Leavers' vote

The UK government has managed to negotiate a deal with the EU that is so bad, it is equally awful to both the winners and losers in 2016. Some achievement.

The deal does look rather close to what the Labour party was asking for until recently. As far as I can understand, Labour's agreed Brexit position is that they still don't actually have one, but they do agree that they want a general election. If they win, they can go from being an opposition with no agreed position on Brexit, to being a government with no agreed position on Brexit.

Perhaps electing a life-long eurosceptic to lead the UK's main pro-EU party, one year ahead of a referendum on EU membership, was a mistake.

Defeat in Parliament, which we're told is inevitable, might provide the opportunity to amend the Northern Irish backstop, if the EU can be convinced that conceding small but crucial changes could prevent no deal – or prevent the EU being lumbered with a truculent and volatile UK for the foreseeable future, an outcome just as bad again for both parties.

Leavers who resisted it at the time should probably have the good grace to thank those Remainers who insisted on a meaningful vote in Parliament. And with the same breath, they should curse the unforgivable stupidity of those same Remainers who insisted we should make no preparations to leave without a deal. As was loudly pointed out at the time, if no deal isn't an option, there'll be no choice but to accept any old deal on offer – which is where we are.

A Leavers' Vote

The most desirable outcome is amendment of the Withdrawal Agreement (as argued here). If the EU won't agree to reasonable amendments to the backstop protocol, or if Parliament won't approve such an amended deal, then there will finally be grounds for a People's Vote – or, to ditch that dismally transparent euphemism, a 'second referendum'.

Leavers should abandon the notion that a second referendum is necessarily a gateway to remaining. Some of their opponents seem to believe that, with unwarranted certainty, and they are probably wrong. A Leavers' Vote is well winnable.

Remain face a stiffer challenge than the one they flunked in 2016, and there's been little sign of any meaningful reflection over why they lost then, and what they should do differently second time around. Leave would, once again, have a big and hard-to-beat message, which they would run again and again – that abandoning our previous decision to leave, and remaining, would be a forced move. We would be staying because the EU had decided, as a matter of policy, to offer intolerable terms of exit, and because the UK government (specifically the Treasury) had deliberately blocked the alternative escape route of leaving without an Article 50 deal. Choosing to remain would mean that our constitutional settlement (which EU membership impacts greatly) and our trading arrangements would be determined, essentially, by duress. That would be an unhappy, unsustainable, and unconscionable state of affairs. No amount of questionable economic forecasting, or indignation at red buses, would turn that into a rational decision.

Grounds for a Leavers' Vote

The grounds for a second referendum are fairly simple. The government can have no grounds for believing, or gambling, that any one of the three available options complies with the mandate issued by the 2016 referendum. To choose any of them would therefore require fresh consent from voters, and to proceed without it would risk overturning a democratic decision made on a large turnout – which is to say, would risk enormous dysfunction. 

We have happily moved beyond the argument that the 2016 referendum result can be disregarded as 'merely advisory' – an argument that was only heard from the losing side after the vote, and not before it when they stood a chance of winning (in which event the result would have been, presumably, binding as all hell).

Those grounds:

1. Remain: This is, at the moment, the only option that has been clearly ruled out by voters.
   
   
2. The deal: What May and Robbins have negotiated falls pitifully short of delivering on control over laws and money. May could take a risk, and gamble that her deal is close enough to what voters demanded that it would satisfy the mandate – but unless she's privy to some fancy insider information, that's not a sensible gamble. The cost of gambling and losing could be a schism between Parliament and the majority of voters.
   
   
3. No deal: It seems likely that few people voted Leave in 2016 in the contemplation that there would be no deal at all. Even if this is not true, a referendum would be the only practical way to leave without a deal viable – Parliament will not countenance leaving with no deal, but could be compelled politically to take that option if a referendum result mandated it.

All three options are new courses of action that, to be taken, would require a new decision from voters. If they are the only options available, a new referendum must follow, provided of course that an extension to Article 50 could be agreed by all EU member states. The EU has said that they would be prepared to extend the Article 50 period in order to allow for an election or referendum, so it is not an impossibility.

