Bounced!

MPs have less than a day to study this revised deal. So today’s vote should be postponed. If it isn’t, they should withhold support from the Government.

The last minute dash to Strasbourg…the bear hug with Jean-Claude Juncker…the Brexit Secretary hovering in the background…the breathless claim of a breakthrough…the witching hour press conference, statement and documents…the claims of solemn binding legal changes…the Commons vote less than 24 hours later…the pressure on Conservative MPs to change their minds, back the deal, and get it all over with…the phone calls from the whips…from senior Ministers…pleas…threats…tears (sometimes all at once)…an oped piece for ConservativeHome…most of the Tory press lined up…Michael Gove on the Today programme.  Bounced!

The Great Squeeze is on.  Some will smell a rat, if not a conspiracy.

We doubt Downing Street’s capacity for organising a meticulously timetabled squeeze on the Commons.  None the less, the dramatic midnight hour deal is an EU speciality.  And to what degree the choreography was planned is beside the point, since the effect on MPs is the same regardless.

Each doubter is a wavering householder being pressed by a frantic insurance salesman.  Don’t wait! Sign now! Last chance!  In this case, the salesman will deploy inducements as well as menaces (“your talents, dear boy, are wasted on the backbenches”).

ConservativeHome’s snap take is as follows.  The Government says that legally binding changes have been made to the deal.  There are two main documents in relation to the Withdrawal Agreement itself and the backstop – a joint instrument and a unilateral declaration.  There is a target date for the backstop to end.  There will be an arbitration mechanism for the backstop.

Let us assume that all of these carry some legal weight – even the unilateral declaration, which the Irish Government is apparently dismissing as “the Brits talking to themselves”.  Such a claim should not be dismissed automatically.  Henry Newman and Guglielmo Verdirame have argued on this site that even the exchange of letters in January between the UK and the EU is of some legal significance.

The question that follows in each case is: how much legal weight?

After all, not a word of the Withdrawal Agreement has been changed.  The joint instrument and the arbitration mechanism are meant to do the heavy lifting: to empower the UK unilaterally to leave the backstop if necessary.  In very crude terms, the suggestion is the Withdrawal Agreement alone doesn’t give us that right; but that the Agreement, considered together with these new instruments, does.  We are very doubtful that they are fit for this purpose.

Others will be in the same state of mind – although it must be added that, in these circumstances, people tend to believe what they want to believe.  Those desperate for Theresa May’s deal to pass send for their favourite lawyers.  Those opposed to it – and not only because of the backstop – call for theirs.  Geoffrey Cox has yet to publish new legal advice.  We haven’t heard from Martin Howe.  The Brexiteering group of eight lawyers-come-politicians hasn’t pronounced.  Where is Nigel Dodds? At any rate, one has has vanished, before one knows it, into a Euro-version of Jarndyce and Jarndyce.

Amidst all these doubts, however, there is a certainty.

Namely, that MPs asked to make their minds up today are being put in the same position as Cabinet Ministers were about the original Withdrawal Agreement and Political Declaration texts.  Just as the Cabinet had less than a day to consider these, so the Commons will have less than a day to scrutinise their successor – scores of pages of unscrutinised documentation.

This timetable is clearly inadequate, whatever prejudice you may come to the new documents with; whether you are a Remainer or a Leaver; whether your instincts favour Norway Plus or a Second Referendum or No Deal or a revised agreement whether you are Peter Bone or Dominic Grieve.

So the 118 Conservative MPs who voted against the Government last time round – and others – should push back against the Great Squeeze and refuse to be bounced.  They should support moves to bring the Attorney-General to the Commons this morning.  The mere publication of new advice is not enough.  He must be quizzed about it, and at length.  Happily, the Speaker will doubtless oblige an Urgent Question if necessary.

But even the most scrupulous and exacting interrogation of Cox will not give the Commons the time it requires.  Yesterday evening, Lidington was clinging to a Commons timetable set out before the revised deal was agreed.  This is absurd.

