Now is the moment for Brexiteers in Parliament to stay true and be brave

John Bercow certainly knows how to hog the limelight. The man who drones on and on, lecturing MPs about brevity, was at his grandstanding best in the House of Commons on Monday. But for once, I agree with him. It is wrong for the Government to keep asking MPs the same question in the hope […]

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John Bercow certainly knows how to hog the limelight. The man who drones on and on, lecturing MPs about brevity, was at his grandstanding best in the House of Commons on Monday. But for once, I agree with him. It is wrong for the Government to keep asking MPs the same question in the hope that enough of them will cave in under pressure. Just because the EU deploys the same tactic to deal with recalcitrant voters who have the audacity to vote “the wrong way”, it doesn’t mean that the Prime Minister should be allowed to get away with it.

Thankfully, Bercow’s intervention has spared us all another meaningful vote this week, and although I am sure it was not the Speaker’s intention to help Brexiteers in Parliament in any way, it might just work in our favour.

I have to say that I am disappointed with some of my fellow Brexiteers – many of them personal friends – who have decided to back Theresa May’s deal at this stage in the negotiations. They have their reasons, and I don’t doubt their commitment to the cause. No-one can say that Philip Davies is anything but a committed Brexiteer, and if anyone starts questioning that commitment, I will defend him. No, the reason why I am disappointed is because I feel that their tactics are wrong.

Theresa May has written her letter and is today going cap in hand to Brussels asking for an extension to Article 50 at the European Council meeting. Britain is in crisis, so she says – said as if she is an innocent bystander, not a protagonist of a deal that has been overwhelmingly rejected by MPs and is deeply unpopular with the majority of UK voters.

If she has any sense, she will say that the Speaker of the House of Commons has tied her hands; that she doesn’t stand a chance of getting the current deal through Parliament because he won’t allow her to. “If you want us to leave more or less on time (after a short technical extension), you had better give me something meaningful, otherwise there won’t be another meaningful vote”, she should say. She could use it as negotiating leverage.

The EU doesn’t want a no-deal Brexit which – despite how MPs voted last week – is still the legal default position in just eight days’ time. It doesn’t want a long extension to Article 50 either. It has offered us a truly awful deal that it wants MPs to approve. The EU has to contend with elections this year which are bound to increase the number of eurosceptic populist MEPs. It doesn’t want more of them from the UK. A new Commission has to bed in and doesn’t want to have to continue Withdrawal Agreement negotiations with the UK. It is far better to give some more concessions that will command majority support in the House of Commons (knowing that it still has by far the best part of the deal) than to allow negotiations to keep dragging on.

So please, Brexiteers in Parliament, stay true and be brave. I know that you are facing pressure left, right and centre. The whips are on your back; retired politicians are busy writing op-eds telling you to cave in; newspaper editorials are urging the same; and one of your number, Andrew Percy, the co-chairman of the misnomer that is the Brexit Delivery Group, has accused you of idiocy for holding out. Don’t listen to them. You know that this deal is awful. You know that it is the worst kind of Brexit in name only. Like me, you are probably resigned to not getting the Brexit that you want. You know that you will have to compromise, but you shouldn’t compromise until the second you have to.

MPs will vote again on Theresa May’s deal next week after the EU has made some tweaks, despite what Bercow said on Monday. The Government will get around it with another one or two pieces of paper from the EU. If it is still a bad deal, they should vote it down. Watch the EU stop the clock on 29th March if it has to, and watch them make more concessions. Please remember that the EU has invested an enormous amount of time and effort into these negotiations, too. Theresa May doesn’t want to throw away more than two years of work, but neither does Michel Barnier.

It has to be made clear that the implementation period must be time limited and there must be alternative arrangements to the Irish backstop for the deal to go through. It still won’t be my kind of Brexit, and it still may be a poor deal, but it will be much better than it is now. Importantly, we won’t be trapped.

Now is not the time to give in. There may be just eight days to go, but these negotiations are far from over. Now is the time to fight harder than ever before.

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Theresa May’s deal remains “fake Brexit” – the alternatives are far less damaging

The threat of an Article 50 extension is causing anxiety for some sincere and committed Brexiteers. Some say they should back Theresa May’s deal to “get Brexit over the line”. But the deal won’t deliver Brexit. Worse than that, it’ll lock us in to not delivering Brexit for many years to come. If the deal […]

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The threat of an Article 50 extension is causing anxiety for some sincere and committed Brexiteers. Some say they should back Theresa May’s deal to “get Brexit over the line”.

But the deal won’t deliver Brexit. Worse than that, it’ll lock us in to not delivering Brexit for many years to come.

If the deal goes through, the next day we will not have left the EU in anything but name. For at least 21 months of “transition” – extendable up to four years – we will have to obey the EU’s laws and rules, and be subject to the Commission and the ECJ as now. The big difference is that we will no longer have a vote or voice in the EU institutions. So no vote or veto against EU law changes which damage the City, or against the Commission’s use of State Aid controls to suppress our competitiveness.

The Brexit process will not be “over”, or “done and dusted” by signing the deal. Those 21 months – or longer – will be filled with the turmoil of ongoing negotiations about our future relationship. We will be negotiating against a real “cliff edge” at the end of the transition – unlike the largely mythical and Project Fear 3.0 “cliff edge” we face now. If we do not submit to the detailed terms offered by the EU for our long-term relationship, we will automatically fall over the cliff edge into the backstop Protocol.

The threat of this happening will put huge negotiating power – blackmail power – into the EU’s hands, since the backstop locks us out of having an independent trade policy and divides the United Kingdom.

Some people say the negotiations are like a game of football where we have done badly in the first half. They hope maybe we can do better in the second half under a new captain. But these negotiations are more like a game of chess: our current leadership has sacrificed all the major pieces and left the remaining pieces in positions where check-mate is inevitable in a few moves. The most competent and Brexit-committed future Prime Minister could not magically get us out of that situation.

Being locked in the backstop

The Attorney General rightly reiterated his advice that if negotiations with the EU drag on or break down, then under international law the UK risks being locked indefinitely in the backstop. The key danger was spelt out in the last paragraph of his advice: if through no demonstrable failure to exercise good faith “but simply through intractable differences” the negotiations deadlock, then there would be “no internationally lawful means of exiting the Protocol’s arrangements, save by agreement”.

The fundamental problem is that there is no need for the EU to engage in bad faith conduct in order for us to be locked in indefinitely: they just need to negotiate hard for terms we can’t stomach.

But some arguments have been flying around that we might be able to get out by showing the EU is acting in “bad faith”, or because there had been a “fundamental change of circumstances” under Article 62 of the Vienna Convention on the Law of Treaties.

The “Star Chamber” group took the best public international law advice, and concluded that these arguments have little substance. Leading public international law experts such as Professor Philippe Sands QC and Sir David Edward (the former British ECJ judge) have publicly expressed similar views.

Professor Guglielmo Verdirame of King’s College London takes a different view from other experts. He says that it is “not fanciful” that the EU might be found in bad faith if it “persistently and unreasonably” refused to conclude an agreement.

Let’s assume that he is right and that other distinguished public international lawyers are wrong. After an unknown period of time stuck in the backstop, and depending on the behaviour of the EU, the UK might have a case which is “not fanciful”. That case would then go to an international arbitration panel which would take months or years to rule. Before coming to a decision that panel is required to refer any issues of EU law to the ECJ in Luxembourg for a binding ruling. If Prof Verdirame is right, it is “not fanciful” that the UK might win: but if the arbitration panel rules against the UK, then we are completely and utterly snookered.

If the best advice I can give a client about a case is that it is “not fanciful” that he might win it, the client would need to be mad to go ahead with it – particularly if the downside of losing is huge, and other lawyers thought that the chances of winning are near zero.