Option 1: Remain vs. Leave redux

If there is consistent and credible evidence of a change of popular opinion against Brexit, such that asking voters to choose again between leaving and remaining would not be otiose and waste of time when there is none to spare, then the 2016 question should be put to voters again, but only if the following conditions were met: 

1. Remain can only be on the ballot if it is known a) that A50 can be revoked and b) what conditions if any the EU would impose on the UK following revocation, especially regarding the UK's exemptions; and
   
   
2. It is clearly understood that, in the event of a leave vote, it would be left to Parliament to decide whether to leave with May's deal or with no deal; if the present situation recurred and Parliament rejected both May's deal and no deal, then a further referendum would follow so voters could make the decision whether to leave with the/no deal.

There are all sorts of questions about procedure – would any A50 extension leave enough time for two referendums? Could Parliament and the Electoral Commission pre-prepare for the potential second referendum in scenario 2 at the same time as preparing for the first, or would the legislation and Commission approval have to wait until the outcome of the first remain/leave vote – and if so, would the A50 extension period leave enough time for this.

Option 2: Remain off the ballot

If, on the other hand, there is no consistent and credible evidence that a leave/remain ballot would deliver a different decision to the one voters made in 2016, then voters should be asked simply if they wish to leave with May's deal or no deal. 

There would be difficulties. It is possible some EU member states would not be prepared to extend A50 for the sake of a referendum that did not, or might not, allow for the possibility of remaining. Similarly, the benefit of an extension for the UK would be that it would allow time for the preparations for no deal that are necessary to make it a halfway-viable option – however it is likely that some member states (or one predictable member state at least) would be unwilling to allow the UK that benefit, as the EU would then sacrifice the enormous leverage it has as a result of the UK's lack of preparation for no deal.

The 'People's Vote'

If the UK left with May's deal, then there should be an understanding that Parliament could vote at a later date on whether to hold the 'People's Vote' that some Remainers have been demanding – that is, a further vote held when voters are in possession of the facts about future trade with the EU, which wasn't the case in 2016 and wouldn't be the case in the scenarios above. In accordance with that stated purpose of the People’s Vote (emphasis on stated), such a vote would have to be held when we know the facts – i.e. after trade negotiations between the UK and EU have concluded, and the legally binding terms of the deal are on paper. 

By that point, of course, we will have left the EU. The People's Vote would therefore have to be a choice between accepting the trade deal negotiated between the parties, or rejoining the EU as a new member state, as provided by Article 50. EU membership would be an option, but remaining would not.

It was always the case, since the Lisbon Treaty was agreed, that voting 'with all the facts' could only be done after we had left. Under the terms of Article 50, the trade deal can only be negotiated once the member state leaves and becomes a third country, which makes perfect sense. The EU couldn't conclude a new trade treaty with one of its own members – that's what the founding EU treaties are for. Until conclusion of the new treaty, A50 allows only for a non-binding political declaration of what the parties plan to agree in the future.

So the proposition of People's Voters that we could have a second referendum where Remain is on the ballot and where we know the terms of the future deal was always a non-starter (see here for my thoughts on why the arguments for PV were always broken-backed). But Remainers will of course be free to agitate for a vote to rejoin.

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A future referendum or two might finally, after much misguided agitation for one, be justified. It might even get us out of this mess. But it would also be divisive – and maybe, depending on the EU’s position, impossible.

The viability of another referendum is not, however, a reason why we should have one. Now that a further referendum is justified and viable, its usefulness is as a threatened outcome – if the government does not do everything it can to amend the Northern Ireland protocol, to make it consistent with the 2016 vote (and with the national interest), then it must face up to the inevitable consequence of another popular vote, and all of its difficulties.

There is, in legal theory at least, the possibility of using the ‘referendum lock’ of the European Union Act 2011 to force the government to hold and win a referendum as a condition of increasing the power of an EU competence. The legal arguments about whether the Act can be used in the Brexit context, having been drafted with treaty amendment in mind rather than exit from the treaties altogether, are fairly diverting, and it is interesting that both Leavers and Remainers have flirted with using the Act to force the government’s hand. However, the Act cannot serve to impose pressure on the government, as the power to repeal the Act is also in the government’s hands, by virtue of the European Union (Withdrawal) Act 2018.

