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Decision Time – Why Opposition Parties Need to Agree a ‘Brexit Manifesto’

In the Introduction to my book Brexit Time, I observed that Brexit was not the United Kingdom’s ‘manifest destiny’. Rather it was a choice. And it remains a choice.

We have now reached the point where decisive choices can and need to be made. The options are clear. Under the Johnson Government, the option of No Deal Brexit is actively being pursued. For the opposition parties the options are either for the UK to remain in the European Union or to exit on terms that will see the UK maintain a close alignment and cooperation with the EU.

These are not new options. What is new is that there is now a clear path towards finally making a decision.

The first step is to force the Conservative Government to seek a mandate for a No Deal Brexit through a General Election. That means preventing the Prime Minister from either proroguing Parliament or choosing the date of a General Election beyond the 31 October deadline after which the UK would automatically crash out of the EU.

Before a General Election can take place, MPs will have to pass a motion of no confidence in Boris Johnson’s Government AND form a unity government. Although there has been speculation and controversy over who might lead that unity government, what is more important is what steps it puts in place for a General Election that would allow the electorate to either back a Conservative No Deal Brexit, or pave the way for the other two options – Remain or a softer Brexit – to be tested.

In order for there to be General Election before the UK automatically leaves the EU on 31 October, a further extension to the Article 50 process might well be needed. Nonetheless, for yet another extension to be granted – the third such extension – the EU will want to know that a General Election is likely to produce more rather than less certainty. That means that opposition parties need to agree not just a unity government to take control over the process, but a unity position on the substantive alternatives to a No Deal Brexit.

This is why I think the opposition parties need to come up with a common ‘Brexit manifesto’ to contest a General Election. This would not, of course, replace the party manifestos; after all, a General Election would be about more than just Brexit. But when it comes to outlining the party positions on Brexit, the opposition parties need to agree a common platform.

The difficulty for the opposition parties is the split between those for whom the only viable option is for the UK to remain an EU Member State and those for whom a Brexit alternative based on a Withdrawal Agreement, transition and close future relationship with the EU is a credible option.

The Liberal Democrats might want to maintain the clarity of their current pro-Remain position which has seen them make advances in the polls. The problem with that is two fold. For the Lib Dems a simple Revoke-Remain strategy is not going to attract them the votes of Conservatives for whom Brexit is still their preference but not a No Deal Brexit. Unless they are prepared to accept a compromise position – and with it being highly unlikely that traditional Conservative voters would switch instead to a Corbyn-led Labour Party – those Conservative Leave voters may feel they have no alternative to backing a No Deal Conservative Party under Boris Johnson. For the Labour Party, MPs in Leave-voting constituencies are unlikely to get behind a Brexit manifesto that simply gives voters a choice between a No Deal Brexit or a Revoke-Remain alternative.

My proposal is that the opposition parties unite around offering voters a second step in the form of a referendum with a straight choice between Remain and a Brexit that would keep the UK in the Single Market and a partner with the EU on other forms of cooperation including security. The option of a No Deal Brexit would not need to be put in a referendum because the preceding General Election would either have seen that option accepted – with a Johnson government having a fresh mandate – or it would have been rejected.

This approach allows the key choices to be made. If Boris Johnson wins a General Election he will have a mandate to pursue his preferred form of Brexit. If he loses and either one of the opposition parties has a majority or some type of coalition is formed, the new government would be committed to giving voters a final choice between staying in the EU or leaving the EU but under different terms. Voters would know that this alternative to a No Deal would be on offer regardless of which opposition party they voted for.

It is clear that Labour is backing a strategy of a General Election followed by a referendum. It is imperative that this becomes a shared strategy of the opposition parties.

For this strategy to be viable there does need to be greater clarity and agreement about what a credible alternative Leave option might look like. My own view is that an EEA model is a credible alternative in securing continuing access to the Single Market. It would eliminate customs duties between the UK and the EU and maintain regulatory alignment not just at the point of departure but over time. There are understandable grounds for reticence about the EEA Agreement given that it is almost thirty years old. It would be helpful if the incoming European Commission could signal its willingness to review the operation of the EEA Agreement and how it might be adjusted in light of developments in the last three decades and as the EU reflects on its own future institutional architecture and relations with its near neighbours.

The challenge for the opposition parties would be to approve a Withdrawal Agreement that they have otherwise opposed. The basis for a change of position would be a very different vision of the future for the UK as a whole and a credible alternative to the backstop underpinned by the principle of consent.

