It almost works

Were it not for the backstop, May’s deal would get over the line – with support from an overwhelming majority of Conservatives, including us.

Imagine for a moment that, at some point before Christmas or in the New Year, the backstop was radically amended – that a unilateral exit mechanism were to be slapped on to it.  Then go on to picture the following events.  The revised deal passes through Parliament, and there is no early general election.  And at the end of transition in 2020, a decision is taken about whether or not to extend it. Let’s presume that at this point it is indeed lengthened for, say, six months.  At this point, the backstop duly kicks in.  Then, at the beginning of 2022, the Government leaves the backstop, just in time for the general election of later that year.

During this sequence of events, the first substantial objection to the backstop – that we aren’t free to leave it – would have fallen away this very winter.  The second complaint – that the backstop places a regulatory border in the Irish sea and, given the presence of a backstop within a backstop in the text of the Withdrawal Agreement, a potential customs border too – would last for a mere sixth months or so.  Then the division that it causes within the United Kingdom would end.

From that point, the Government would have the freedom to leave the continuing customs union, and negotiate, sign and effect meaningful trade deals.  For example, the way would be open for it to pursue one with the United States, if it wished: the American Government has made it clear that any such arrangement will be restricted if the backstop is in place.  More broadly, the gains for Britain from May’s deal would at this point no longer be outweighed by the losses.

Let us remind ourselves what these wins would be.  As we wrote in our analysis of the deal after it was agreed, we would regain control of our borders, under its proposed terms, after the end of the transition period, extended or unextended.  Free movement would be no more.  We would also regain control of money.  We would almost certainly want to pay up for participation in specific European programmes.  But automatic payments into the EU budget would come to an end.  A Prime Minister Johnson would be able to tip the entire sum down the gaping maw of the NHS if Parliament so agreed.

There would be a role for the European Court of Justice in relation to EU nationals for eight years.  An arbitration panel would refer points of EU law to the Court, and there is a good case for saying that the panel would then be bound by its rulings.  But it is important not to confuse disputes about the meaning of EU law with those between the UK and the EU more broadly.  These would be resolved by a dispute resolution process.  Meanwhile, the Withdrawal Agreement’s legal underpinning for the backstop would become otiose when the backstop ended.

In short, Theresa May won on borders and money in the negotiation, and minimised the ECJ’s scope on laws, which could reasonably be scored as a points win.  She has won almost no credit for this achievement, first, because she has no media allies or strong public backing, but faces formidable opposition from both second referendum Remainers and UKIP-type Leavers; second, because U-turns and broken pledges elsewhere have bust her credibility and third, of course, because of the backstop.

There is another, big, structural gain from her deal.  Under its terms, we would be tied to developing EU acquis on state aid and competition.  However, we would not be so bound elsewhere – for example, in social or environmental matters.  Some EU27 countries are worried that British governments will be able to undercut their social model in future.  So under the deal’s terms, we will gain freedom of movement for goods – up to a point – without conceding freedom of movement for peoples.  The four freedoms have been prised apart.

Now, there are powerful objections to this rosy scenario.  Frictionless entry to EU for British goods will doubtless be bargained off against permissive entry to the UK for EU citizens, and to British waters for EU fishermen.  Guarantees in the Political Declaration rather than the Withdrawal Agreement lack legal bite.  Even were a unilateral exit to be negotiated from the backstop, we would still have agreed to pay the £39 billion or more agreed under the terms of the agreement – thus reducing our bargaining power during trade negotiations.  Essentially, the EU wants a high-alignment, high-access settlement, and so does our Treasury-led Government.

And the strongest case against our imaginary dropping of a permanent backstop is that it simply isn’t on the table: that the EU will not shaft a remaining member, Ireland, for the sake of a departing one, the UK, as this morning’s news confirms.  We concede the point at once.  Were Leo Varadkar not determined to take a high-risk gamble that the UK/Ireland land border will end up no harder than now – and had the Government rumbled him earlier and treated Ireland more attentively – matters might not have reached this pass.  Still, we are where we are.  This Prime Minister is most unlikely to win any worthwhile backstop concession in the New Year.

Why sketch out this scenario at all, then, if it almost certainly won’t happen?  The answer is: to make a point well worth making – namely, that only a single obstacle prevents May from winning the backing of her Party for her deal.  Most of the hostility to it would collapse were there a uniteral exit mechanism.  The list of objectors would then shrink from the 71 we clocked to a much smaller number: fewer than 20, at a guess.  Most would swallow a limited role for the ECJ, and reject the other objections that we have listed.

Sure, they would say, the EU will seek to gain entry for their citizens and fishermen.  But it would have no automatic right to either – and that’s what the referendum was all about, wasn’t it? – taking back control.  Yes, we would have lose some bargaining power by agreeing to part with £39 billion.  None the less, we would retain some too, because of our power to refuse access to our country and waters.  All in all, a reformed backstop would be allow the Conservatives and Labour to square off against each other on EU policy in future elections.

For were the UK free of the backstop come 2022, the Tory election manifesto would reflect its Eurosceptic centre of gravity, by proposing a Canada-type policy for future trade talks.  Labour’s, meanwhile, would be more Norwegian in flavour.  These two visions would then compete at the polls – at least to the degree that both parties, and voters, wanted to fix their attention on the future of Brexit.

As we say, this won’t happen – at least under this Prime Minister.  Her deal and the backstop march together in step.  And admittedly, even with a right to unilateral exit, this Government would be likely to exercise it if no deal waited on the other side of the door.

None the less, that exit would be there – which, ultimately, is what matters.  We’ve said before that Brexit isn’t a still photo, but a moving film – or should be.  Where Britain will be on day one isn’t where we will be in year ten.  The backstop freezes that film and prevents it from playing.  Provide a sure means of escape from it, and the film begins to roll.  And May’s deal thus becomes acceptable.

Unfortunately, there is vanishingly little prospect of that.  The backstop lies between her and success like a hollow in the path of a runner.  It is so narrow as almost to be leapable. But it plunges many, many miles deep.

Get ready to play May’s Chicken Game again before too long

“Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.”

The Prime Minister’s options post-Christmas and the New Year are as follows

  • Resign. Very unlikely indeed.  She has a dogged sense of duty – and our reading is that in her view this equals staying on in post if at all possible.
  • Seek a general election. Also very unlikely, if only because a majority of Conservative MPs are completely against it.
  • Pivot to Norway Plus.  Possible.  But it would split her Party and looks unlikely to make it through the Commons in any event. In any event, she is resistant to it.
  • Pivot to a second referendum. Possible. On the one hand, there seems to be a Commons drift towards it – though no majority for it.  On the other, it would split her Party deeper. And again, she is resistant to it.
  • Prepare properly for No Deal.  Possible. And it is the policy and legislative default setting. But she evidently doesn’t want it and the Commons doesn’t either.
  • Wind the clock down, keep presenting her deal with new amendments, and seek to panic the Commons by suggesting: it’s this or the no deal default“Once you eliminate the impossible…”

As we wrote earlier this week, the most persuasive explanation of all is that the Prime Minister now has no plan at all, and staggers on from day to day, simply looking to survive.

But in so far as she has a strategy, that last option is the most plausible – and is perhaps one that she is stumbling into, at least as much by accident as by design.

She will have to move carefully, balancing the strategic loss of authority inflicted on her by the confidence vote result with the tactical gain of freedom from challenge for a year.