Heading for no deal

The proposed deal could be just about acceptable, if certain crucial amendments were made. In its current form, it is not acceptable. 

The deal is unacceptable because it imposes onerous and unequal terms on the UK, in the form of the backstop, while the pledges contained in it to avoid the backstop coming into force, or to end it if it has already come into force, are rendered potentially meaningless by lack of detail and clarity as to how that might happen, and how the parties could enforce the pledges agreed to.

Amend the backstop text

The text of the Northern Ireland protocol makes positive noises about avoiding a backstop. The EU and UK ‘shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part’ – the boilerplate ‘best endeavours’ has been held up by the government as a negotiating triumph, incidentally. 

Article 2 of the Protocol makes provision for a subsequent agreement that will supersede the backstop agreement.

There is also, at article 20, a review mechanism that would allow both parties to assess whether (presumably following either a trade deal, or the introduction of sufficiently unobstrusive border surveillance technology) the backstop could be ditched:

If at any time after the end of the transition period the Union or the United Kingdom considers that this Protocol is, in whole or in part, no longer necessary to achieve the objectives set out in Article 1(3) and should cease to apply, in whole or in part, it may notify the other party, setting out its reasons. 

The Article 1(3) objectives are broadly worded:

• to address the unique circumstances on the island of Ireland
• to maintain the necessary conditions for continued North-South cooperation
• to avoid a hard border 
• to protect the 1998 Agreement in all its dimensions.

After the giving of notice, the Joint Committee of UK ministers and their EU counterparts will meet to discuss it. The exit from the backstop would work as follows:

If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement [duty of full mutual respect and good faith], the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.

As nice as all of this would be nice if it came to pass, the process is laced with ambiguity.

There are no specific tests for what adequate protection of the Good Friday Agreement should look like. When would a border be too hard for the purposes of article 1(3)?

Because no criteria for satisfying the ‘unique circumstances on the island of Ireland’ are specified, the parties in turn are not obliged to acknowledge such sufficient steps as might be made. Say the text had instead specified, for instance, a degree of border facilitation that both parties agreed would obviate the need for a hard border. Had that been the case, then if the UK were one day to propose a demonstrably and suitably viable facilitation scheme, the EU would be bound to accept it as a ground for disapplying that part of the Protocol. It would be held to its commitment.

What we have instead is a wide scope for one of the parties to dismiss resolutions proposed by the other party, even if those steps might objectively lead to the outcome. The wording leaves plenty of room to reject any argument that the standard set by art. 1(3) has been met – ‘border would still be too hard’, ‘the GFA protection proposed isn’t adequate protection’ etc.

The commitment to negotiate with ‘full mutual respect and good faith’ would be a weak obstacle to any unreasonable attempt to defeat the exit provision. Bad faith is hard to prove, however blatant it may feel, and given that exit from the backstop will require consensus, it would be a nuclear button – good luck getting agreement after accusing your negotiator of acting in bad faith. Criteria of adequacy would be a much more effective safeguard to enforce reasonable behaviour among the parties – no one gets hurt by the accusation they have misconstrued the definition of when border facilitation is adequate.

This is anyway all rather academic. As weak a protection as article 5 is, there are no signs that such protection as it offers could be enforced. There is no clear enforcement mechanism for the backstop.

We know that under article 8 of the Protocol, the UK may not seek arbitration on matters of mutual recognition as they apply, under the backstop, to Northern Ireland.

We know too that article 15 rules that the Protocol, inasmuch as it touches upon EU law, is to be interpreted in strict conformity with EU case law – stricter conformity, that is, than will be imposed on UK judges interpreting the Withdrawal Agreement after the end of the transition.