The upshot is that if we agree the deal, we will be locked into the backstop and there will be no way out of it which is under our own national control. These theoretical legal arguments do not change the dynamics of the negotiations in practice. We would still have to negotiate with the EU on the basis that we are certain to have to go into the backstop if no deal is agreed before then, and that we would then have no reliable way out of it except with the EU’s agreement. The prospect of hanging the whole fate of the country on the roulette wheel of presenting some novel legal arguments to an international arbitration doesn’t help in the real world.

But what happens if Mrs May’s deal is defeated for a third time?

What has spooked some Brexiteers is President Tusk’s talk about a possible 21-month extension to our EU membership under Article 50. Such talk is cheap – it does not commit the EU’s leaders to grant an extension. Tusk is clearly trying to influence the political process within the UK. People shouldn’t be naive and fall for it.

There are big obstacles against a long Article 50 extension actually happening. All 27 EU member states need to agree it unanimously. If the EU offer it at all, it needs to get through our Parliament with whatever conditions the EU attach to it – and these conditions could require Parliament to pass primary legislation.

The leaked ‘Room Document’ prepared by officials for the forthcoming European Council meeting makes it clear that if an extension goes past 2nd July at the latest, then the UK must as a matter of EU primary treaty law (which cannot be changed in the time available) hold European Parliament elections in May. This is a big downside for the EU, as is the prospect of the UK as a full voting member state causing trouble for the next two years.

But what if the worst happens and an extension is agreed? That would be an appalling betrayal of the referendum result by arrogant parliamentarians who would rightly be held to account for their actions.

But the actual legal consequences would be much less damaging than the May deal. We would be hugely better off than under the deal. We would have effectively the same transition period as under the deal, with the big difference that we would still have a vote and voice in the EU institutions. But the biggest difference is that we would not be locked into the backstop at the end of 2020 or into the other very damaging parts of the deal which have been overlooked in the furore over the backstop.

It is understandably difficult for people to follow the different parts of this complex deal, what is in the Withdrawal Agreement itself, what is in the backstop Protocol, and what is in the Political Declaration attached to the deal. At Lawyers for Britain we have published a master chart which shows where the main problems are and has links to more detailed explanations.

There are some very bad parts of the deal apart from the backstop Protocol. We would have to carry on paying vast sums of money after 2020 which we do not owe under international law. The EU law which the deal applies to us even after the transition period is over would carry on having direct effect and supremacy in our courts over UK law for the indefinite future – something that leaving the EU was meant to end.

And the overlooked Political Declaration contains very damaging provisions. People think that because it is not legally binding, it can just be ignored and we can negotiate with the EU afresh. That is not true. Article 182 of the Withdrawal Agreement commits the UK as well as the EU to use best endeavours to negotiate an agreement in line with the Political Declaration. This means that if we ask for something in the future agreements that contradicts the Political Declaration, the EU can legitimately say that we are not complying with our obligation to negotiate what is in the Political Declaration and therefore the EU has no obligation in turn to give us an agreement which departs from it. Result: we are locked into the backstop with no way out, and no way to complain.

Although much of the contents of the Political Declaration are mere outlines, it does contain prescriptive provisions which are contrary to UK interests. The most damaging is probably Paragraph 23 on tariffs, which is simply not compatible with us negotiating the Canada-style Free Trade Agreement with the EU favoured by most Brexiteers. Instead, it requires “ambitious customs arrangements… that build and improve on the single customs territory” in the backstop. Dominic Raab resigned over the inclusion of this wording in the Political Declaration.

Paragraph 124 of the Political Declaration pre-commits the UK to carry forward the unequal disputes procedures of the Withdrawal Agreement, under which the ECJ will maintain jurisdiction via a backdoor (but effective) mechanism under which the ECJ’s rulings on EU law issues will bind the neutral arbitration panel. This extraordinary mechanism is totally contrary to international treaty practice under which sovereign states do not submit themselves to the courts of the other treaty party, and has so far only been imposed by the EU on the desperate former Soviet republics of Ukraine, Moldova and Georgia.

Paragraph 75 states that: “Within the context of the overall economic partnership the Parties should establish a new fisheries agreement on, inter alia, access to waters and quota shares”. This does not contain detail but is a concession in principle by the UK on there being fishery quota sharing as part of the economic partnership with the EU. The EU will undoubtedly leverage this concession to demand continued access to UK fishing waters for EU boats and the UK will be in a very weak negotiating position to resist the EU’s demands.

Mrs May trumpets the end of free movement of persons as her great achievement. But Paragraphs 50 to 59 of the Political Declaration commit the parties to establish “mobility arrangements” to replace free movement, and “to consider addressing social security coordination in the light of future movement of persons”. The precise content of these arrangements is not spelt out, but in view of its weak negotiating position up against the backstop, the UK may well be hard pressed to resist pressure to expand these arrangements.

If we are subjected to an Article 50 extension instead of the deal, none of these damaging provisions or negotiating constraints would apply to us, leaving a future Prime Minister in a position to negotiate with a free hand.

Conclusion – the choice

The threats of an Article 50 extension have created a dilemma which worries many committed Brexit supporters. I understand those worries. An emotional response is to just grab onto the deal, even if it is horrible, in order to “get Brexit delivered”.

But at this critical time it is vital that our MPs should vote not just on emotion but after looking very carefully at the legal as well as the political consequences of the courses of action.

The deal does not deliver Brexit except in name. Not only does in not deliver Brexit, it also makes it impossible for a future Prime Minister to deliver a real Brexit as well, for many years to come or indefinitely. The momentary relief from some Leave supporters at nominally leaving the EU is sure to turn to anger, disillusionment and blame when it becomes clearer and clearer that Brexit has not been delivered, and that the Conservative Party in particular – including the Brexiteers – has failed to deliver real Brexit and has delivered a locked-in fake Brexit instead.

But if the deal is rejected, the most likely outcome is that we get out on 29th March with the referendum objectives achieved of taking back control of our laws, our borders, our trade and our money. Please see the excellent article by Christopher Howarth which explains why it is so difficult for Remainers to force through an Article 50 extension in the remaining few days if the deal is rejected again.

It was bound to get rough as we approach the point of actually leaving the EU. Now is not the time to lose our nerve and back a gravely damaging deal which would betray Brexit supporters and be very bad for the country. Contrary to the Prime Minister’s contention that it is patriotic to support her deal, the patriotic thing to do is to throw it out again.

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Ignore the nay-sayers – here’s why we’re still on course for a clean Brexit on 29th March

The Withdrawal Agreement has been defeated twice by historic margins, for all the reasons we are all too well aware of – not least the inability to escape the horrors of the backstop. In normal times a government defeated on a major policy would show some contrition, maybe even resign, but not this one. MPs […]

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The Withdrawal Agreement has been defeated twice by historic margins, for all the reasons we are all too well aware of – not least the inability to escape the horrors of the backstop.

In normal times a government defeated on a major policy would show some contrition, maybe even resign, but not this one. MPs are going to be invited to vote again and again until, well, they sign away their right to vote to the EU27. This is an idiotic policy that is bound to fail. If you ask the same question, you get the same answer.

Before the second defeat of the ‘deal’ and Tuesday’s vote on a motion to take ‘no deal’ off the table, I wrote that the Brexit result “is already a foregone conclusion”, asserting that it’s already a certainty that we will leave on 29th March without a deal or without the backstop. So far I have not heard any credible counter-arguments.

So, following this week’s events is this still true?

Yes, and more so.

So where are we now?