Is she chicken; chickening out on Brexit; or else being drawn into a game of chicken with the Commons over her deal, we asked?  We suspect the last.  Remember: the real deal deadline is March 28 – not January 21.

Chicken May

Is she chickening out on Brexit? Or playing chicken with Commons and Party over her deal? Or merely a headless chicken herself – bent on daily survival?

What now is Theresa May’s plan, this morning after the day before?  The simplest explanations are often the most convincing.  In her case, this is: she no longer has one.  Her ambitions for country, party and self have shrunk to seeing each day out.  The most primal of human instincts has taken over, more urgent even than the drives to sex and food: simply to survive. Clinging to office fills her horizon.  She shuffles on into a void.  The will to power has left her a ghost.  Perhaps that is all that can be said.

But there are two other potential answers, assuming that she is not brooding on a general election or preparing to resign – a move that would be out of character for a woman who appears to equate being Prime Minister, whatever the circumstances, with doing her duty.  These explanations are worth probing because, with the future of country, Party and Brexit at stake, Conservative MPs, activists and others must work every faculty to read the signs of the times accurately, and then act promptly.

The first is that she has already decided to postpone Brexit, seek a second referendum, or both.  This take has it that she knows very well that her deal will not be substantially improved by the EU; that it therefore cannot pass through Parliament; that the Remain-friendly Commons will shortly bid for control of its proceedings and timetable – and that she will then, a confidence vote from her Parliamentary Party notwithstanding, give way.  No deal is better than a bad deal has been supplanted by any deal is better than no deal.

Like an empty boat being pushed by the tide, she will drift along with the five-sixths or so of MPs who see a no deal Brexit as the ultimate political evil.  Perhaps the Commons will somehow pull for Norway Plus instead; more likely, it won’t.  It was worth watching which Cabinet heads nodded on her own front bench yesterday when she reiterated the Government’s present stance on a second referendum – and which didn’t.  Greg Clark’s didn’t so much as twitch.  David Lidington and David Gauke are also reported to be ready for a U-turn.

As for that policy – opposition to another referendum – how sure is it?  Indeed, what faith can we place in any commitment that May makes on Brexit, or indeed on anything else?  She promised that she wouldn’t call an election last year; that her Brexit policy would be based on “a comprehensive system of mutual recognition”; that migration would be controlled during transition; that transition wouldn’t be extended; that she would oppose new regulatory barriers in the Irish sea. Ministers were told last year that the backstop had no legal effect.

Politics is a rough old trade, and bending the truth is, as elsewhere in life, part of it.  But even by the standards of Westminster, the Prime Minister’s breaches are brazen.  Leave aside as debatable those manifesto commitments on the Customs Union, the ECJ and the Single Market, and look at the events of recent days.  May said that the EU would not offer us a better deal if the present draft is rejected.  Now she suggests that it can be improved after all, not ruling out changes to the Withdrawal Agreement itself yesterday.

Stephen Barclay and Gove were sent out – the latter only yesterday morning – to assure the public that the meaningful vote would go ahead.  As late as 11am, the Prime Minister’s spokesman was insisting that this was so, even as Cabinet Ministers were briefing that it wasn’t.  Small details like these have big consequences.  Near the core of May’s problem in selling her deal to MPs is that too many of them have simply lost trust in her.  Some no longer believe assurances even when they are accurate – say, on future divergence.

The second interpretation of the Prime Minister’s thinking is completely different.  We advance it with some hesitation, because it may represent less a scheme crafted deliberately than one stumbled upon by accident.  The sum of her statement yesterday was that the meaningful vote is postponed.  She gave no indication whatsoever of when it will be brought back.  In reply to Justine Greening, she suggested that the Government is obliged to hold it by January 21.  Later that day, that was flatly contradicted by the Commons authorities.

Under their interpretation, May’s real deadline is March 28, since the Commons must ratify any amended deal reached with the EU no later than that date.  This could open up an opportunity for the Prime Minister to play a risky game of chicken with our EU interlocuters, the Commons and the Party.  For the later the meaningful vote takes place, the more sharply a no deal Brexit will loom.  This might open up an option for her: don’t rush for a settlement pre-Christmas, but spin out the talks instead – thus ramping up pressure on MPs.

It is possible to think May now believes that, under that pressure, the EU will fold next year, and offer a time limit or a unilateral exit from the backstop.  Or that she is concluding the Commons would collapse, even if the EU did not – that, with March 28 and no deal immiment, Labour would buckle and abstain, together with other opposition parties.  Or that even if Jeremy Corbyn did not, some Labour MPs would.  Meanwhile, Conservative opponents could be steered into the abstention column, and Tory abstainers into the aye lobby.

Now, this scenario makes many assumptions: that the Prime Minister will still be in place; that there is no Cabinet revolt; that the Commons has not, by the New Year, wrested control from the Government altogether; that MPs do not (if May seeks to spin out her dealings with the EU) revolt, propose the postponement of Article 50 and perhaps a second referendum, and then see her back down; that the Prime Minister has not been censured, or the Government no confidenced.

But one can also see how the truth could be found here – that May is not so much a headless chicken herself, or seeking to chicken out of Brexit but, rather, now sees before her this game of chicken unfolding as next year unfolds.  It would have one immeasurable plus from her point of view.  It would if successful be a win.  Her deal would have triumphed.  She would have crushed her internal opponents – hard Brexiteers, Norwegians, second referendum supporters: the lot.  The stage would be set for her to go on and on and on towards 2022.

So, back to the present. The wolf has cried 48 letters many times.  It may be that, unlike the animal in the fable, it never comes: that waiting for those letters is like waiting for Godot.  The next 24 hours or so may represent the last chance before the New Year for Tory MPs to act.  Some may do so, convinced that the Prime Minister is beyond rescue.  Others may waver still, terrified of the effect of a leadership challenge on what’s left of the negotiation, or unconvinced by May’s potential replacements.

Our bottom line is that the referendum result must be delivered.  If pro-Brexit MPs believe May is now set on a chicken game, they may stay their hand.  If they conclude that she is set on abandoning Brexit, they won’t and shouldn’t.  On Sunday, we recommended that Tory MPs should send in letters if no substantial change to the backstop emerges this week.  Perhaps the most reliable guide should be what could be called the Greg Hands test – namely, to send in those letters if real preparations for no deal aren’t announced before the weekend.

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.

Why Conservative MPs should prepare to call for a confidence vote in the Prime Minister’s leadership this week

A new leader will be a surer means of delivering Brexit if she can’t extract last-minute backstop concessions.

It may now not be possible for the Government to postpone Tuesday’s evening’s coming vote on Theresa May’s Brexit deal.  Or the Speaker – that friend of Labour and enemy of Brexit – may somehow block any such move.  Or Downing Street may find some face-saving amendment that minimises the scale of defeat.

But whatever happens, the Prime Minister has a last chance this week to amend the element of the deal that makes it unacceptable: the backstop.  So whether or not the vote takes place, she must push the EU in Brussels on Thursday for a unilateral right of exit or a time limit.