But in the event that EU negotiators acted in outright bad faith, in breach of the agreement, then we don’t know precisely how the UK could force the EU to stick to what it agreed. Inasmuch as we can guess how it would be fudged, the outcome would be likely to be disproportionately bad for the UK. Enforcement would be delivered either through the provisions of the Withdrawal Agreement proper – that is, under the indirect jurisdiction of the CJEU – or under the direct CJEU jurisdiction provided by the Protocol. 

In other words, the EU’s own court will be likely to decide the matter – a miserable travesty of basic fairness. Nor, note, is this a Brexiteer fetish – both the Law Society and the House of Lords EU Committee advocated strictly neutral arbitration of the Withdrawal Agreement.

The EU’s court will to decide, too, whether in its judgment the UK has merited self-government, or whether it should remain an EU satellite.

The danger here is real, not abstract, not legalistic. It is reasonable to assume – in fact it is almost certain – that despite the joint commitments made to avoid it, the persistence of the backstop will disproportionately favour the EU’s interests. As long as the UK is under it, it will not be able to compete with the EU by adopting a more competitive regulatory regime. Moreover, the spectacle of the UK tethered, humiliated and voiceless will be a useful demonstration to other restive member states of the consequences of trying to leave – rather like the captive foe paraded in the Roman triumph, that reminder of the folly of trying to resist Rome.

The UK will have every reason to escape the backstop, so that it can once again be free to make decisions and regulate its trade according to its own interests. The EU will have good reason to keep it in place for long as it can. 

The UK government must revise the text of the agreement to ensure there will be a fair, clear and objective procedure for balancing, and if necessary ignoring, the competing interests of the EU and UK in this matter, so that the necessity or otherwise of the backstop can be judged according to its proper agreed purpose.

There is, admittedly, an argument from practicality which says that, even if the Protocol could be gamed by the EU, fears about being trapped in the backstop are overblown. It would be such an anomalous, bizarre situation, for an economy the size of the UK to be an EU satellite, that it would prove unsustainable. Even the French – the EU’s Brexit hardliners – are said to have conceded as much.

But that is cold comfort. It would mean the UK would only become a sovereign state, free to determine and legislate for its own interests, when the leading member states decided that we had ‘had enough’, or when the whole thing had become a bit embarrassing. We cannot gamble our future as a self-governing nation, able to act in its own interests, on what Emmanuel Macron thinks reasonable and practicable. It would be simply absurd and demeaning for any nation, whatever its economy, to have its fate determined in that way.

Even if it risks no deal, and even if it takes a change of Prime Minister, the UK must re-negotiate this part of the Protocol and insist on objective tests for removing the backstop, and an independent tribunal to adjudicate on whether those tests have been satisfied. 

Guy Verhofstadt may assert that the text may be amended no more, but this might not be true. It has probably already been butchered by the negotiating process – presumably at some point there were provisions for enforcement in the Protocol, which the EU would only have agreed on the basis (legally unavoidable, they would say) that the CJEU be ultimate arbiter of any aspect touching upon EU law. They may have been subsequently removed when the UK balked, thus leaving the current bleeding chunks. Unilateral exit was never on the cards, even if it was worth a shot.

Indeed the wording of article 20 hardly looks final:

If, following the consideration referred to above, and acting in full respect of Article 5 of the Withdrawal Agreement, the Union and the United Kingdom decide jointly within the Joint Committee that the Protocol, in whole or in part, is no longer necessary to achieve its objectives, the Protocol shall cease to apply, in whole or in part. In such a case the Joint Committee shall address recommendations to the Union and to the United Kingdom on the necessary measures, taking into account the obligations of the parties to the 1998 Agreement.

That seems to say that the backstop will end when the ministerial Joint Committee decides it can. If so, what will be the purpose of the further ‘recommendations on necessary measures’? Will the backstop actually only cease when those measures are taken? Or will the necessary measures merely be the steps needed to implement the decision taken by the Joint Committee?

Suffice to say, there are good reasons to argue that this text needs further work, in various ways. It cannot be agreed without it.

Ditch the backstop?

Say the UK government convinced the EU to amend the agreement text – would that be enough to make the deal desirable?

No, but might it be tolerable, just about, under duress?