  • We are two weeks away from Brexit with very few sitting days left in the Commons and Lords. This makes the Remainers’ games very, very difficult. They have to push their deal or proposition through. Opponents hold the castle, guarding the pass.
  • The Commons has just voted decisively against a second referendum – the only remotely viable way to reverse the result of the first – by a resounding 334 to 85 votes.
  • The Commons has voted to take ‘no deal’ off the table in a non-binding motion. This is obviously an affront to logic and the UK’s negotiating hand, but does not change the situation from the last time Parliament did this.
  • The Commons has rejected the constitutional monstrosity of the Benn amendment to take control of the Order Paper to allow indicative votes next week.
  • The Commons on Thursday passed a Government motion to ask for an unspecified extension for an unspecified purpose.

So will the Prime Minister bring the Withdrawal Agreement and Political Declaration back for another try?

Quite probably; she has not shown any imagination ever since she first embarked on a secret two-year attempt to embed the UK in a permanent customs union. She did not blink at the reception Chequers received, she barely blinked when defeated by 230 votes. Honourable pro-Leave Cabinet Ministers resigning left, right and centre is all just water off a duck’s back. Yes, she will try another vote, Plan B is Plan A and C-Z ditto. She will lose.

There is a parliamentary rule in Erskine May that you should not ask the Commons to vote twice on the same subject. This was arguably broken on Tuesday, but it’s worth asking: can she now extract changes to her deal to present a new proposition? The answer is probably no.

No, because the Prime Minister does not want to change her deal. No, because when presented with the chance to vote on the Malthouse proposals for alternatives to the backstop, she refused (along with her Brexit Secretary). She has allowed her own Cabinet to sabotage her negotiating hand, because she is not proposing to negotiate. She does not support changing the backstop – so it won’t be changed.

There is a European Council meeting on 21st March, so might it be possible the EU27 throw the Prime Minister a new meaningless piece of paper for the Attorney General to opine on? Still possible, but it is already clear it will make no difference.

MPs will be asked to vote on the same deal and will give the same answer.

But that is not everything. There are some genuine fears exercising some MPs, pushed out by Number 10 and certain ambitious Cabinet Ministers, who want to vote for the deal and be Prime Minister.

Potential fears:

1. If MPs vote down the ‘deal’, they will allow Remain MPs to force through an extension?
In fact the guaranteed way to an extension is to vote for the Withdrawal Agreement as the Government has itself argued (and the Commons has passed a motion to the effect) that it will require an extension to prepare legislation to implement the deal. Therefore, MPs voting for the deal will also have to vote for an extension, otherwise the deal will time out as the passing of the legislation is a condition of ratification.

But running with the argument, we have ruled out a second referendum, and won’t extend to implement the ‘deal’ when the deal is defeated. What is left? Will the Prime Minister tear up her deal and seek an extension for something else? The EU will not allow an extension for no purpose (as acknowledged in the Government’s motion passed on Thursday), and nor will the Conservative Party or Parliament. The last deal took two years to negotiate behind the backs of the Cabinet, there will not be any new negotiation, so will the Conservative manifesto be ripped up and the UK participate in Euro-elections? No. The Prime Minister is not that foolhardy. At worst, we might see a short extension to prepare for ‘no deal’, but that itself is unlikely and hardly a reason to back a disastrous deal.

2. If MPs vote down the ‘deal’ they may get a new Prime Minister? And tidy up afterwards?
A line touted by various Cabinet Ministers, this is a fundamentally dishonest argument. Not only would any promise by the Prime Minister to stand down be ignored, it would not solve anything. In the backstop even Genghis Khan as Prime Minister would come up against the fundamentals of international law. But we won’t have Genghis Khan, we will no doubt have a Prime Minister who voted for a deal that he/she now seeks to unravel against Foreign Office and Civil Service advice. An unlikely and self-serving tale.

3. Labour will vote for the ‘deal’?
This scenario comes from the same school of thought that believed Labour would vote for a second referendum. It misunderstands the nature of opposition and the Labour leadership. Labour have no interest in taking part ownership of an unpopular deal. They want government and leaving the Tory Party in sole ownership of the deal suits them just fine.

4. The ERG and DUP will fold?
The most ludicrous and lazy of all journalist lines, spun by an increasingly desperate small group of centre-right commentators and think-thanks close to the Cabinet, is that the DUP are biddable, and the European Research Group will fold. This is rot. It should come as no surprise that the DUP are Unionists and the ERG MPs are largely life-long eurosceptics committed to the UK Parliament making UK laws. This is not going to change. Of course, there are trades in the normal course of politics, but no party or group can trade away policies that are existential to their identity. Sir Bill Cash will not agree to the EU legislating in the UK any more than the DUP will agree to separate treatment for Northern Ireland. And remember the Withdrawal Agreement cannot pass without the DUP or ERG.

So there we are. The ‘deal’ will be defeated again. It may be defeated several more times until the Prime Minister is dragged from her roulette table.

So, what of the other horror scenarios being used on MPs? They have no substance. There is no reason to vote for the deal you dislike because you fear the machinations of someone else – particularly when the machinations are ephemeral and vaporous. A miasma seeping out of Downing Street and its allied think-tanks. No MPs will not be fooled by this.

Why vote to give the Prime Minister a victory into a permanent backstop if you want someone else to negotiate the trade deal? Why believe the threats of a Conservative Government that it will act against its own and the country’s best interests to threaten its own MPs into submission? These are dark arts, practised by a particularly hapless novice wizard.

Downing Street’s last weapon is fear – fear they may do something even worse to themselves than they were already planning! To paraphrase the lesser Roosevelt, the only thing we have to fear is fear itself – and MPs are not fearful of a weak unimaginative Government desperate to push through a failed deal.

Parliament does not want to re-join the EU, it does not want a referendum. It cannot ask for an extension to implement the deal if MPs don’t want the deal. And nobody could stomach another drawn-out negotiation going on for potentially years and the imminent prospect of European Elections, manifestos, campaigns and all that comes with them. Once you have eliminated all the alternatives, the conclusion is staring you in the face – the UK will leave on 29th March and take back control.

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A WTO No Deal Brexit is now the only way to honour the referendum result

As Attorney General Geoffrey Cox’s attempts to procure a legally-binding change to the backstop appear to have proven futile, the last hope for Theresa May’s deal is slipping away. Reportedly, the Cabinet already anticipates another crushing Commons defeat when the vote is held tomorrow. As with the earlier vote in January, the Prime Minister will be outflanked […]

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As Attorney General Geoffrey Cox’s attempts to procure a legally-binding change to the backstop appear to have proven futile, the last hope for Theresa May’s deal is slipping away. Reportedly, the Cabinet already anticipates another crushing Commons defeat when the vote is held tomorrow.

As with the earlier vote in January, the Prime Minister will be outflanked on both sides. Firstly, by Remainers of all stripes who seek to press home the huge advantage May ceded to them: following the rejection of her deal, in two subsequent votes, these MPs will be able to rule out a No Deal with World Trade Organisation rules, and then seek an extension to Article 50 in the hope of bringing about a second referendum.

On the other hand, the eurosceptic Conservatives of the European Research Group, led by Jacob-Rees Mogg, have made it abundantly clear they will not vote for the Withdrawal Agreement without real movement on the backstop. In line with their ‘three tests’, the ERG rightly demands a temporary arrangement from which Britain could unilaterally exit, replacing the potentially indefinite one which would turn Britain into a vassal state. Geoffrey Cox, however, is getting nowhere fast; and for the second time, May’s deal seems doomed. 

In terms of leverage over her divided party, May can no longer use the threat of No Deal to bring Tory Remainers round to her deal, after sanctioning the 13th March vote – however hard she tries. Clearly, the Government still thinks it can use the opposite threat of ‘No Brexit’, or ‘No real Brexit’, to whip the troublesome eurosceptics into line. Accordingly, the Prime Minister used her speech in Grimsby on Friday to frame her deal as the last chance for the ERG – and Brexiteers – to get something resembling what they want.