We have no confidence that such a manoeuvre will succeed if executed by her at this stage.  It could just be that, confronted by the prospect of a disorderly Brexit on its north-west frontier, the EU gives way.  But it is far more likely to stand firm, hoping – with reason – that May will then lose control of the Commons altogether, which will then push for the postponement of Article 50 and a second referendum, to which pressure she will yield.  The European Court is primed to pave the way for this development on Monday.  Furthermore, backing down on the backstop would mean the EU27 deserting one of its own, the country which has been the biggest winner in the negotiation to date: Ireland.

The Prime Minister would then have three policy options: that second referendum, Norway-plus-the-backstop and no deal.  Since she opposes all of them, the logic of the impasse would point to resignation.  But we read May as believing that it would be her duty as a public servant to carry on.  And what seems to animate her most is a fear of no deal – an outcome which the Government has had a duty to prepare for, which it has failed properly to do.

She would therefore bend either to cross-party pressure for the Norway scheme, or for that second referendum – thereby spitting in the face of the biggest-ever vote in British electoral history, breaking her own manifesto commitments, and crafting a narrative of betrayal that threatens frightening consequences for the country.  Even if she doesn’t do all this, however, the point at which she provided effective leadership and credible negotiating is past, if the backstop can’t be altered this week.

Conservative MPs will therefore have no alternative, if she can’t extract that last-minute change, but to write to Graham Brady seeking a vote of confidence in May’s leadership.  Cabinet members are preparing for this development already: today’s papers are packed with details of fledgling leadership campaigns, and Amber Rudd has already broken with Downing Street by supporting a Plan B (Norway-plus-the-backstop) if Plan A fails.

The way would thus be open for candidates supporting a second referendum, the Norway scheme or no deal to MPs and Party members.  We suspect that the eventual outcome would favour that last option.  The new Prime Minister would then face a titanic struggle between the Conservative manifesto position, reinforced by Party members, and those MPs determined to flout the referendum mandate.  His or her message to Commons and the country would be: the government I lead will deliver the referendum result.  If you want to thwart me, the only means available to you will be a vote of no confidence.

Ultimately, the argument for this course is that the alternative is even worse.  May’s threat of a Corbyn Government before Christmas is evidence of her desperation and – unless the EU somehow saves her – ruin.  For the DUP has made it clear that it will only abandon the Conservatives if her deal passes the Commons, not if it fails.

Why the EEA Model is worse than the Prime Minister’s deal

As Parliament debates the Withdrawal Agreement, there have been calls for the UK to continue its membership of the European Economic Area (“EEA”) as an interim step before progressing to a more usual free trade agreement arrangement.  This has been called ‘Norway then Canada’. It is also now emerging as a potential Plan B in […]

The post Why the EEA Model is worse than the Prime Minister’s deal appeared first on BrexitCentral.

As Parliament debates the Withdrawal Agreement, there have been calls for the UK to continue its membership of the European Economic Area (“EEA”) as an interim step before progressing to a more usual free trade agreement arrangement.  This has been called ‘Norway then Canada’. It is also now emerging as a potential Plan B in case the Prime Minister’s (PM) deal fails in the Commons. We first look at the mechanics by which continued EEA membership might be achieved, and then go on to describe the reasons why remaining as a member of the EEA even for a short period would be damaging to the UK. Far from being a compromise, the EEA option even without the Customs Union attachment (the plus of Norway plus) is even more restrictive for the UK than the PM’s deal.  

Liam Fox testified to this effect in the International Trade Committee on December 5th where he stated that “In many ways it closer to EU membership than the agreement being put forward today. I find it unbelievable that those who can’t agree with the current agreement put forward by the government would want EEA or EFTA status.”

There are three variations to the EEA model:

    • Not joining the European Free Trade Association (EFTA) and ‘continuing’ as party to the EEA Agreement
    • Joining EFTA, and then becoming party to the EEA Agreement as an EFTA member
    • Joining EFTA as an Associate Member and then becoming an EFTA party to the EEA Agreement.

The EU would still claim all of these options require the UK to remain in a customs union with the EU to avoid a ‘hard border’ in Ireland.

All of these options require other parties to concede to the UK’s actions, whether in joining EFTA, or renegotiating the EEA agreement.

But time is running out for these negotiations and there is currently little evidence of political will.

Variation one (non-EFTA) can be discarded as the EEA Agreement is explicit about only applying to EFTA or EU members.  This is not easily altered as it is built into the ‘institutional provisions’ of the EEA Agreement. The EU could still claim there needs to be a backstop in the event that the UK eventually leaves to pursue a ‘Canada +’ deal.  

Variation two precludes membership of the Customs Union, as EFTA members must apply to become party to all EFTA Free Trade Agreements (FTA). Article 50 does not give the EU competence to negotiate this with an existing member state. Britain would need to leave the bloc first.

Variation three would require a renegotiation of the EFTA convention, and it would not be guaranteed that a new ‘associate member’ would be allowed into the EEA by the EU. As with option two, Britain would need to leave the EU and then negotiate this.

Even if the legal and political difficulties could be surmounted, all of these options simply delay the process of leaving, creating additional work in the interim for businesses, without dealing with uncertainty over the final arrangements.  The difficulty of leaving current arrangements demonstrates how challenging it would be to move out of EEA membership once in.

Once in, there are also further difficulties:

  • The UK would be unable to end free movement.
  • The UK would not have regulatory autonomy, and this would make any serious trade policy with countries like the US, or Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) accession impossible. This is because the UK would be unlikely to commit to the regulatory provisions of CPTPP given we would not have control over our regulatory system, and any deal with the US would fall at the first hurdle because we would not be able to offer regulatory concessions; especially on goods and agriculture.

 

Part 1 – Getting in

  • The Proposal

This proposal appears to be a rebrand of an idea promoted by some MPs in spring this year: joining EFTA in order to accede to the EEA Agreement. The re-brand proposes that joining EFTA and remaining in the EEA for a time could replace the “implementation period” under the Withdrawal Agreement currently being negotiated by the EU and the UK.  It would enable the UK to negotiate and transition to a more usual state to state free trade agreement with the EU, often called “Canada +”. Variations on this theme include not joining EFTA because our membership of the EEA Agreement will continue as we are a contracting party in our own right, and becoming an ‘associate member’ of EFTA.

EFTA membership (currently comprising Norway, Iceland, Switzerland, and Liechtenstein) does not by itself give continued preferential single market access.  EFTA is a free trade agreement between its parties. The link with the EU for EFTA countries requires signing the European Economic Area (EEA) Agreement, as Norway, Iceland and Liechtenstein have, or negotiating separate bilateral deals as Switzerland has done. For the purposes of this briefing we will concentrate on the EEA route, which its proponents consider to be an off the shelf route to achieving continuity and frictionless trade, as we continue our negotiation for a bespoke free trade agreement.  

 

  • Option 1 – Remaining in the EEA

First, let’s address the variation under which we simply rely on being a member of the EEA Agreement at present and do not give notice to withdraw.  This assumes that because we are named as a party to the agreement, the rights and obligations under the agreement must continue whether or not we are a member of the EU or EFTA.  Given the wording of the EEA Agreement, it is clear that this is not the case. It is specifically stated to apply only to the territories of the EU and the EFTA parties, known as the two pillars – the EU pillar and the EFTA pillar. The provisions that deal with managing and decision making under the agreement, the so-called “institutional provisions” are expressly designed to create a balance between the EU pillar and the EFTA pillar. The EFTA Secretariat is of the view that these provisions would not allow the UK to continue as a functioning EEA party in its own right.  In its FAQs on its website it states the following:

Article 126 of the Agreement on the EEA makes it clear that the EEA Agreement only applies to the territories of the EU, in addition to Iceland, Liechtenstein and Norway. Under the present wording of the EEA Agreement, it is therefore impossible to be a party to the EEA Agreement without being a member of either the EU or EFTA.