Amending the text won’t remove the fundamental problem with the backstop – that it is virtually guaranteed to deliver a worse trade deal than we would otherwise get. If the EU offered even a very bad deal, which was only minimally better than the backstop, the UK would have no option but to accept it – the alternative would be worse, and we would be bound in international law to accept it if we turned down the initial offer. The UK will have no leverage to push for a deal in its interests. The EU could simply sit mute at the negotiating table, confident that come 1 January 2021 the backstop will be triggered, and the UK will be kept safely in the EU’s regulatory orbit with no say over the rules.

That will always be the case as long as the UK is forced to agree to the liability under a deal – specifically indemnifying Ireland, at great cost, against any harm caused by Brexit – before it receives any commitment as to the benefits. The risk of the backstop could be worth bearing, if the risk could be balanced against the benefits. If the EU mooted a lucrative trade deal, then the UK should reasonably moot putting its money where its mouth is. And if the EU promised, then the UK should also promise.

The sequencing imposed by the EU means that the EU moots a trade deal, in the political declaration, and in return the UK must promise to put its money where its mouth is.

No government should choose to expose to such risk the interests of the country it represents. It’s a quaint idea, perhaps, but I like to think a government would do no less to protect its nation’s interests than a lawyer for his or her client.

The question is – does the UK still have an effective choice, if the alternative is now no deal? 

There certainly was a choice, at one point. The EU’s claim that the backstop was designed to preserve the Northern Irish was either misinformed, or a false pretext, and should have been challenged – no thoughtful, or genuine stance on the Northern Irish settlement could have led the EU to avert discord by preserving one border important to Nationalists, while hardening another important to Unionists. Article 7 of the Protocol shows that the agreement has indeed managed to pay Paul merely by robbing Peter.

One motivation EU leaders alluded to – to champion the Irish dog in the Ulster fight, out of EU solidarity – was also grossly inconsistent with the Good Friday spirit of cooperation.

In less adversarial terms, it was also clear that the seminal form of the backstop, in the December report, was broken-backed and didn’t reconcile the differing aims of the two parties. Both could point to the paragraphs on the Irish border and claim different things. Rather than try vainly to hold the other side to an agreement that either didn’t exist between them, or hadn’t been properly formulated, it would have been much better to accept that they hadn’t managed to nail down an agreement on the first go, and return for a second go.

It is too late now to ask the EU to indulge misgivings that should have been voiced almost a year ago. The only way to reopen the whole issue of the backstop would be to force it open – say if a new Prime Minister took over, extended the negotiating period (no mean feat), and offered the €39bn on condition that the EU agreed to shift the Irish border to the trade negotiations, where it always belonged. It would mean paying a huge amount of money simply to get our negotiating party to do what anyway was merely reasonable and to be expected. Such, however, is the difficulty of negotiating with a hegemon whose actions are justified not by what is reasonable, but by the extent of its power.

In truth, this looks very unlikely. It seems the UK, if it accepts the deal at all, will have to accept it with the backstop, accept the consequences of its failed approach to negotiations, and see what chances the future will hold.

Who’s to blame for this?

Literally all concerned. 

The terms of Article 50 restricting negotiations to two years certainly put excessive pressure on decisions that needed to be made carefully. It’s hard to blame the drafters for that, and still less likely that they contrived it to pressurise any member daring to leave, given that it was drafted either in the expectation that it wouldn’t be used but would be a symbol of the enduring sovereignty of member states, or in the expectation it could be used as a poison pill for undesirable members. Whatever the intention of the drafters, it is clearly true that the EU used the Article 50 time limit as a very effective tool.

The time pressure would not have been felt so keenly by the UK if it had delayed triggering Article 50 in order to work out what it actually wanted from negotiations and how it would approach them. The longueurs after giving notice, when the cabinet seemed to have a settled direction on nothing, were shameful. 

Advice that is wise after the fact, questioning why the UK did not do more fact finding before rejiggering Article 50, for instance through a Royal Commission, tends to be conveniently forgetful of the pressure that was on May at the time. Not least was the unwelcome and unexpected pressure created by the insistence of some Remainers that they would keep campaigning against a referendum result that, for them, had decided nothing. Maybe my own memory is faulty also, but this seemed to drastically increase the sense that Brexit urgently had to be enacted lest it be strangled at birth.