Another key player, Philip Hammond – the anti-Brexit Chancellor, as Get Britain Out has previously written about here – could hardly have been clearer about this when he warned last week:

“For those people who are passionate about ensuring that we leave the European Union on time, [the prospect of a vote to delay Brexit] surely must be something that they need to think very, very carefully about now because they run the risk of us moving away from their preferred course of action if we don’t get this deal through.”

Rightly however, the ERG are showing resolve in the face of this tactical threat. Jacob Rees-Mogg argued last week that even if her deal is rejected and MPs vote for an extension to Article 50, these votes are not legally binding. It still remains in the power of the Government to deliver Brexit on time given ‘votes in the House of Commons cannot override the law’. May could choose not to request the extension from the European Union. It is therefore possible to oppose both the current deal and the efforts to delay the satisfaction of the referendum result beyond 29th March.

Despite the tumult of the past few weeks, we must not forget that in law, following the passing of Article 50, the UK is set to leave the EU on 29th March – with or without a deal. If May is truly determined to deliver Brexit on the 29th, then there is a clear and legal route for her to do so following the likely defeat of her deal.

A WTO No Deal Brexit would ensure Britain leaves the European Union on time, in accordance with Article 50. Yet pursuing this course would not merely be an exercise in damage-limitation. The course remains attractive in and of itself. The economic case for No Deal has been made by Get Britain Out here and here.

What’s more, a WTO No Deal Brexit would firstly deliver on most of the Leave platform and, secondly, present major improvements to the Prime Minister’s deservedly unpopular deal.

Firstly, the repatriation of control over laws, money, borders and fisheries would be secured by a WTO No Deal Brexit. Only a free trade deal with the EU would be missing. On the other hand, precisely such a trade deal with the EU27 would become more likely in the event of No Deal. It has proven so elusive during the negotiations because Britain’s bargaining power has been continually squandered by the Government, ably assisted by the Labour Party.

Jeremy Corbyn has not only come out in favour of a second referendum, but has long advocated Customs Union membership post-Brexit. Whether it is attempting to tie the UK to EU regulatory standards indefinitely, or reverse Brexit completely, such measures can only have given succour to all those on the continent who have never taken Britain’s decision to Leave seriously.

However, if Britain simply Leaves the EU on 29th March, and pursues the radical free trade programme of tariff cuts on up to 90% of imported goods – as leaked from Liam Fox’s Department for International Trade last week – we could call the EU’s bluff by daring to prosper outside its institutions.

Under this ‘hard but smart’ Brexit, as recommended by the IFO Institute in Germany – one of the leading economic research institutes in Europe and regularly quoted in the German media – costs for consumers and businesses would be cut whilst Britain’s negotiating hand would be strengthened. So far, the Government’s unwillingness to present No Deal as a viable option has tied its hands in Brussels. Ironically, this lack of belief in Brexit has made by a WTO No Deal Brexit more likely.

Secondly, the significant advantages of a WTO No Deal Brexit over May’s Deal must not be overlooked, although Geoffrey Cox’s failure to secure a meaningful alteration to the backstop so far will be seen as the central reason for the Government’s likely defeat in Parliament on Tuesday. We should remember the backstop – absolutely unacceptable though it is – was never the only problem with the deal, as Get Britain Out has documented in full here.

As Sir John Redwood has recently made clear in an open letter to Geoffrey Cox, the proposed ‘transition’ period of up to 45 months marked out in the Withdrawal Agreement would turn Britain into a rule-taker with no power of reply.

This would be a fundamental challenge to Britain’s independence. The wide-ranging nature of this threat encompasses everything from business regulations and trading relationships to taxation. Moreover, the UK taxpayer would be paying at least £39 billion for the privilege.

On the other hand, a WTO No Deal Brexit would save Britain from this unnecessary expenditure, which could be better spent on domestic priorities. This Brexit dividend would also include the money saved following the immediate cessation of budget contributions to the EU. Under May’s deal these would continue.

Provided Cox was successful in his renegotiation of the backstop, leading eurosceptics were prepared to accept May’s deal. Rees-Mogg was prepared to back it because if the backstop became time-limited, and Britain could unilaterally leave the EU if no trade deal was struck during the transition, then all the above problems with May’s deal would be time-limited too.  

A spirit of compromise was in the air. A willingness not to make the best the enemy of the good. Now a legal change to the backstop seems impossible – and tomorrow, barring some cosmetic alterations – exactly the same deal which was rejected by an historic 230 votes in January will, in all likelihood, be put to Parliament again.

Eurosceptics must not make a very bad deal the enemy of the best deal now available. Let’s Get Britain Out with a WTO No Deal Brexit on 29th March.

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The Brexit experience shows we cannot blindly trust civil servant negotiators to deliver referendum pledges

There is a strand of thinking right now that Brexiteers should plump for May’s Deal regardless of whatever escape clause paperwork might yet come back in Geoffrey Cox’s suitcase. The premise carries a fundamental flaw. Let’s leave to one side the range of problems that are left in the Withdrawal Agreement even if the Irish/Northern […]

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There is a strand of thinking right now that Brexiteers should plump for May’s Deal regardless of whatever escape clause paperwork might yet come back in Geoffrey Cox’s suitcase. The premise carries a fundamental flaw.

Let’s leave to one side the range of problems that are left in the Withdrawal Agreement even if the Irish/Northern Irish backstop is fixed. The infamous £39 billion. The surrender of assets, except the stuff that’s radioactive. The complete loss of control over fisheries management, risking the prospect of a ‘final clear out sale’. The locking of the UK into the ECHR, despite previous Conservative pledges to develop human rights law domestically (as Australia, New Zealand, and Canada somehow manage to do).

Or for that matter, the worrying issue of the ‘Rioters’ Clause’, Article 18 of the backstop. This trip wire allows the Commission to suspend any part of the deal where the UK or Northern Ireland gain a competitive advantage. It also operates as the one area where the UK could unilaterally pull out of the backstop, but only if there is mass civil unrest – a fate which the clause itself correspondingly increases over time. Alarmingly, it remains off the general radar.

Let’s assume that we have resolved to abandon these issues and others beside, write them off and put faith in what may prove to be a legal post-it. What then? I would suggest we ought to pay more thought right now to the prospects of delivery. Without this, going for a WTO plus bilaterals, including the Contingency Measures that the Commission and individual member states have already signed up to, would make more sense.

At some point the UK will seek to move away from the backstop. The objective will be to seek a fresh trading arrangement, one that accommodates the EU’s genuine need to ensure that products enter the EU market that are compliant with EU rules – and, it should be added though it rarely is, applies conversely as well in the interests of the UK consumer. Let’s not forget after all that tasty Findus horse lasagne. But the incentive will be for the negotiators to deliver something convenient and easy, closer to the model of a customs and regulatory union applied to all of the UK rather than just to those exporting.

Frankly, the events of the last couple of years should demonstrate that Brexiteers cannot afford to put blind faith in their negotiators, current or potential. Even if the backstop is magically delivered, the delivery of a meaningful Brexit itself remains at high risk. One is left reflecting on whether, had the UK model and approach been copied in Riga and Tallinn in 1991, the Baltic States would today still be part of Russia.

It would be grossly unjust to sweepingly place everyone in the civil service on the same charge sheet. There are many inspiring, professional, bright, competent and visionary people amongst its ranks. But the toll of forty years of membership of the EU system has, inevitably, had an impact on the general systemic psychology of Whitehall. George Eustice’s resignation letter contained a notable statement that DEFRA “more than any other government department, has embraced the opportunities posed by our exit from the EU.” My own experience over the years has shown very mixed levels of open-mindedness towards EU matters across departments, with officials dealing with Fisheries indeed proving rather more keen to address core treaty failings than counterparts for instance in the Foreign Office (no doubt because they were the ones always left holding the wrong end of the policy toilet brush).