Even if the UK government were to change course and seek to claim that the UK’s membership of the EEA Agreement continues unabated by having left the EU, if the other parties don’t agree we would be caught up in protracted negotiation and even potentially litigation.  Given the current state of negotiations, such a change of course would not, one imagines, be popular with the EU and EFTA members.

 

  • Option 2 – Joining EFTA

So why not join EFTA and then accede to the EEA Agreement in the normal course?  This is not an off the shelf model. Membership of these agreements is not available as of right.  It must be applied for and conditions must be met. Although both EFTA and EEA membership can be terminated on 12 months’ notice, neither envisage temporary membership (other than in order to move from EEA membership into full membership of the EU).   It is highly questionable that the four EFTA members, all of whom would have to agree the UK’s accession to EFTA, and then the 27 EU member states who would have to agree the UK joining the EFTA group of the EEA Agreement, would agree such a disruptive process and time consuming negotiation in the knowledge that it would only apply for a period of two or three years.  A more recent iteration of the Norway then Canada model proposed by MP Nick Boles concedes this and proposes that the UK would agree not to exercise its right to terminate EEA membership “while the EU is working in good faith to conclude a new set of agreements that preserve in perpetuity no hard border on the island of Ireland”.  The prospect of ever leaving the EEA in that scenario seems vanishingly small, given that the effort to guarantee no hard border in perpetuity is exactly what has led us to the current impasse as the EU claims there is no way to achieve this without Northern Ireland remaining in its customs union and internal market for goods.

In any event there is not enough time to negotiate EFTA membership and transition to the EEA pillar of the EEA Agreement before 29th March 2019. This would require new negotiation guidelines to be agreed by the EU27 and ratification, by the UK, all the EFTA states, and all EU Member States. Relevant schedules and governance arrangements would all have to be renegotiated if the UK wished to be able to have any special arrangements to reflect our circumstances, for Gibraltar, for example or for the needs of financial services or other sectors.    Even if there were the political will to do so (which seems unlikely for a time limited arrangement), in practical terms the process could not be completed to take effect as a transition. The prime minister of Norway has already indicated that the interim membership approach would not be welcomed by the exiting members, noting that “to enter into an organisation you are preparing to leave at the same time is also a little bit difficult for the rest of us”.

There is a more serious obstacle before any such negotiations could even be contemplated.  The EU’s position is that it cannot negotiate such agreements with an existing member state, as Article 50 does not give sufficient competence and the other relevant provisions of the EU treaties do not cover negotiations with current EU members.  Many commentators consider that the boundaries of article 50 have already been strained beyond its limits by including in the Withdrawal Agreement an ongoing customs union and single market arrangement for Northern Ireland, and even more extending this to the whole of the UK, even on a temporary basis, and even as a backstop.  It would be very difficult for the EU to stretch this further and re-negotiate the EEA Agreement under Article 50 and doing so would almost inevitably be subject to legal challenge, making it risky and uncertain.

This means that to join the EEA, the UK would have to leave the EU with no deal in March 2019 and continue negotiations for the future relationship.  This takes away a large part of the claimed benefits of the EFTA/EEA model, as the disruption from leaving with no deal would already have happened and it would be more sensible at that point to focus on bilateral negotiations with the EU and wider trade policy.

The other critical reason why the EEA route does not resolve the current impasse is that whether it is temporary, permanent or indefinite, an EFTA/ EEA arrangement does not resolve the issues that the EU has raised in respect of the Irish border. EEA membership does not comprise, and in fact being an EFTA member precludes, membership of a customs union, so there would still be customs formalities for cross border trade between Ireland and Northern Ireland.  The Norway Plus proposal which includes a Customs Union removes all independent trade and regulatory policy.

The solution in the draft Withdrawal Agreement includes the whole of the UK remaining in a customs union with the EU. This is incompatible with the EFTA Convention, which prohibits customs duties and quantitative restrictions between members (which the UK could not commit to if it were bound to the EU’s tariffs, quotas and trade remedies) and binds acceding members to apply to become party to FTAs concluded by EFTA Members. The UK would not be able to do this if in a customs union with the EU, it could only enter into FTAs with countries that the EU has FTAs with, and only on the terms agreed by the EU.

 

  • Option 3 – Associate EFTA membership

It has also been suggested that we could work around the need to be an EFTA member to join the EEA Agreement in the EFTA pillar by becoming an “associate member” of EFTA.  This would presumably be intended to allow the UK to be in a customs union with the EU but still an EFTA member for the sake of EEA Agreement formalities. Let us be clear that there is no such thing as associate membership of EFTA.  The EFTA Convention provides for the creation of an association between EFTA and any other country or body in agreement with reciprocal rights and obligations, common actions and procedures.  This is not a form of membership.  It would be open to the EFTA members and the UK to create a form of associate membership if they wished, but this would be a matter of negotiation between them, requiring amendment to the EFTA Convention and they would not be able to compel the EU to recognise such associate status as qualifying for the EFTA Pillar of the EEA Agreement as of right.

While we know that it is in fact possible to attend to these matters without physical infrastructure or the routine interventions at the border, this has not been accepted by the EU side to date. An EFTA/EEA solution does not appear any more viable for the whole UK than a normal (“Canada-style”) FTA is, given the EU’s current negotiating position. The EU’s insistence on the backstop as a commitment that would apply in perpetuity  means that even EEA membership and a customs union would not remove the perceived need for the backstop: the EU would wish to be able to trigger the protections they consider necessary for the Irish border if in the future the UK gives notice to leave the EEA or customs union, or both, and the EU side does not consider that the border arrangements meet its requirements.

Even if it were politically and practically deliverable, the Norway then Canada proposal would make life harder, not easier, for business. It would mean another system they would need to understand, in between EU membership now and fully leaving EU regulation, later.  This would suggest that, even if the EU were satisfied on the Irish border, the eventual move out of the ‘Norway phase’ would be met with as much resistance as leaving the EU is encountering at present, and would in fact never happen. The same cliff edge arguments would be made by the CBI and others if we were ever to choose to leave the EEA, and the political forces in the UK would conspire to ensure that the UK did not trigger the notification provisions.  Once in, it is extremely unlikely that we would leave, especially since being in would eliminate our independent trade and regulatory policy completely so none of the benefits of Brexit could be realised.

Continuity EEA Membership in own right EFTA Pillar UK bespoke EEA Membership EFTA Associate Membership
Is it Available No Yes No No
Is it Negotiable No Possible, but only if not in customs union and likely with with major concessions, for example on fisheries Unlikely Unlikely
Is there Time No No No No

 

Part 2 – Why would we want to be in?

 

  • Control of Laws

What is the EEA? Well according to the EEA Agreement itself, it is an association formed to “promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area”

Already we can see some big clues as to why continuing to be part of this arrangement would not achieve the objective of taking back control of laws, and why, even if intended to be for a short period, it would be damaging to the UK’s interests.  In order to achieve the “same rules” and “homogeneous” conditions, the EEA Agreement provides for the EU to harmonise laws in in-scope fields with the EFTA EEA members. This is monitored by the EFTA Surveillance Authority and enforced through the EFTA Court, which broadly follows the rulings of the European Court of Justice.