This also highlights the main culpability of Remainers, or at least a significant number of them. The refusal to accept the result (from the start – Gina Miller admitted she called her lawyers on the morning of 24 June 2016) was senseless, and the prime (though not the only) cause of the divisions that followed. Fixation on the weak legal status of the referendum decision blinded them to their blunder – what made the referendum legitimate was the understanding that the result would resolve the argument for the nation as a whole. The shared assumption that, whatever the argument and division leading up to the vote, we would collectively follow where the result led. Rejecting that shared, underpinning assumption pulled the rug from under everyone’s feet. The keystone was the certainty that the result would decide the matter – something Remainers were anxiously certain of in the run up to the vote, or else what were they so worried about? They removed that keystone, and cannot blame others because everything fell apart subsequently.

Leavers on the whole won the argument about the big political ideas, but left it far too late to grasp the policy details (hence the backstop disaster). Remainers grasped the details, but still don’t seem to understand the politics.

It is also fair to say that Leavers were wrong to predict that the EU would prioritise its trade interests and be quick to make a deal with the UK. Remainers rightly point out the hypocrisy of Leavers lambasting the EU for its rigidity and ideology, and then staking the nation’s future on the EU’s pragmatism.

There are two saving graces, however. First, Leavers cannot be damned for failing to predict an EU response to Brexit that was not just rigid and unpragmatic, but also self-harming. The willingness of the EU to acknowledge its fear of the weakness of its union, and the fickleness of its members, has been extraordinary. The aversion to a successful Brexit betrays, quite openly, a misgiving at the heart of the EU that membership might not be the best choice for members, and that alternatives to the union might better realise their ambitions and protect their interests. The clumsy and reckless use of the term ‘cherry-picking’ – which EU leaders seem to think is rather clever – only reveals that some of the central institutions and policies keeping the union together are undesirable mere gristle, which members tolerate in return for the cherry of free trade. Reducing EU membership to this transactional basis is suicidal folly – what basis for the union remains once members realise that the world outside the EU (and it does exist) can offer transactions with better cherry to gristle ratios?

The EU’s response to Brexiteers’ appeal to look to its economic interests was unpredictable – it disclosed the unbridgeable gulf at the heart of the project, between the internal perspective of the cadre pushing for ever closer union in itself, and the external perspective of the members, for whom the EU is, fundamentally, a cost-benefit transaction and possibly not a very good one.

As with the suicide bomber, how can you grapple with a foe who doesn’t care about his own life or safety?

The second saving grace is that Remainers may indeed justifiably lambast Leavers for a naively optimistic view of the pragmatism and flexibility of the EU. It has proved a doctrinaire, hegemonic and inflexible institution. However the Remain argument must continue ‘… and we should continue to give this institution supreme power over our lawmaking and make it the guardian of our prosperity.’ Good luck to anyone chancing their arm with that argument.

Finally, the past two years has shown the poverty of the EU’s technocratic approach. The bankrupt ideology of the ‘landing zone’ – a term much beloved of trade wonks – saw the EU use the negotiating process to gradually close down all of the UK’s escape routes, until there was only one landing strip remaining, and that was precisely the spot where the EU wanted us.

Once the technical work of marking out the landing zone had been done, the business of landing the deal politically was merely adventitious. The space within the political argument would take place had been marked out by the technocrats.

The problem with narrow landing zones is that they tend to make landing a dangerous business. Especially when there are cross-winds – and the political cross-winds in Brexit are fearsome. Whatever difficulties follow from here, including no deal, will be in large part due to the EU’s fetish for expanding the technocratic sphere of influence to the exclusion of political considerations. As the politics of the matter is only temporarily sidelined, not fully suppressed, a backlash is at some point inevitable.

The prevalence of this bankrupt philosophy in the EU project, and the dread of the backlash it will one day unleash, are ample reminders of the wisdom of withdrawing from this experiment.