Caveats noted, one cannot though ignore the issue of core affiliation amongst top management. Tony Connelly, in his book Brexit and Ireland, recalled the first conflab of the leading civil servants of both countries after the referendum; “‘It’s fair to say that on the other side, most of the people in the room wouldn’t have been happy with the [Brexit] situation,’ recalls one Irish secretary general. ‘So there was a degree of remorse and regret on their side, and equally on our side.’” I can well believe it: I have a letter beside me from as far back as 1998, from an official in the European Union Department of the FCO stating that “we should not ignore or deny the benefits which the European Union brings and which are too often downplayed.”

The same discussion with the Irish “involved a lot of talk” about the UK potentially wanting to stay in the Customs Union. The detail should also alert us to the wider and perennial risk of what happens with civil servants left devoid of clear direction or firm grip: the prospect of dropping policy on ministers’ laps if they don’t work it out themselves. And sometimes even if they do: I recall one former minister at the Home Office telling of a particular policy that he had been presented with, which on asking around with predecessors turned out to be something they had binned but which mandarins had pushed quietly, and repeatedly, back on the agenda for their successors.

We might also consider the proven back history to policy drift involving two of the four negotiating pillars in play, on Justice and Home Affairs and on Defence. The ratio of the Danes using their opt outs in JHA compared to us runs to around 17:1, and they have even walked away from Europol while still EU members. By contrast, when the ECJ was given direct competence over JHA matters under the Stockholm Process, the UK Government signed straight back up to a third of the agreements despite open and vocal backbench Conservative opposition. Meanwhile, as Veterans for Britain has documented, MoD policy towards signing up to, signing off, or sidling away from EU Defence initiatives can only be described as haphazard and, one suspects, dependent on which minister is in the chair on the day. None of this bodes well for guaranteeing a robust and truly intergovernmental form of end deal.

I do not wish to exaggerate the extent to which our form of government is run as a Technocratic Synarchy; a number of political diaries over the years suggest this is determined by the character and resolution of a given minister. What this ought to alert us to, however, is the risk arising from running a process of negotiation around a Political Declaration that remains as ill-defined as Mr Messy, and which senior Commission negotiator Stefaan De Rynck recently acknowledged could deliver an end set of terms that ranged anywhere from an FTA to a combo Customs Union and Regulatory Union.

If one does accept the Transitional Agreement as the route, delivering a final deal that honours the Brexit vote will depend entirely on the quality of leadership and management operating within the Cabinet Office, and even then it runs at very great risk, because of the nature of the task that is being undertaken. One is taken back to the Westwell Report, that reflected upon the limits of the civil service in Margaret Thatcher’s day;

“The Civil Service is a much more formidable obstacle to national recovery than the trades unions. It is difficult for 90 Ministers and a handful of advisers to shape history, in the face of three or four thousand senior civil servants who see it as their job to defend the status quo”

Or again to Norman Straus’s Number 10 Policy Unit paper back in 1981, reflecting on the formation of the top echelons;

“Their lifetime in the Civil Service, and the qualities of obedience, caution, don’t make trouble, observe precedent, which got them to the top are the definitive disqualifications for being able to reform the systems and handle a period of turbulent national change.”

This is before we even get into the matter of delivering clearly enunciated policy that has been unanimously agreed. For an example, I invite you to reflect on the perfectly obscure yet enlightening example set out in Appendix L of the third volume of Churchill’s war memoirs. This relates over a couple of pages how an instruction reached at Cabinet level simply to deliver two tanks to Egypt went badly awry owing to a train of administrative circumstances, including a deceased brigadier, a dinner conversation, a distracted NCO, and an absence of grease. Churchill excuses the anecdote by saying, “I print these details to show how difficult it is to get things done even with much power, realised need, and willing helpers.”

No doubt due and wider balance will be restored across Whitehall simply with the passage of time, the advantage of hindsight, and the operation of fresh recruiting, training and promotions, though it will take some years to percolate into the cadre levitating into the Lords. But for the moment, our current administrative climate is not the best environment to be blindly entrusting people with delivering on referendum pledges. How much more so when you have a poorly-silhouetted exit door, and you aren’t even yet sure the key fits?

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Don’t believe claims that Brexit threatens the peace in Northern Ireland

What follows is an open letter from the authors to Theresa May… Dear Prime Minister, We understand the future of Northern Ireland weighed heavily in your decision to agree an Irish backstop in the draft Withdrawal Agreement and remains a factor in your continuing support for the backstop, albeit now on a temporary basis. Your concerns are […]

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What follows is an open letter from the authors to Theresa May…

Dear Prime Minister,

We understand the future of Northern Ireland weighed heavily in your decision to agree an Irish backstop in the draft Withdrawal Agreement and remains a factor in your continuing support for the backstop, albeit now on a temporary basis. Your concerns are said to include maintaining a peace widely seen as fragile, sustaining the Union and protecting jobs.

We fully agree, of course, that peace is vital. Your undertaking on no new infrastructure on the border in Ireland is wise. No-one wants the police or others to come under attack erecting, repairing or maintaining barriers, cameras or anything else. Expert opinion given to the Northern Ireland Select Committee suggests that infrastructure is no longer needed since modern electronic procedures can do the job, so we hope that this is not an issue.

On your trips to Northern Ireland some will have told you in all sincerity of a more general danger to peace from disaffected Republicans. However, in the over-heated context of Brexit many arguments are self-serving and cannot always be taken at face value. Sinn Fein themselves say there will be no return to violence. Indeed, sacrificing their hard-won electoral position in the Republic of Ireland would be an illogical thing for them to do.

Gerry Adams also asserts that dissident Republicans have negligible support in the Nationalist community. A few dozen dissidents may always be capable of criminal activity as the recent Londonderry car bomb showed, but the security services have managed the dangers with admirable skill and will no doubt continue to do so.

Nor is there much evidence that Brexit puts the union in any real danger either from Nationalist disaffection or because Protestants would prefer Irish unity in order to remain within the EU. Reliable evidence shows little rise in support for Irish unity following the 2016 referendum. While some polls have indicated support for Irish unity in the high forties per cent range, more reliable polls have it down closer to the traditional 20%.

Polls showing higher support for Irish unity use samples drawn from voluntary panels and these seem to biased away from working class people and especially from the Unionist working classes. The gold-standard polls are undertaken for the Life and Times Survey funded by the UK’s Economic and Social Research Council using face-to-face interviews.

The latest LIFT survey from 2018 showed that support from both communities for Irish unity was around 20% and only a little above pre-referendum levels. Support for Irish unity among self-described Protestants remains minuscule and of course the DUP made major gains at the 2017 General Election in reaction to claims that Brexit meant growing support for Irish unity. Even among Catholics, Brexit has not led a majority to support Irish unity. Sinn Fein’s calls for a
border poll have become Augustinian – a border poll yes, but not yet.

The correlation between Catholicism and support for unity is weaker than many assume. The 2011 census showed that only half of Northern Ireland’s Catholics identified as ‘Irish’ and fewer than half had an Irish passport. The Life and Times Survey shows that even in 2017/18 the proportion of Catholics who support eventual Irish unity is 41%. Only 7% express a desire for immediate unity.

Professor John Fitzgerald of ESRI in Dublin has recently calculated that living standards are 25% higher in Northern Ireland compared to the South. Although wages are generally higher in the South, higher taxes and fees and inferior levels of public service provision mean that northerners do better even before we take cheaper housing into account.