EFTA EEA members have to adopt EU laws that are marked as “text with EEA relevance” into their laws.  This is not optional – there is no veto and they have no vote in the European Council or Parliament. Norway’s prime minister has said clearly “We do accept that decisions on the four freedoms are done in Brussels”. It is often claimed that the EFTA EEA countries can shape and influence EU laws as they are consulted at an early stage in the law-making process.  Although the EEA Agreement provides for consultation and communication at the early stages of formulating single market legislation, in practice, as described by the European Parliament, EFTA countries “have little influence on the final decision on the legislation on the EU side”. If an EFTA EEA country does not implement an in-scope EU rule into their law, the EU will take action against them, as Norway found out when it tried to get out of implementing a directive on postal services and was threatened with losing market access for its fisheries products.  As a result, the right of reservation in the EEA Agreement has never been used, and is, in essence, a theoretical construct that allows EFTA EEA states to respect their constitutions and claim that democracy is respected.

This illustrates the severe immediate political costs of even temporary EEA membership without a known end date (which as explained in Part 1 is unlikely to be negotiable so indefinite membership is the more likely scenario, which is of course even worse). Think about how this would work in the context of issues that are important to the UK economy.  EU financial services regulations are “text with EEA relevance” so EFTA EAA members are obliged to implement them. We know that the stated aims of many EU member states to win business away from the UK, and we know that the direction of travel of EU rules in financial services has been towards greater levels of intervention and integration, often in ways that have been detrimental to the UK even while we were a member. So, imagine what EU member states could do with regulation in this area to undermine the competitiveness of the UK market, knowing that the UK us obliged to accept it, with no real voice in the process.  Solvency III? MiFID III? And if our Parliament were to resist, the EU would be able to respond by withdrawing market access not just in financial services, but in unrelated fields like food or automotive. This is why firms and industry bodies in the City have moved on from prioritising passporting rights in the single market. Groups like UK Finance and the CityUK realise that the risks from being regulated from Brussels with no vote or voice is worse for the future of financial services in this country than the loss of passporting rights.

 

  • Control of Borders

Another issue that is of vital interest to the British people is immigration.  Free movement of workers is a fundamental part of the EEA Agreement and EFTA EEA members are subject to all the EU legislation supporting it.  It is unrealistic to suggest that a Lichtenstein-style immigration control could be agreed, or that the UK government could simply make better use of the controls on free movement that are already available.  The movement of workers safeguards are designed to apply in emergency situations. Liechtenstein was able to negotiate an enduring safeguard due to its unique position with a tiny population and mainly rural geography.  It was made clear to David Cameron during his attempted renegotiation before the referendum that the EU does not consider that the UK is encountering any difficulties that would justify deploying such emergency measures.  It is also clear that the existing controls that allow member states to remove immigrants from EEA countries who do not meet the criteria of being a worker or economically self-sufficient cannot be effectively used by the UK unless we introduce registration and identity systems (which would have to be for UK nationals as well as immigrants, otherwise they would be discriminatory) and make access to welfare benefits and healthcare much more rigorous.  These would be serious changes to the way we run the country and, in many respects, would operate directly against the concerns of many voters.

 

  • The Policy Implications

The UK cannot cherry pick its model as a member of the EEA.  The foundational principle of the EEA and its institutions is homogeneity of regulations and their application across the single market.  And the direction of travel is towards more areas becoming more integrated. Iceland’s finance minister recently said “Those that are for integration are stepping up the pace and if that is realised there will be even less tolerance for special implementation in the European Economic Area”. Carving out special treatment for sectors or to deal with movement of workers would mean seeking to reverse this and undermine the principle of homogeneity.  Why would the 30 EEA members agree to unbalancing their relationship and destabilising established structures for the UK, especially if they think we will leave in a couple of years?

The impact of EEA membership on financial services and immigration alone should kill it stone dead (even if the basic argument for democracy and accountability in who makes our laws, and how, are not sufficiently persuasive).  Even if the supporters of this model are right that these matters could be satisfactorily negotiated, for example to give UK regulators a voice in financial services regulation, or by allowing the UK a Liechtenstein-style ‘brake’ to cap immigration, there is no way that they could be negotiated in time to take effect on 30 March 2019. But there’s more – what about the impact on the UK’s international trade policy, which the government still claims to want?

If not combined with a customs union, as an EFTA EEA member the UK would be technically able to negotiate free trade agreements in the way that EFTA members do, either individually or as a bloc.  But the FTAs that EFTA countries have are not the kind of comprehensive and truly progressive deals that the UK would be looking for, in particular addressing services and regulatory barriers, because these matters would remain subject to EU laws so could not be negotiated by the UK with other countries. All of the reasons why the EU and the USA were unable to progress the proposed FTA between them (the TTIP) would still apply, and the UK would be even less able to work through them, so a UK/US FTA, one of the great opportunities from Brexit, would be unobtainable.  If we do not have control of our regulatory system, we could not in good faith sign up to the provisions of the CPTPP on regulatory coherence, and the CPTPP countries would not want to have a member that was unable to engage in deeper liberalisation among members including regulatory recognition. Over this we would have no control. UK accession would be like asking CPTPP members to allow the UK trojan horse to smuggle the EU rule book into the CPTPP, something none of its members would want. Even the Japanese, perhaps the most vocal proponent of UK CPTPP accession, partly on the basis that this would encourage the Americans to come back to the table, will understand that allowing the UK in on this basis would repel rather than attract the US.

 

Conclusion

The EEA option will be hard to get into and likely harder still to leave. The Norway phase would also have to be combined with either a customs union, or facilitations for the Irish border that the EU has as yet refused to accept. Such a mechanism would end any pretence of the UK having an independent trade and regulatory policy.  Once inside, the EEA Agreement would prevent the UK from exercising control over its borders and would give control of important areas of lawmaking in services to the EU without the UK having a vote or real influence. The proposal also does not remove the need for a backstop in the future, should the UK seek to leave, furthering the chances that it becomes an accidental end state. This is unlikely to be politically acceptable, given that the EEA has already been rejected as an end point by the Prime Minister due to concerns over the free movement of people and by the City due to the potential for new regulations to disadvantage our financial services industry.  It would more completely take independent trade and regulatory policy off the table than even the PM’s deal. When we referred to the PM’s deal as the worst of all worlds, we did not anticipate that an even worse construct could be seriously being proposed.

The post Why the EEA Model is worse than the Prime Minister’s deal appeared first on BrexitCentral.

Interview. As May’s defeat looms, Johnson sketches a manifesto: “People want to see a bit of gumption and a bit of leadership”

He expects her plan to be voted down on Tuesday, calls for a renegotiation which she could not conceivably lead – and rules out Norway Plus.

Boris Johnson expects Theresa May to be defeated in next Tuesday’s vote and in this interview lays out what he thinks should happen next.

Although the former Foreign Secretary does not call on her to stand down if she loses, his remarks are bound to be seen as his manifesto for the leadership race which would ensue were she to do so.

And the approach he advocates to Brexit is so completely at odds with hers that it is impossible to see how she could follow it.

