itself through the Commission but by all other 27 nation states. If you are not aware already Nigel Farage and Aaron Banks are frantically lobbying the right wing governments of Poland, Hungary and Italy to veto the extension so we crash out on 29th.So much for their pleas for the UK to win back its sovereignty and for our Parliament to take its own decisions independent of Europe!
If the EU does reject our application for an extension to Article 50, then to avoid a no deal exit on WTO terms with all the chaos that will bring the UK could revoke Article 50 entirely. Although Michael Gove denied it in Parliament last week, the UK Government can unilaterally revoke Article 50 at any time prior to 11pm on 29thMarch and then trigger it again ata later date. The European Court of Justice has made this abundantly clear, (against the wishes of our Government), saying to do so would be the UK Government correctly exercising its sovereignty. This course of action, if made necessary, would then giveParliament and whoever was in power following May’s inevitable departure soon, the time to decide what future relationship the UK wants with the EU.
One major problem that does exist with our request to postpone leaving is that the EU is firm that if we delay Article 50 until after 30thJune then EU law means the UK must participate in the EU elections to be held during the last week of May. If we do not hold the elections and remain in the EU after June then all the elections across Europe are illegitimate, so too is the newly elected European Parliament and the EU will not be able to function legally.
Our Government was obviously aware of this last week when May suggested 30thJune for the deadline of the extension. Indeed, the Electoral Commission has been advising Returning Officers for some time they must prepare for the elections. However, Ministers are denying this advice has anything to do with them and are no doubt fearful of the elections taking place, not just because of the inevitable backlash from Brexiteers, but because they are scared stiff at what might happen to Tory candidates at the ballot box.
My view is we should warmly welcome these elections if they do take place, not only as an opportunity to pass a verdict on this awful Government, on their total mishandling of the European question and on their overall record, but to make a positive case for the European ideal and the benefits of EU membership. My worry about another referendum, which I support wholeheartedly as long as Remain is on the ballot paper, is that since the last one Remainers have not set out their vision for Europe but have simply pointed out the dangers of leaving and the lies in the Brexiteers’ promises. Negative campaigning failed last time and it will do so again. The sooner we promote a reformed Europe instead of just condemning Brexit, the sooner we will win over the electorate.
Donald Tusk, President of the European Council, is obviously encouraging European leaders to agree an extension of Article 50 long enough for the UK to decide what it wants to do. Guy Verhofstadt, on behalf of the European Parliament, is being more bullish on the timescale and is seeking commitments as to the UK’s intentions. However, overall it seems likely that the EU will grant the extension at its forthcoming summit on 21stMarch and then the ball will be firmly back in our court.
We can remove 29thMarch as the date of leaving by passing a Statutory Instrument that will get through both Houses of Parliament without delay if the will is there. Both the Lords and the Commons have voted recently to indicate that is what they desire. So the future will really be in our own hands then. All the options I have outlined for Brexit are more costly than the status quo. Latest estimates are that they will reduce GDP by between 2% and 10%, whichever is taken up, and would have dreadful economic consequences not just for the UK but for Europe and the whole world.
We already enjoy the best deal there is by being in the EU, so let us Remain!