Some argue that the rising share of Catholics in the Northern Ireland population will continue, leading to a majority in a few decades. There is no evidence for this. The 2011 Census clearly shows that the percentage of the population who described themselves as Catholic had peaked among those born almost two decades ago and has subsequently slowly declined. Since Catholic birth rates are now close to those of Protestants, it seems likely the trend will continue.

Migration is also important and here there is major new factor. One in twenty of Northern Ireland’s Catholics are now from Poland, Lithuania, Portugal and the Philippines. The future constitutional preference of these immigrants and their children is hard to predict but it would be wrong to expect them to support Irish unity.

Nor do we believe that jobs are greatly at risk in Northern Ireland. Studies which purport to show economic damage from No Deal are self-contradictory and fail to take into account obvious opportunities. The main challenge would face the dairy industry, but the large potential loss of markets in Great Britain by southern food producers in the event of No Deal would open substantial opportunities for Northern Ireland’s farmers to fill the gap in Great Britain.

All in all, we believe the dangers facing Northern Ireland are much smaller than you may have been led to believe. You face difficult decisions on the UK’s future outside the EU. We do not believe that these decisions should be dominated by groundless fears about Northern Ireland.

Yours sincerely,

Rt Hon Lord Trimble
Kate Hoey MP

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A permanent UK-EU customs union would create worse problems that those it would supposedly solve

The most likely effect of Jeremy Corbyn’s announcement that Labour will support some form of second referendum is to increase the probability that the UK leave the EU without a formal trade deal. That so many Labour MPs have pledged to stick by their election pledge to honour the 2016 referendum means that a second […]

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The most likely effect of Jeremy Corbyn’s announcement that Labour will support some form of second referendum is to increase the probability that the UK leave the EU without a formal trade deal.

That so many Labour MPs have pledged to stick by their election pledge to honour the 2016 referendum means that a second referendum remains highly unlikely. And a good thing too given the serious damage it would do both to democracy and, due to the division and business uncertainty it would bring to the UK economy.

Corbyn’s U-turn will, however, cement the impression in the vital Leave-voting heartlands that Labour is a party of Remain. Just as importantly, it will stiffen the EU’s impression that they have no need to make a serious move on Theresa May’s demand that the unacceptable Northern Irish backstop be re-written. Why give any ground when so many of our parliamentarians and the official Opposition are stating openly that are prepared effectively to cancel Brexit on 29th March rather than allow the UK to leave without a trade deal?

It should go without saying that if the EU know we will not leave without a deal, then they have no incentive to change the backstop. And with no change to the backstop, the Withdrawal Agreement as it stands looks dead in the water.

Attention now is likely to switch to whether Theresa May will reverse her long-standing promise to leave the Customs Union with the aim of tempting enough Labour MPs to back a Withdrawal Agreement.

For some months, the Labour front bench has taken to endless repetition of the “permanent customs union” mantra as if this is some sort of magic key to unlocking the Brexit stalemate. In fact, nothing could be further from the truth. The real puzzle is why journalists (as well as Labour backbenchers) do not subject this flagship policy to more scrutiny. As as soon as you do, it becomes clear a permanent customs union does not solve the problems it is aimed at and creates even worse ones of its own.

The fundamental arguments against the EU’s Customs Union are well established: it works as a protectionist mechanism to protect large EU companies from overseas competition. Although many tariffs are low, this is not the case for significant sectors such as food, clothing, footwear and cars. As a result, prices for hard-pressed consumers are higher than they should be, companies have little incentive to invest in improving productivity (which in turn limits wage increases), whilst poorer countries can find they are effectively frozen out of EU markets limiting their ability to develop.

On those grounds alone, it’s odd that Labour MPs think this is going to be a vote-winning strategy, but that is only the start of it.

Being in the Customs Union after we have left the EU would leave us in the same situation as Turkey – having to accept whatever tariffs the EU decide on whilst having no say in trade negotiations. But, even worse, when the EU strikes a future new trade deal with another country, say India or Argentina, we would be bound to accept zero tariffs on imports from that country, but with no obligation on them to drop tariffs on UK exports.

It is sometimes suggested that the UK could keep a say in future trade policy, possibly through the EU and UK forming a new customs association going outside EU boundaries. If you believe that the EU would ever countenance such a proposal, perhaps I can introduce you to a friend of mine who has a splendid bridge for sale. No doubt, the EU would be happy to pledge to ‘consult’ with the UK on future trade deals and tariffs but we can safely rule any significant role in decision-taking and safely rule in the European Court of Justice having the final say on our trade laws.

Have John McDonnell and Jeremy Corbyn forgotten TTIP – the proposed US-EU trade which they hated by so much? By strong-arming the UK into a ‘permanent’ customs union with the EU, they would forfeit any power for a future Labour government to stop such proposals in the future.

Defenders of the customs union idea suggest that it will keep frictionless trade and solve the Northern Ireland border, but even that is not so. Getting rid of tariffs does not in itself solve the problem of border checks because nil tariff customs declarations must still be filed and sanitary/phytosanitary and other regulatory checks are required. Only by remaining within the Single Market at least for goods can checks on trade be avoided.

The catch is that the EU will not allow the UK to have partial membership of the Single Market for goods as they believe this will distort trade. Staying in the Single Market would mean accepting freedom of movement and continued payment to the EU, effectively staying in the EU in all but name – giving away our money and losing even more control over our laws. It’s hardly the slogan that will endear Leave-voters to either of the main parties.

In reality, being outside the Customs Union and the Single Market need not involve significant delays at the border. The vast majority of checks and tariff payments are already made electronically or away from the border. Actual border checks tend to focus on smuggling and other illegal activity and are highly targeted and intelligence-led.

As soon as you look beyond the headline, it becomes clear that committing to a permanent customs union is a policy without any serious merit, unless of course you want to nullify Brexit completely. So what should MPs who want to respect the referendum result but are worried about the impact of No Deal on their local industries be looking to achieve?

Well, in the first place, they should remember the advantages that a clean break on 29th March will bring. First, it would end the uncertainty for business far sooner than would any version of Theresa May’s Withdrawal Agreement under which our future trading relationship with the EU would remain unresolved for many years.

Further, the Government would regain the ability and the cash to help affected industries through the transition. On current trade patterns, even if full tariffs were charged, UK firms exporting to the EU would be the liable for about £5 billion whilst EU firms would find their exports to the UK liable to about £13 billion of tariffs. This is money which the Government can use to provide agricultural assistance, more targeted regional policy, R&D credits and even some transitional payments – measures that are all legal under WTO rules but only become possible once we have left the EU.

The UK would not only be free to agree FTAs with non-EU countries, we also would have the option of immediately reducing or even abolishing tariffs on imports, starting with goods for which there is little UK production. This would help both consumers and firms importing intermediate goods as part of their manufacturing process. Despite the relentless coverage given to firms who say they may leave the UK, a clean break on 29th March would actually encourage firms to set up or increase manufacturing capacity in the UK, thereby ensuring good access to the strategically important UK market. Indeed, this process is already happening, although it is rarely reported. Look, for example, at Medstrom announcing a new manufacturing facility in the East Midlands because of Brexit, whilst Nissan have started the process of trying to source more parts from the UK.

Finally, it is likely – once out of the EU and freed of the time pressures of Article 50 – that we would find it easier to negotiate a Free Trade Agreement with the EU. Then, the leverage would be on our side of the table.

There is a strong case to be made that, far from hitting the economy, leaving without a formal trade deal on 29th March will actually provide a net boost to UK business.

Perhaps most importantly, MPs need to realise that, in practice, ‘No Deal’ has already been taken off the table due to the large number of side deals that have already been agreed with the EU and other countries. These cover areas such as citizens’ rights, cross-border transport within the EU, mutual recognition on standards with the US, a number of financial services and continued free trade with important partners such as Switzerland.