Even if her proposed Withdrawal Deal is rejected by only a single vote, he wants it thrown out. Johnson claims that last December he was misled by the Prime Minister and Gavin Barwell, “in total bad faith”, that no real concessions were being made on the crucial question of the Northern Ireland backstop.

He also rules out throwing his weight behind the Norway option, saying that ‘the EEA just doesn’t work for us. The problem with it is that you’re even more of a rules taker than you are under this deal”.

Instead of either it or EEA membership, he wants a “generous, optimistic, energetic” renegotiation which has “a big free trade agreement at the heart of it it” and gets rid of the backstop.

Until these objectives have been attained, British negotiators must refuse to hand over £39 billion to Brussels, and must show they are not afraid of going to World Trade Organisation rules should that prove necessary:

“I don’t want to pretend to the public there would be no disruption at all. I don’t want to pretend there would be no challenges at all. But what people I think want to see is a bit of gumption from this country and a bit of willingness to tackle those problems, and a bit of leadership. And I think people are fed up of being told their country can’t do something and we’re all incapable of sorting out these logistical problems.”

Johnson accuses May and the Treasury of exploiting the issue of the Northern Ireland border in order to remain closely tied to the EU:

“The manacles have been co-forged, if you like, by us. We have decided to collaborate in our own incarceration….

“It’s unbelievable. It’s a kind of S&M approach to Government. What perversion is it where you want to be locked up in chains?”

The interview was carried out yesterday afternoon by Paul Goodman and Andrew Gimson, who began by reminding Johnson of a curious piece of unfinished business between himself and Conservative Campaign Headquarters.

ConHome: “It’s four months since CCHQ launched an inquiry into you following your remarks about the burka. What’s going on?”

Johnson: “I have no knowledge whatever of what’s going on.”

ConHome: “Have you not heard from them?”

Johnson: “No.”

ConHome: “They’ve not said anything at all?”

Johnson: “No. There was a lot of toing and froing in the initial phases. There’s been nothing for months.”

ConHome: “They accused you of breaking their code of conduct, set up this massive inquiry, then nothing?”

Johnson: “I think my best course on this particular issue, gentlemen, is to say I want to talk about other things. In a nutshell, what needs to happen now is we need to do two things. I think we need to throw out this deal.”

ConHome: “Should Theresa May pull the vote?”

Johnson: “That’s a matter for the Prime Minister. But I think it would be pretty odd to pull the vote now. I think there’s been a negotiation, that negotiation has concluded, the 27 plus one have agreed a treaty, we want to sign up to it and to get it through Parliament.

“I think it would be very, very odd now not to give Parliament its promised say on that treaty. So I hope that it will proceed to a vote. I believe that it will and I think that it will be voted down.

“It’s then that we need to do two things – I’m assuming that it’s voted down. I don’t want to anticipate the margin.”

ConHome: “You’re not anticipating some trick of the whips’ light, whereby you don’t get to vote on this motion at all –  there’s some cunning amendment by which the Government loses by less, which allows her to come back again?”

Johnson: “People want to be able to express their views and the views of their constituents on the Withdrawal Agreement. That’s the agreement that determines our future negotiations with Brussels and indeed probably determines our future constitution for many, many years to come.

“And I think for us not now to have a vote on that, the Government and Prime Minister having agreed it, at 27 plus one, would be a very, very serious mistake, and I think people would notice it and I think they would feel cheated.

“I also think by the way that to withdraw the vote now would be an admission of defeat – an admission that it was not something that had found favour with Parliament. I think the vote will go ahead, I think it will be defeated, I can’t prophesy the margin.

“And what needs to happen then is that we need to renegotiate, and renegotiate in a generous, optimistic, energetic way that goes back to some of the principles the Prime Minister outlined at Lancaster House, reinstates the idea of putting a big free trade agreement at the heart of it, gets rid of the Northern Irish backstop, which is a peculiarity and unnecessary – it is simply not true to say that you need a backstop in order to have a treaty – and remit all discussions about the solution of the Irish border question to the two-year period or the 18-month period at least that follows leaving on 29th March 2019.

“And on the Irish border question it’s very important to stress that this is a difficult question and obviously a sensitive question, but it is not an insuperable question. No one should minimise the issues, on the other hand nor should we exaggerate them.”

ConHome: “You didn’t say anywhere that there should be a hard border, did you?”

Johnson: “No, no, no. And both Michel Barnier and the Dublin Government and London and the Prime Minister have said there is no need for a hard border. As you know Jon Thompson, head of HMRC, has said the same.

“So that issue of how to get the maximum facilitation provisions in, so as to deliver frictionless trade and yet for the whole of the UK to come out of the Customs Union and out of the Single Market – that solution is eminently deliverable, but the time to deliver it and the time to elaborate those provisions is during the IP [Implementation Period], during the period up to the end of 2020.”

ConHome: “Just on the backstop, what did you agree to last December?”

Johnson: “Well last December what the Joint Report said was that failing all other solutions Northern Ireland should remain in alignment for goods and agrifoods. But it was nothing like as predatory upon Northern Ireland as the backstop, because it certainly didn’t say, for instance, that the EU could veto the UK’s exit from that arrangement.

“Indeed that arrangement, the Joint Report of 8th December, was presented to all Government ministers by Number Ten as being a mere form of words, this is just language that we need.”

ConHome: “Do you feel you were misled about that?”

Johnson: “Yes I do, and I think colleagues would say the same.”

ConHome: “The famous Michael Gove article in The Sunday Telegraph, in which it’s claimed, briefed by Downing Street, that the backstop wouldn’t really have any force.”

Johnson: “That’s right. No we were given to understand – and I remember going over to Number Ten, because my lawyers in the Foreign Office were extremely agitated about it, because contrary to popular belief, there are plenty of people in the Foreign Office who are very excited by the idea of Brexit and having an independent foreign policy and doing things differently, and they certainly were keen to vindicate the law as they saw it and to make sure we didn’t make any mistakes.

“And that provision in the 8th December Joint Report was something they were very concerned about. And I was very concerned about it and had a lot of argument about it and a lot of toing and froing.

“I think it was the evening of the 7th, it was right at the last moment, and I was holding out and holding out, and then I was summoned across to see the Prime Minister and her Chief of Staff.

“And we sat in the little office there, and you know, I made my points. The problem with that original agreement in the Joint Report was that it seemed to me to undermine our ability to go to no deal, or to walk away from the talks, because le cas échéant  [if need be] as they say in Brussels, if you can’t do this, then you do this.”

ConHome: “Did they tell you ‘nothing is agreed until everything is agreed’?”

Johnson: “That is exactly what they said. So we were told this is entirely provisional, it’s a stop-gap, it’s a piece of lumber that is being used to prop up the building until a proper pillar could be constructed.”

ConHome: “By the way, no one thought at that point of bringing in the then Attorney General?”

Johnson: “We weren’t aware of any legal advice at all at that stage. The crucial thing to remember now is that it’s very convenient for those who are still in Government to say the real mistake was made back then.

“But actually that’s not true. Because it was perfectly open to the Government at that stage and beyond to say ‘No, no, no, we want a different approach’, and it was only on that basis that the thing could be changed.

“And I was told the priority was to go for options A and B. Option C, you’ll remember from the Joint Report, ‘No, no, no, we’ll never go for that – we’re just going to put that in so we can get on to the next phase – so the Prime Minister can get an agreement at the summit.’