The vote this evening should be pulled, and MPs given, say, a couple of days to read the documents, summon Ministers for statements, weigh the mood of their Associations and constituents, and weigh up what to do.  The House could vote on Thursday evening.

Until or unless the business is changed, Tory MPs should withhold their support from May, the Government and the deal.  Abstention is in order.  That would pave the way for May’s revised deal to be brought back a third time – if they conclude, after a day or two’s deliberation, that “something has changed”.  But if Downing Street digs in, they must presume that the Prime Minister’s better-known formulation still applies.

Nick Boles: Like all revolutionaries, once-reasonable Brexiteers slide towards ever greater radicalism

Where Farage, Johnson and Paterson once praised the Norway option, it is now denounced as apostasy.

Nick Boles is a former Planning Minister and Education Minister, and is MP for Grantham and Stamford.

Let’s play a game. Where are they talking about, and why do they like it?

The first clue comes from Nigel:

“They’re rich, they top the world’s happiness index, they’re allowed to catch their own fish… They don’t pay their money to Brussels… We’re told (they) have to accept all the rules. Oh no they don’t.. They retain the right to veto…”

Boris is up next:

“If we got it right, we could negotiate a generous exit, securing EFTA style access to the Common Market.”

The final clue is offered by Owen:

“This brings us to the only realist option, which is to stay within the EEA Agreement. The EEA is tailor made for this purpose and can be adopted by joining EFTA first.”

What country were Nigel Farage, Boris Johnson and Owen Paterson talking about? The sovereign kingdom of Norway, of course. And what were they so envious of? Norway’s position outside the European Union but inside the common market of the European Economic Area and the European Free Trade Association.

So when did it become apostasy for Brexiteers to argue that on leaving the EU we should move to a relationship a bit like Norway’s? Why do Brexiteers feel they have to attack Common Market 2.0, when for so long they saw it as a promised land, flowing with milk and honey? (Or maybe aquavit and herring.)

The answer is to be found in the pages of A Place of Greater Safety, a novel about the French Revolution by Hilary Mantel. As the revolution unfolds, the ambitions of its original architects no longer satisfy the younger firebrands. They demand ever greater radicalism and condemn those who advocate compromise to the tumbrils and the tricoteuses.

Yesterday Norway Plus was denounced on these pages by my friend Henry Newman, an eager Brexiteer keen to burnish his revolutionary credentials. It is tantamount to non-voting membership of the EU, he claimed. The reality is quite different. Norway, Iceland and Liechtenstein exist entirely outside the EU’s common policies on agriculture, fisheries, justice, home affairs, foreign policy and defence. If we joined them in the EEA, EU law would no longer have ‘direct effect’ and new rules would only apply once Parliament had agreed to incorporate them into British law.

Both Norway and Iceland have refused to implement a whole raft of new Single Market rules over the years: by 2011 Norway had obtained derogations from 55 legal acts and Iceland from 349. The basic rule in the EEA is this: if you really don’t like it, just say “Nei!”

Our contemporary Saint-Just then argued that a Norway Plus relationship isn’t really ‘off the shelf’ – and might be quite tricky to negotiate. But he ignored the fact that the UK is already a signatory of the EEA treaty and has a clear right under the Vienna Convention on the Law of Treaties to retain the benefits of our membership even after we leave the EU. The UK was also a founder member of EFTA and there is no reason to believe that we could not negotiate our accession to this fine organisation (including a temporary derogation from its free trade agreements) by the end of the transition in December 2020. At that point, our future relationship would commence, governed by tried and tested institutions like the EFTA Court, the Surveillance Authority and the EEA Joint Committee, and the Irish backstop would fall away without ever having needed to be activated.