Putting pressure on the Government to prepare properly and fully for 29th March should be the main focus for MPs of all parties.

A key step in that process should be to rule out once-and-for-all damaging policies such as another referendum, delaying Brexit or a permanent customs union. A clean break on 29th March is nothing to be afraid of; but only when the EU understands that the UK will be taking back control of its laws and trade policy, come what may, will there be a real prospect of achieving a Withdrawal Agreement that is acceptable to both sides.

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As the Brexit talks reach their endgame, the EU may again demonstrate its capacity for flexibility

We are now entering the final stage of Article 50 negotiations with the EU. The meaningful vote is due by or before 12th March, setting a deadline less than two weeks from today; and the Attorney General, Geoffrey Cox, will take centre stage in the Brexit endgame. As the EU have stubbornly refused to reopen […]

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We are now entering the final stage of Article 50 negotiations with the EU. The meaningful vote is due by or before 12th March, setting a deadline less than two weeks from today; and the Attorney General, Geoffrey Cox, will take centre stage in the Brexit endgame. As the EU have stubbornly refused to reopen the Withdrawal Agreement itself, Cox’s aim is to secure a legally-binding protocol on the backstop. The hope is that this will enable him to update his legal advice, which currently sets out that the backstop could exist “indefinitely” if negotiations on the future UK-EU trade deal break down.

History shows that when the EU’s refusal to renegotiate collides with the reality of domestic politics in a member state, Brussels has shown flexibility to facilitate ratification. Crucially, the legal instruments favoured by Brussels – protocols, addendums – have legal force even if the treaty itself remains untouched. At Open Europe, I have recently published a briefing which outlines historical examples of the EU revisiting a trade deal which was supposedly done and dusted. None are perfect analogies for the backstop impasse, but they illustrate wider points: that the EU is more flexible than it seems, and that it isn’t over until it’s over.

In 2009, the Republic of Ireland secured legally binding guarantees which enabled it to ratify the Lisbon Treaty. This included a commitment to a protocol, later annexed to the Lisbon Treaty, which clarified that the Treaty did not compromise Ireland’s sovereignty in several sensitive areas – abortion policy, tax policy and military neutrality. Whilst this did not directly contradict the provisions of the Treaty itself, it shut down unfavourable consequences of the Treaty which Irish voters feared. Although the UK’s case is a question of ratification by MPs, not voters, there is a parallel here. Many Brexiteer MPs object to the backstop not so much because of its substantive provisions, but because they fear the UK could end up ‘trapped’ there permanently. The EU may insist this is not its intention, but only by putting this commitment into stronger legal terms can they hope to win enough MPs over.

Ireland also convinced the Council to agree to legally-binding terms that the reduction in the number of EU Commissioners, established as a default by Article 17 of Lisbon, would not go ahead. Then Taoiseach Brian Cowen said at the time: “Ireland wanted firm legal guarantees. We got them.” If Theresa May can stand up and tell her backbenchers something similar on the temporary status of the backstop, there is hope for the deal yet.

Another example of EU flexibility came in 1992, when Denmark voted down the Maastricht Treaty. In the quest to unblock Maastricht’s passage, the Danes secured guarantees even stronger than those of the Irish. Though Maastricht itself was unaltered, its potential future effect in Denmark changed markedly. In particular, the European Council legally recognised two unilateral Danish guarantees recognising that any further integration in two areas – Justice and Home Affairs, and EU Citizenship – would be put to referendums in Denmark. This provided the Danish people with commitments in international law that they wouldn’t be sold out by a pro-integration government. 

The Danish example bears parallels to today’s conundrum too. A key reason why the DUP (and indeed other Northern Ireland Unionists) oppose the backstop is because it can be superseded “in whole or in part” – raising fears that a future UK government might abandon Northern Ireland behind in the customs union while Great Britain leaves. Bluntly, the DUP does not trust London, which is why it poured scorn on the unilateral commitments offered by the UK to Northern Ireland in January. However, if the EU were to give legal recognition to these and other unilateral commitments, this would lend them much more weight. It did so for Denmark; it can do so for the UK.

There are two other examples of the EU offering legal guarantees to get a deal over the line. In 2016, a Joint Interpretative Instrument on the EU-Canada deal helped overcome the objections of the Wallonian regional parliament in Belgium. In the same year, another legal instrument – an addendum – was used after voters in the Netherlands rejected the EU-Ukraine Association Agreement in a non-binding referendum. These examples are less directly analogous to the backstop, but add further weight to the broader point that the EU can be flexible when it needs to be.

Many argue that the EU can’t, won’t or shouldn’t offer the same kind of concessions for the UK as it would for a non-departing member state. But this is an unreasonable argument which makes a virtue of inflexibility – and also flies in the face of the evidence that the EU is prepared to at least consider additional guarantees for the UK. The key question will be what guarantees Cox can obtain from the EU, and what legal effect they will have. Even Brexiteer MPs are now recognising that substance matters more than form, and are no longer insisting on a reopening of the Withdrawal Agreement. It remains to be seen what the new legal scrutiny group, fronted by Sir Bill Cash and Dominic Raab, will make of ‘Cox’s codicil.’ But if the EU is willing to show the same flexibility that it has done in the past, then a smooth, timely Brexit is still possible. 

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Businesses are screaming out for certainty – which is why delaying Brexit would be so alarming

Lost amongst all the drama and excitement expressed in the coverage over the last fortnight of defections from Labour and the Conservatives to The Independent Group (TIG), has been the voice of British business. The overwhelming majority of British businesses just want the Government to get on with delivering Brexit, and finally get back some […]

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Lost amongst all the drama and excitement expressed in the coverage over the last fortnight of defections from Labour and the Conservatives to The Independent Group (TIG), has been the voice of British business.

The overwhelming majority of British businesses just want the Government to get on with delivering Brexit, and finally get back some certainty as to what rules are going to apply to them. But unless the Government is able to provide this certainty, investment decisions for this country will be held back until the picture becomes clearer. That makes all of us poorer.

For the Prime Minister to now give MPs the opportunity to frustrate our exit should cause every real business in the country real alarm. Achieving certainty, clarity and finality must be the priority.

This is why the Alliance of British Entrepreneurs is making the case for exiting the EU on WTO terms, rather than signing up to the Prime Minister’s Withdrawal Agreement with its dangerous backstop. We now have over 450 businesses who have signed up to publicly support our various campaigns against the prevailing myths about where business stands on the deal. Despite operating purely on word of mouth, we represent more businesses (from more sectors and regions) than the CBI or Number 10 have been able to generate in all their joint letters seeking to push Project Fear on the British people. This gives an indication of the level of anger and frustration amongst the business community about political dithering.

Unless the backstop is replaced, the deal won’t bring any sense of finality to Brexit. It will have the UK cascading through possible delays, possible extensions to implementation periods, possible participation in a customs union (via the backstop or otherwise) and possible reversal of the decision to leave, in its entirety, throughout the process. There will be no certainty about the direction of travel for the UK at any point ahead of the next general election in 2022, at least. That is not satisfactory for the British people or its business community.

The TIGger plan is even more troubling for business. To re-run the referendum and have a second vote now cannot be taken seriously as a suggestion for how to bring finality to the issue of our relationship with the EU. Even in the event of a Remain win (this time), there is little if any reason to believe that voters would buy that outcome as more legitimate than the result the first time round. Businesses don’t need more divisive debates. We need to move on, however hard that is for some to come to terms with at present.

The public seem to agree too. If you check out the polling when the public are asked about support for a second referendum, they have pretty consistently rejected it – it only gets supported where people aren’t sure whether that would be a referendum on Leave or Remain, or Leave or May’s Deal, or even all three. When those questions are asked instead, support for it falls away.