“That was what it was. So that was done in total bad faith. The story of the next six months or so, in which I remained in office, is a story of trying to get things back on track.There was a great struggle going on at the centre of government between what I then called the Forces of Remain, and those that thought we really had to deliver on the verdict of the people, but also, and this is the crucial thing for Conservatives, deliver on our manifesto.

“And if you look at our manifesto in 2017, imperfect document though it is, or was, or turned out to be, insofar as it spoke of our membership of the EU and of Brexit, it was very clear that we were coming out of the Customs Union, we were coming out of the Single Market. It could not have been clearer.

“And what we were doing, and what I continue to do, by what I’m proposing, is to defend what every Tory was actually elected on.”

ConHome: “If she loses this vote, which some are saying she might well do by a very large margin…”

Johnson: “Well I wouldn’t want to exaggerate that. One would be enough.”

ConHome: “Even if it’s by one, can she really go off to Brussels as though nothing has happened, and shouldn’t she resign?”

Johnson: “No. The issue I want to focus on is what I think the Government should do irrespective of whatever she decides to do.”

ConHome: “Well it can’t exactly be irrespective of her. She’s got to agree with what the Government is doing. You’re suggesting she might resign?”

Johnson: “What she needs to do, or what the Government needs to do, is go back to Brussels and make it very clear that Parliament has not accepted the Withdrawal Agreement, and that it’s time for the backstop to come out, and time to negotiate a free trade agreement, to use the IP to do that.

“The idea of handing over £39 billion of taxpayers’ money now, in advance of the final deal, is very, very strange, and I think actually a complete mistake. And so I think what we need to do in the next phase is to say look, this cash could be available at the end of negotiations if you are supportive. Because at the moment they have not been supportive. They have been massively obstructive.

“This deal is a disaster for our country. It basically means the EU can blackmail us into any terms they like in the course of the negotiations on our future. Unless every single EU member state agrees to the terms of the new relationship, they can keep us in the backstop.

“And by being in the backstop, we are confined to the Customs Union, so we can’t do any free trade deals. It’s nonsense to say we can do free trade deals. The Government must stop saying this. You can’t set your own tariffs.

“Secondly, and perhaps even more destructively, we would be locked in regulatory alignment with the whole of the EU goods and agrifoods acquis, and environment, and social policy, unless we were willing to split up the Union, and split Northern Ireland away from Great Britain.”

ConHome: “Do you think we learned anything new from the Attorney’s legal advice on that?”

Johnson: “What it made clear is quite how pessimistic he was about our ability to leave unilaterally.

“People need to understand that there’s a reason why this backstop exists. It’s not just that it’s been invented in Brussels or by the Commission. The manacles have been co-forged, if you like, by us. We have decided to collaborate in our own incarceration. Like Charlie Chaplin in Modern Times, I don’t know if you remember, he has the chance to leave prison and he decides to stay.

“The whole Northern Ireland issue has been a very convenient device for the very large numbers of people in the Treasury and BEIS [Department for Business, Energy & Industrial Strategy] and everywhere else who basically believe we should stay in the signature EU institutions.”

ConHome: “Just a moment ago, you veered between saying what ‘she’ and ‘the Government’ needs to do next week, which suggests you think she may not be there next week.”

Johnson: “No, I’m sure she will be there next week.”

ConHome: “You’ve not sent in a letter?”

Johnson: “You can ask me until you’re blue in the face but I’m not going to comment on epistolary communications of that nature.”

ConHome: “You’re not saying you haven’t?”

Johnson: “I’m not going to comment on my private correspondence, nor would you expect me to.”

ConHome: “Will you stand if there’s a vacancy?”

Johnson: “This is a question of changing the policy, and that’s what I have been working to do since I resigned in July, and I think, though I may be wrong, we’re on the verge of success. I really, really think that after months and months and months, people are really starting to get it.

“Talk to colleagues now, very, very good and reasonable people, Mark Harper, David Evennett, good, good colleagues of mine, Hugo Swire, the centre of gravity of the Conservative Party, can see that this thing doesn’t work.”

ConHome: “Jo Johnson.”

Johnson: “Jo Johnson and many others.”

ConHome: “We have to ask you the pining for the fjords question. Because it is being put around that this is a divided country, and what is required is a healer to come forward and march us all into the EEA and solve the problem and bring everyone together. And this person can be Boris Johnson.”

Johnson: “Well I think there are two traps in that brilliant question, which I’m going to try to steer round. The first is that the EEA just doesn’t work for us. The problem with it is that you’re even more of a rules taker than you are under this deal.”

ConHome: “It’s worse, in your view.”

Johnson: “Yes. Norway plus the backstop is worse. Why would you do that? It makes no sense at all.

“You could imagine a different arrangement than the current IP [Implementation Period]. The current IP is extremely humiliating. We are just straight vassals for the two years. You could imagine that we had a limited period of EEA-style existence.”

ConHome: “This is Norway to Canada?”

Johnson: “It doesn’t really work. You’d have to negotiate your way in, and then you’d have to negotiate your way out. I don’t think it’s really a runner.”

ConHome: “People like Nick Boles have been speaking in favour.”

Johnson: “I know, but they don’t really want to go forward to the Canada solution.”

ConHome: “The standard objection to this is that this is all sound and fury from Boris, because they’re not going to give us Canada unless Northern Ireland is severed off.”

Johnson: “They’re not going to give us anything until we are treated as sovereign and equal partners in this negotiation. And so far we’ve given no indication that we are willing to do the thing that is necessary for them to take us seriously.

“The second thing without which no negotiation can be successful is to do what we’ve totally failed to do over the last two and a half years, and that is to get ready to come out on WTO terms, and genuinely to be able to offer the EU a solution that they might not like, but will make them sit up and take notice.”

ConHome: “Isn’t it the fact that the Government has sabotaged its own option in this regard. The saying used to be that no deal is better than a bad deal. But the Chancellor was in front of a committee on Wednesday saying it’s all very difficult. They’ve had two years to prepare for this.”

Johnson: “It’s unbelievable. It’s a kind of S&M approach to Government. What perversion is it where you want to be locked up in chains?”

ConHome: “We’ll look it up.”

Johnson: “There is a general desire to prove that it’s impossible to get out. Good economic news was always greeted in the Treasury with remarkable distaste.”

ConHome: “Shouldn’t there be a Chilcot-type inquiry into the Government sabotaging its own policy and spending a massive amount…”

Johnson: “Before we go to inquiries let’s get this thing right. We’ve got a chance to do much, much better. And being prepared to go to WTO is absolutely crucial.

“All the anxieties about the insulin and car parts at Dover, that is a problem that is supposed to be occasioned by what the French might do.

“But you have to ask yourself, looking at what is happening now in France, and looking at the economic state of the Pas de Calais region, and the pressures on Macron, is he really going to tell the burghers of Calais that they are going to be deprived of UK traffic in the future?

“Because I tell you what we can do. There’s absolutely no reason why we shouldn’t start diverting stuff to Zeebrugge and Ostend and the Hook of Holland and indeed other ports.

“There could be real losers if the French Government decided to be difficult. And in my experience of watching public health scares, public logistical scares, millennium bug type things, is the longer business and people have to think about the implications of something, the more super-masticated the problems become, and magically you find that when you actually reach the great deadline, where the great disaster is supposed to happen, it mysteriously fails to happen.