Finally, he warned that renegotiating the Political Declaration to specify a future relationship based on Common Market 2.0 would make us vulnerable to further demands from Brussels. I have news for our young Jacobin. In any version of Brexit we will be subject to further demands from Brussels. Nowhere more so than in the Prime Minister’s current deal, where our desire to escape from the backstop before the 2022 election will turn us into a sitting duck for every EU President and Prime Minister who wants to score an easy win for voters back home.

Membership of Common Market 2.0 is a compromise. Like all compromises, it has upsides and downsides. On free movement and an independent trade policy, it will give us less control than many hoped for, and more slowly than I would ideally like. But, as Nigel, Boris, and Owen once recognised, it also offers us a comfortable halfway house – outside the EU’s political empire-building and inside the common market that the British people voted to join in 1972 and that a previous Conservative government entrenched through the Single Market in 1992.  If the Common Market was good enough for Margaret Thatcher, its modern equivalent is good enough for me – and should be good enough for all who call themselves Conservative.

No Deal can’t be “taken off the table”

The only way of ruling it out is to change the table itself: in other words, to abandon Brexit, or prepare to – as Remainers should admit.

“Is it not the case that four fifths of Members voted to trigger Article 50, and that in doing so, they consciously—or perhaps semi-consciously in some cases—accepted that no deal would be the default option if we did not leave with a deal? If hon. Members have now changed their mind, should they not be open about that and say that they now want a second referendum or to ditch Brexit altogether?”

ConservativeHome can’t improve on this lucid pointer, offered to the Commons yesterday by Nick Herbert, to why No Deal cannot be “taken off the table”.  Let’s follow the train of thought of those of those who deploy the phrase.  Were No Deal to be ruled out, it follows that the UK might remain in the EU, contrary to the referendum result, if no deal between the two negotiating parties can be agreed.

And it can only be ruled out by MPs voting to revoke the same Article – Article 50 – that they voted to deploy less than two years ago.  (It is sometimes claimed that the Government could unilaterally revoke the article, but this would be dubious legally and impracticable politically.)  Every single Conservative MP voted to move Article 50, bar Ken Clarke – yes, including Dominic Grieve, Anna Soubry and all the rest of them.  So every Tory MP who votes for revocation, should the opportunity arise, will have to explain to their voters and Associations why they have changed their minds – in defiance, too, of the election manifesto on which they presumably stood.

You may counter that Herbert was only half-right – since not all those who want to take No Deal “off the table” want No Brexit.  Some, rather, want a different kind of Brexit to the one proposed in Theresa May’s deal – such as Norway Plus or Common Market 2.0 or whatever its supporters are calling it this morning.  Our columnist Henry Newman, writing on ConservativeHome today, says that the plan could “leave us as essentially as a non-voting member of the EU”.  Be that as it may, Norway Plus would none the less represent a form of Brexit – de jure if not de facto.  And it would be achieved via extension, not revocation.

But, if you think about it, extension would not actually take No Deal “off the table”.  It would merely set a new deadline for Brexit – and, therefore, leave open the possibility that Britain could still leave the EU with No Deal when it ends.  You may argue that the practical effect of extension would be to pave the way for revocation – and you might well be right: the proponents of Norway Plus, in the event of extension, risk losing out to the supporters of a Second Referendum.  None the less, the possibility of No Deal would still be there.  It would remain “on the table”.  Or, to put it another way, the table, like the proverbial can, would simply be kicked down the road.

Herbert concluded by asking his colleagues to agree that if they “want an orderly Brexit and to prevent no deal, is not the only course open to them to agree a deal?”  This now appears to be the direction that a big chunk of the European Research Group, including Jacob Rees-Mogg, is willing to take if (and it’s a very big if) meaningful change can be agreed to the Northern Ireland backstop.