However, one thing the public are clear on is their desire for by-elections when MPs opt to resign from their manifesto commitments! Both Survation and YouGov ran polls last week, where a clear majority supported TIG MPs going back to their voters to see whether they agreed with their decision to defect. The polled support for this is far higher than has been achieved in any of the “People’s Vote” polls for supporting a second referendum.

The case for business certainty, and the ability to make long-term plans, would favour this too. If MPs want to walk away from their commitments – to honour the referendum and have the UK leave the EU – the people and the business community should be able to hold them accountable at the ballot box. Bizarrely, though, the TIGgers are arguing themselves that now is not the time for elections or by-elections – because of the uncertainty they think that would be thrown up by them! This while explicitly calling for a hugely divisive national plebiscite. The fact they can say this publicly without widespread ridicule shows we live in truly extraordinary times.

While all the attention last week was on the TIGgers, businesses are at least reassured to see other Members of Parliament, including one-time die-hard Remainers, reconciling with where we are, being prepared to do the hard work and make compromise across their party, including with those with whom they previously openly strongly disagreed. Sensible-minded business people are relieved to see MPs like Nicky Morgan embrace pragmatism, and genuinely act in the national interest. These MPs deserve our vocal support. They have accepted the result and are now seeking genuine, grown-up solutions alongside their eurosceptic colleagues. That is how good outcomes are achieved in the greater interests of the country, not through breakaway-party ego-trips.

The reality is that the typical British business is not represented by the CBI or the variety of pro-EU talking-heads constantly popping up on our TV screens. These are groups with a vested interest in remaining bound to Brussels rules, because it works in their favour. Multinationals spend millions upon millions lobbying that system to rig the rules so they can keep out competitors. Fortunes are spent on professional lobbying each year to prevent disruptive start-ups and SMEs from encroaching on established industry groupings, at the expense of the consumer. The policy-making machine in Brussels has been totally captured by these groups, with no real say or control for voters, or indeed British business. Want an example? There are two and a half times as many financial services lobbyists in Brussels alone as there are MEPs.

Only one in twenty UK businesses even trades with the EU – the idea that all business people want to keep everything up in the air to have their rules set by Brussels is for the birds. They certainly don’t want to do it at the cost of being able to get on doing business in the interim.

What’s needed now is certainty. Talk to any business, in any sector, and they will tell you the same. Nothing is more damaging to jobs, investment and innovation than this hopeless, endless malaise; this death by a thousand cuts as drip by drip confidence trickles away. Certainty can only be achieved by ditching any ideas of referendum re-runs or reversal or delay. We need to just get on with it, and take back control.

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If MPs don’t deliver a WTO Brexit, they’ll be allowing Brussels to subvert our economy

The UK is on course to leave the European Union in one of two ways. Either there will be ‘no deal’, the default option for Brexit day: but far from ‘crashing out’, the UK can trade smoothly in the interim under international law and WTO terms, and be free for the future to strike Free Trade Agreements globally and with the EU, follow […]

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The UK is on course to leave the European Union in one of two ways.

Either there will be ‘no deal’, the default option for Brexit day: but far from ‘crashing out’, the UK can trade smoothly in the interim under international law and WTO terms, and be free for the future to strike Free Trade Agreements globally and with the EU, follow its economic star, chart new paths across the world and weather the squalls on the way.

Alternatively, the UK will leave under Mrs May’s deal by being locked into an EU customs union (in all but name), with Britain’s economy bound to EU laws, tariffs and regulations. For even if Brussels agrees to an end date for the backstop, the UK will be obliged to mirror its terms for a permanent deal. 

Make no mistake: a customs union, whatever the name, has been the EU goal from the start. It is the thickest and reddest of EU lines, because on it the Franco-German axis, its founding aims and its future depends. Their joint project, conceived and led by the French to contain German industrial and economic power, gave France security, Germany respectability, and brought economic gain to each. Today this big, interventionist, all-embracing state run from Brussels on French dirigiste lines is poised to subvert Britain’s economy. It will do so through the fair means or foul, deployed ruthlessly in pursuing its own interests.

Over the years, France and Germany moved on from coal and steel to back the winners that now dominate at home and abroad. Carving out a centralised economy, one walled in by tariffs, regulations and EU law, oiled by public support (up front or behind the scenes), the industries that lead the EU’s most powerful sectors, singly or conjoined, emerged. Promoted by chief executives whose minions often bribed their way into global order books, their fight to command markets in the EU and UK has been unceasing, their drive to eliminate competitors through fair means or foul, relentless – Airbus, Siemens, Alstom, Mercedes-Benz, Volkswagen.

Airbus, the aviation giant, sums up the Franco-German ‘project’. Its two dominant shareholders, the French and German states, directly or indirectly each own around 11 per cent of the shares; the remaining proportions are non-state, except for the Spanish government which owns 4 per cent. Airbus is headquartered in Toulouse, run by a German CEO (the next will be French), with main EU production centres in Germany, France and Spain (the others are in China and the US). Known via the UK airwaves through its campaign of scaremongering and threats against Brexit, its international reputation has been mired by bribery investigations in the US, France and the UK – the ‘bribes for business’ allegations follow an earlier finding (in 2010-11) that it breached government subsidy rules. 

Airbus was the result of a Franco-German marriage between France’s Aerospatiale and Germany’s Daimler Benz in the 1970s, a union that may now be replicated by one for their respective locomotive flagships, France’s Alstom and Germany’s Siemens: their proposed merger, though blocked by the competition Commissioner earlier this month, looks set to return, despite the warning that it could lead to ‘higher prices, less choice and innovation’. Paris and Berlin, through their economy ministers Bruno Le Maire and Peter Altmaier, quick to respond, contended the rules should be changed. Given the nature of the EU project, they probably will be.

For such industries and their governments, Brexit is an anathema, threatening their profits, their captive UK market and their use of relatively cheap but skilled British labour – all of which can give them the edge over foreign and potential UK rivals in the battle for UK market share for aircraft, trains and cars. They will keep up the fight to protect such interests in the way they know best, by taxing, regulating and controlling their competitors, by fashioning (or breaking) the rules to their own benefit.

This way of doing business does not suit Britain. This island race, as Churchill put it, made its own way in the world, through a political system that protects freedom and a free economy based on market competition and entrepreneurship, both protected by the common law. The sense that people can pursue an idea or a hunch, can ‘give it a go’ and make it work, breaking into new markets at home and the world over, remains strong. The sense that they can rise to the heights is secured by the knowledge that they are free to excel, and that freedom is guaranteed by the law – one independent of politics, respected and which operates from Singapore to New York.

MPs now agree that Britain cannot sign up to an indefinite customs union under the backstop with no exit clause. But they should beware that the same plan will return as the backstop would be replaced by more of the same to kick in at a later date. It therefore falls to a Conservative Prime Minister to recognise the truths for which her party has stood surety, and reject the backdoor customs union, now or in the future. Britain’s voters, invariably wiser than their rulers, saw that the EU’s corrupting system not only thwarted democratic freedoms, but held them, their aspirations and their country’s economy back.

MPs and ministers should now give way to their electorate and do their duty by the country to honour the promise made under Britain’s unique democratic system, to leave – ‘just leave’ – and go for WTO trade, and not a deal that would give far less freedom than current membership. They should remember it is not the politicians but the people who have made this country work. The people have brought this country to its triumphs, to being the fifth richest world economy, by believing in their ideas, their enterprises, their hunches, seeing through their plans, from the laboratories of their minds to the order books of the world. Unlike their rulers, they believe in themselves. But more important, they believe in their country.

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