David Hannay on the inadequacies of May's deal, what Europe would think of extending Article 50—and why many of the arguments against a second referendum are "spurious"by David Hannay / November 26, 2018 / Leave a comment
Theresa May who heads to with her Brexit deal under threat at home and abroad. Photo: PA The fog of Brexit battle has lifted—briefly. For months now, the Brexit negotiations have been shrouded in a fog of rumour, obfuscation and double-speak—much of it generated by the Prime Minister and her closest advisers. This confusion was designed to conceal what was really going on at the negotiating table in Brussels, not from the EU 27 but from May’s own Eurosceptic cabinet colleagues and her supporters in the Commons. Now the fog has momentarily rolled back and revealed the content of the deal on offer: 585 pages of impenetrable legal prose on the withdrawal provisions and the 21-month transitional period, and 26 pages of warm words and pretty worthless waffle about the future UK-EU relationship from December 2020 onwards. None of this political declaration is legally binding on either side and much of it merely consists of a list of aspirations—or of alternative, and mutually incompatible, solutions. In less than three weeks’ time, this deal will be debated in Parliament and submitted to an up or down vote in the Commons. As of now, the parliamentary arithmetic points to its rejection, with outright opposition expected from Labour, the Liberal Democrats, the Scottish National Party, Plaid Cymru and the Greens, together with the Democratic Unionist Party and a considerable number of ultra-Brexiter and pro-Remain Conservatives. Does it deserve a better fate? Not really. It is an uncomfortable set of compromises which, when compared with our present situation as a member, falls short on every aspect of policy it covers. At the same time, it does not in fact “take back control” over our laws, our borders and our money, as the Prime Minister continues to claim with metronomic regularity. The European Court of Justice, shorn of any British representation, will be the ultimate arbiter in dispute settlement procedures; freedom of movement will continue for the next 21 months—and perhaps longer if the transitional arrangements are prolonged; and the divorce bill and substantial contributions to EU programmes which the government, reasonably enough, wants us to remain part of—such as scientific research and internal security—will require funding for the foreseeable future. No wonder Dominic Raab, who recently resigned from his post as Secretary of State for Exiting the EU, said before the weekend that remaining a member would be better than that. So what happens if the deal is voted down? At that point, the fog rolls back across the battlefield and nothing can be said with any certainty. There are plenty of advocates among the ultra-Brexiters and the DUP of simply abandoning the attempt to negotiate a withdrawal deal and crashing out on 29 March next year without one. But that approach falls miles short of a majority in either House. And the government itself, which has better reason than anyone to know just how damaging that would be—and how much bitterness and recrimination it would cause with our European partners and allies— has for months now been pursuing an undeclared policy of “any deal is better than no deal.” So do not expect them now to take ownership of the latter. Could the (or a) government go back to Brussels and seek to re-open the negotiations? They would get short shrift if there was not first a bonfire of the present “red lines” and a completely new basis for negotiations. Clever wheezes such as trying to join the European Economic Area on a temporary basis while we sorted out our position would be unlikely to escape the same fate—both from current EEA members such as Norway and from the EU 27. So, is the prospect of another referendum to choose between the deal on offer and remaining in the EU now that we have a clearer picture of what leaving would entail than we had in 2016 a likely outcome? It is certainly a lot more likely than it was a few months ago; but it still faces some formidable obstacles, not least the need to pass the necessary legislation through Parliament, and the ambivalence of the Labour Party. Is it a good idea? Certainly, many of the arguments against holding such a referendum are pretty spurious. Take the one that another referendum would sharpen and prolong the divisions in the country: one look at the agenda for negotiating a new partnership set out in Theresa May’s deal shows that those divisions are all too likely to dominate British politics for years ahead. Is it not more likely that a binary choice referendum would bring something near to closure? Whatever the outcome, surely no political party is going to re-open the issue after the traumas of the last three years? Whatever happens, there is one thing we do know. Any option other than “no deal” is likely to require more time than is available between Christmas and the end of March next year. So it would be wise if both our own government and the EU 27 began to factor in the need to contemplate some limited prolongation of the two-year cut-off provided in Article 50. Would the EU 27 be prepared to agree to that? Not if it was purely a time-wasting device or an attempt to squeeze more out of the negotiations just concluded. But, if it was needed to resolve what would, in essence, be a constitutional crisis in the UK, then it is likely that they would. The policy choices facing Parliament and the country are certainly agonisingly difficult ones. But simply trying to put them off and kicking the can down the road—which is the Prime Minister’s favourite recourse and which has contributed considerably to the mess we are in now—may not be either feasible or desirable. Almost anything, apart from no deal, looks better than trying to grope our way for years through the fog of Theresa May’s negotiating timetable.