At any rate, No Deal cannot be “taken off the table”.  As it was put recently, No Deal is the table – in other words, it’s a form of Brexit.  If MPs want to stop No Deal, they must take away the table they asked for – Brexit – and put another one its place: No Brexit.  They’re entitled to make the attempt, though such a move would dynamite what’s left of Theresa May’s negotiating strategy,and spit in the face of the verdict of the British people.   But can they please come clean about it?

Opining for the fjords

Norway-to-Canada was one thing. Norway-plus-the-backstop is another. It is inferior even to the Prime Minister’s proposed deal.

“It’s time to study the map that leads from Norway to Canada,” we wrote in October – having already given the scheme “conceived by George Yarrow, written by Rupert Darwall, produced by George Trefgarne and now choreographed by Nick Boles” a fair wind last summer.  This site trawled through the pluses and minuses of the proposal as best it could, urging Downing Street to drop its defunct Chequers Plan and study Norway-to-Canada as an alternative.

The scheme has since run on to the rocks – and this Norwegian group has divided – for three main reasons.  First, most Brexiteer MPs have been cool about the scheme at best and cold at worst.  Second, the Government set out to strangle it at birth: it is unlikely that Erna Solberg will have consistently poured icy water on the plan without Downing Street’s approval.  Finally, and more significantly still, the EU has discouraged it, since its preferred models are either Norway-plus-the-backstop or Canada-plus-the-backstop.

Rather than drop the plan, Boles has taken the only practicable route now available to him – namely, making a virtue of necessity, and swallowing Norway-plus-the-backstop, teaming up recently with Stephen Kinnock to promote it.  While we can see a case for Norway to Canada (or “Norway for Now”, as its supporters then called it) and some pluses from permanent EEA membership, we can’t see an upside from Norway-plus-the-backstop (or “Norway Plus”, as its backers now label it, though “Norway Minus” would be a better label, since the possibility of a permanent customs union arrangement is a negative, not a positive).

Its supporters sometimes argue that the backstop may fall away in time.  But since it therefore may not, the scheme is left in the same condition as Theresa May’s proposed deal in this regard.  In other crucial respects, it is inferior to it, since the Prime Minister’s plan would end freedom of movement and payments to EU budgets.  Norway Plus would deliver the latter – though some money would pass from the UK to the EU27 – but not the former.

On borders, the EEA Agreement allows for “safeguard measures” – the so-called “emergency brake” – and “limitations justified on grounds of public policy”.  We are not in a position to apply the former, given the fall in EU migration, and it would be a stretch to work the latter, which could be used to limit work permits, into fully-fledged control of borders.  On money, we’d presumably have to pay “EFTA grants” to the poorer EU states.  That might well cost less than payments into the EU budget – but these would still be payments none the less.

Debating these points leads inevitably to a bigger one.  Supporters of all the Norway variants tend to argue that the UK is leaving the EU, not the EEA – and that we can therefore simply take up our EEA rights.  Legally, they may be correct.  But we suspect that the determinant of whether we could take up the Norwegian plans in any form would be politics, not law.  And our columnist Henry Newman has a point when he suggests that the EEA states, whether EU members or not, believe that the UK is too big to be treated like Norway.

The long and short of it is that we would probably, under any kind of EEA and EFTA arrangement, have to draw up our own special deal – a separate UK “pillar”.  Negotiating it would throw up distinct problems.  Henry writes that the EU won’t want us to have Norway’ services deal, and that “others don’t want us out of the Fisheries Policy & CAP, nor under the EFTA Court & Surveillance Authority (rather than the European Court of Justice). While they are at it we will probably end up asked to pay more money.  Add these together and they could quickly take away any advantages of Norway Plus and move it towards non-voting EU membership in all but name.”

To be clear: on paper, pure EEA membership has some positives.  We would be outside the EU’s jurisdiction on fisheries, farming, criminal justice, foreign affairs, defence and immigration.  The scale of the EU acquis would be smaller.  Our role in shaping it wouldn’t end: while it is true that we would technically become a rule-taker, is an exaggeration to claim that, in practical terms, we would end up as a vassal state.