“I don’t want to pretend to the public there would be no disruption at all. I don’t want to pretend there would be no challenges at all. But what people I think want to see is a bit of gumption from this country and a bit of willingness to tackle those problems, and a bit of leadership. And I think people are fed up of being told their country can’t do something and we’re all incapable of sorting out these logistical problems.”

ConHome: “What’s the Johnson family Christmas going to be like, when you’re sitting round the table with Jo, and your sister, and Stanley, all these Remainers.”

Johnson: “Glutinous harmony. The feast of reason and the flow of soul.”

ConHome: “Just a last thing. Hasn’t a symptom of the problem throughout been as follows: Boris Johnson stands for the leadership – Michael Gove withdraws his support; Chequers – Michael Gove comes in on the side of the Prime Minister, it’s apparently quite decisive or influential; Michael’s winding up for the Government on Tuesday, we hear. Isn’t he somewhere near the heart of this Government’s problems?”

Johnson: “That is a question you must really direct at my friend Michael. How can I put it tactfully? I do think that Dominic Raab took the right decision.”

Nicky Morgan: The only credible alternative plan is Norway Plus. And that may well be what Parliament ends up supporting.

But it could take the ruling out of all other options before we get there. And if MPs ends up reaching a consensus view, then the Government will have to adopt it.

Nicky Morgan is Chair of the Treasury Select Committee, a former Education Secretary, and MP for Loughborough.

Getting back to my constituency and away from Westminster is very welcome at the moment. A weekend of Christmas tree festivals, Santa Fun Runs and shop window competitions is a good reminder that life does go on – even if Westminster politics feels as if it is in melt-down. I did wonder for a moment if, for the same reason, the Prime Minister might decide that Argentina is a good place to move to, and that we might not see her again in SW1 after the G20 summit.

But amidst the snow scenes and flashing lights, Brexit is never far away. And it is noticeable this year that constituents who would never normally comment on political events are all wanting reassurances from their MP about where the negotiation and parliamentary process is headed. I wish I could provide more guidance.

This is aside from the hundreds of e-mails I’m now receiving from constituents which cover every conceivable shade of opinion on Brexit – confirming just what a divided country we still are on this critical issue. On Friday morning a constituent assailed me with: ‘Are we doomed, Mrs Morgan?’ I replied that we were not, and that there would be a way through the apparent impasse. He looked unconvinced, and said that he has been explaining Brexit as being like a jam doughnut…the trouble being that at the moment it looks as if we have the half without the jam in.

But wasn’t it always going to be the case that a process as significant, polarising and complex as Brexit would result in no one getting what they wanted?
My views on the Prime Minister’s proposed Withdrawal Agreement and the draft political declaration haven’t really changed since my last ConservativeHome column. But I am more alarmed by how definite so many of my fellow MPs are that this is a terrible deal, and that it must be opposed – not because they have an alternative plan, but because they hope to either secure a second referendum or because they would prefer a ‘no deal’ hard Brexit. For reasons set out by me and others, I believe both courses of action would be supremely damaging to the long-term interests of the United Kingdom.

But, as I previously warned, if the draft agreement is voted down and – as seems more likely now – more Conservative MPs (i.e: Sam Gyimah) speak out in favour of a second referendum, and if the Labour party changes its official views on a poll, the Brexiteers who hate this deal may find they end up with a second vote in which the only options on the table are the deal they’ve rejected in the Commons or remaining in the EU.

Indeed, the only credible alternative plan is a Norway Plus option. Nick Boles, its main protagonist on our benches in the Commons, has been open to taking on board comments and criticisms of the optionm and those changes are fully reflected on the website www.betterbrexit.org. This may well be where Parliament ends up – but it may take the ruling out of all other options before we get there. And if Parliament ends up reaching some form of consensus view, then the Government will have to adopt it, too.

And all the time this is going on, there are key debates about issues such as police funding, homelessness, social care funding and immigration which remain in the background when they should be front and centre of our politics. It is all very well for Caroline Lucas (and others) to write about all the issues they’d like to see addressed by the UK Government and politicians. But for as long as she (and those others) keep pushing the option of a second vote and oppose the proposed deal, then the airtime and Whitehall bandwith to deal with these other issues remains completely constrained.

During the next eight days, MPs must prove ourselves worthy of the positions we hold. Our actions will be scrutinised as never before. The stakes are high, and the alternatives need to be weighed very carefully. We cannot know for certain what the consequences of voting the Withdrawal Agreement down would be, but doing so will not provide certainty or stability. This is truly a vote in which, for decades to come, we will be asked to justify how we voted and why we voted the way we did.

The House of Commons renders the proposed television debate on Brexit utterly superfluous

It is hard to see how the different Brexit alternatives can be presented anything like as well on TV as they will be in Parliament.

At first glance, Theresa May’s push for a television debate with Jeremy Corbyn looks understandable as part of her drive to be seen doing everything she can to persuade people of the merits of her Brexit deal.

The Prime Minister wishes to demonstrate she will leave no stone unturned and spare herself no exertion between now and the vote on 11th December. She is also confident she has a far greater command than Corbyn of the meaning and detail of her proposals, so has good chances of showing him up as a lazy thinker who has not gripped the subject.

But the more one examines how the debate might actually work, the odder it looks, and the less surprising it has become a stumbling block, with no agreement even about whether the BBC or ITV will host it.

Brexit is a horribly complicated subject, with a wide range of mutually contradictory outcomes being canvassed by devoted adherents, ranging from No Deal to the Norway option to a second referendum. It is obvious May and Corbyn have no interest in doing justice to these different ideas.

The Prime Minister is determined to frame this as a choice between her deal and chaos. She is entitled to push that line, but the broadcasters cannot allow themselves to become mere tools in Downing Street’s propaganda offensive.

So the BBC proposed a panel of 20, half of whom would back the PM and half of whom would canvass other options. It then agreed to reduce the panel to ten, split the same way.

What scope for rancour there is in this proposal. No one is likely to feel that in the small amount of time available, his or her cherished ideas about the best way forward have been represented as well as they deserve to be represented.

Happily, there exists a better way of having this debate. A chamber exists in which 40 hours have already been set aside for it, with over 600 members on hand to represent the different points of view.

This chamber has rules of debate which have evolved over a long period, and which enable opposing points of view to be expounded and challenged. It can and does oblige the Prime Minister to attend for hours on end, in order to answer every possible question, not just from the Leader of the Opposition but from the Scottish and Welsh Nationalists, the Democratic Unionists, the Liberals and from many Conservative and other backbenchers who have important and often inconvenient points about which they wish to inquire.

The Members of this House, who have been elected under clearly understood rules by the whole nation, feel themselves under pressure to be intelligible, and if possible to make their arguments in pithy and witty form, for there is then the greatest chance of getting what they have to say across to the wider public. They can be lobbied by their constituents, and find it prudent to remain aware of local opinion, while also exercising their informed judgment on the often very intricate and contentious questions which need to be resolved.

The House has a quick-witted chairman whose duty is to facilitate this process, learned clerks who know how to give legal form to the different options, and voting procedures which enable decisions to be taken. There are also press and public galleries from which the debate can be watched and reported, and the proceedings will, incidentally, be televised.

Why hold the other, much shorter television debate, under improvised and inevitably unsatisfactory rules of procedure, when this far superior forum, known as the House of Commons, already exists?