But Norway Plus is not undistilled EEA membership.  And the latter is unlikely to be on offer in any event.  None the less, the Boles proposal has one big advantage over that other option currently being pushed in the Commons – postponing and then reversing Brexit via a second referendum.  Norway in any form equals leaving the EU – technically, anyway.  It could not truthfully be claimed that Norway Plus would dishonour the referendum instruction, though it can certainly be argued that while it sticks to the letter it is wide of the spirit.

That may matter if – or perhaps we should say when – May’s deal goes down.  Remove from its opponents the minority of MPs who would tolerate or welcome no deal, and what remains looks like a potential majority for either a second referendum or for Norway Plus.  Given a choice between the two, we would plump for the latter.  But we firmly believe the Government can avoid having to make it, by opting instead for the managed no deal that a mass of Cabinet Ministers and leadership candidates are now preparing to push for.

Project Fear Three. Coming your way soon, courtesy of Downing Street?

Obama’s EU referendum intervention didn’t help deliver a Remain result for Cameron. It’s not clear that the Government has learned from the experience.

This time round, the audience will be different.  In 2016, it was voters.  Within less than a month, if all goes to plan, it will be Conservative MPs.  But the strategy is very much the same.  It is to utilise institutional and celebrity power to sell a Brexit deal, just as it was deployed to sell David Cameron’s renegotiation and a Remain vote, or to try.

The BBC has the details.  These contain names one would expect, such as Andy Street, the CBI, and City UK.  There are also people who might prove counter-productive, especially since Tory MPs would be the key demographic.  Anything that Leo Varadkar thinks is good for Ireland isn’t necessarily good for the United Kingdom – or at that’s what some Brexiteer MPs will think, anyway.  But he’s on the list, as is Andy Burnham, another name that won’t necessarily swing the J Alfred Prufrock MPs of this world.

Then there are other names that are more of a mystery.  Why would Team May expect Mark Littlewood and the IEA to line up behind any deal?  After all, their star recent signing, Shanker Singham, is opposed to customs union membership.  ConservativeHome also has its moment in the sun, since our columnist Henry Newman, the director of Open Europe, is also listed.  All in all, the document has the air of an early draft.  Number Ten is denying its authenticity altogether.  None the less, someone, somewhere has been very keen to leak it.

The flip side of the positives would be the negatives: in the event of a deal, Downing Street will hope that the above stress the downside of rejecting a deal – the uncertainties of No Deal.  It would in effect be co-ordinating Project Fear Three.  We all remember Project Fear One from the EU referendum.  We are currently seeing Project Fear Two, of which Project Fear Three would be an iteration.  The irony is that there is good reason to be concerned about No Deal.  But the boy may have cried “Wolf” at least once too often.

As the failure of Cameron’s plan indicates.  Its best-known face was Barack Obama, deputed to say that, in the event of a Brexit vote, Britain would go to “the back of queue” for any trade deal with America.  “The purveyors of the conventional wisdom decreed that it could be a knockout blow for the Leave campaign.  And yet it was not,” writes Tim Shipman in All Out War.  At Vote Leave headquarters, Dominic Cummings “walked into the main campaign war room and announced: ‘This will have no effect’ “.  He was right.

Intriguingly, the leaked document’s timetable is much the same as that we tentatively anticipated on Monday – ” ‘A moment of decisive progress’ will be announced this Thursday. Raab to announce,” it declares.  (Historical footnote: that’s the same Dominic Raab who said, in the wake of Obama’s intervention, that “I don’t think the British people will be blackmailed by a lame duck US President”.)

Number Ten would do better to put any deal that the Cabinet agrees to Conservative MPs straight-up, without any varnish.  An early reading of America’s mid-term elections results, coming in as we write, is that the Republicans have done better than expected.  Donald Trump’s staying power is a reminder that the era of New Labour-type spin is dead and buried.