Under the Withdrawal Agreement, the UK would enter into a transition period ending on 31 December 2020 or later if it is extended. It is conceivable that an EEA-type future relationship could be ready to commence on 1 January 2021 or a year or two later if a deeper review of the EEA approach was to be undertaken.

During the transition period, Northern Ireland would be in the same position as the rest of the UK with EU customs and Single Market rules applicable during the transition period. Thereafter, an EEA-style agreement would avoid the need for frontier regulatory controls on the island of Ireland but as the EEA Agreement does not create a Customs Union a different approach would need to be considered to secure the avoidance of a hard border. To that end, the UK and the EU should commit to negotiating an agreement to replace the ‘backstop’ under the Withdrawal Agreement to keep Northern Ireland within EU customs arrangements (in addition to its participation in the Single Market through an EEA-style agreement). This new agreement should be the subject of a referendum in Northern Ireland, thereby ensuring that the Good Friday Agreement principle of consent would apply to any difference in approach between Northern Ireland and the rest of the UK. To avoid the Withdrawal Agreement backstop provisions being triggered, this new agreement and a referendum to approve it would need to be in place during the transition period.

All of which will require strong signals from the EU as to its willingness not just to pursue this alternative Brexit but also to implement the steps necessary to ensure that a transition will be successful. This will entail revisiting and revising the text of the Political Declaration to reflect different Brexit priorities. My own view as expressed in an earlier outline proposal is that an ‘Implementation Protocol’ to be added to the Withdrawal Agreement would give confidence as to the commitment of the EU and the UK to move from the status quo to a new set of arrangements.

It is only by offering a credible alternative Brexit that a future referendum choice between Remain and Leave can legitimately respect the interests of voters. Leave voters will have the opportunity in a General Election to vote for No Deal if that’s what they want and again to vote for a different type of Brexit – or indeed to Remain – if Boris Johnson is unable to form a government after an election. Remain voters will know that whatever opposition parties they vote for, the option of remaining in the EU will be put to them in a future referendum alongside a compromise Brexit which they might not want but which would be preferable to a No Deal Brexit.

A General Election is the legitimate way to approve or reject a No Deal Brexit. And if it is rejected, it is only right that voters can choose between remaining in the EU or leaving with a credible alternative Brexit.

Finally, choices can be made that will be both decisive and legitimate.

 

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The Cooper-Letwin Article 50 Extension Proposal – How Long For?

Arriving at a summit at Sharm El-Sheikh, the UK Prime Minister has confirmed that this week’s votes in the House of Commons will not include a vote to approve a revised Brexit deal. No ‘deal in the desert’ is set to emerge at this gathering of EU leaders. Instead the so-called ‘meaningful vote’ will likely take place on 12 March a matter of weeks before the United Kingdom’s scheduled departure from the European Union on 29 March 2019.

There may, however, be a vote of some significance if MPs vote on the plan promoted by Yvette Cooper and Oliver Letwin to seek an extension to the Article 50 withdrawal process, pushing back the date of the UK’s departure from the Union.

At the end of January, the House of Commons rejected Cooper’s original amendment that would have extended the Article 50 process to the end of the year. But as time has passed the likelihood of a need to request more time has grown.

With the exception of a ‘No Deal’ Brexit – which MPs rejected when they voted on the ‘Spelman amendment’ in January – any Brexit scenario is now going to need an extension of the Article 50 process.

If MPs had this week been presented with, and backed, a Brexit deal, the legislation to bring that deal into law in the UK – a 100-page European Union (Withdrawal Agreement) Bill – will take time to make its way through the legislative process. This sort of extension is what is sometimes described by the EU as a ‘technical extension’ and would be for a matter of months.

However, with the EU still waiting for clarity from the UK about what sort of deal could command a majority in the House of Commons, a more radical idea has been floatedof forgetting about a technical extension and instead pushing Brexit back to 2021. In essence this would mean abandoning a 2019 Brexit with a transition period to 2020 or 2021 during which a new EU-UK relationship would be worked out.  Instead the UK would remain a Member State while it decided what it really wanted by way of a future relationship with the EU.

A delayed Brexit of this length would avoid the problems of a shorter extension running into the May 2019 elections to the European Parliament. Remaining a Member State would mean that the UK would have to return MEPs in this year’s election notwithstanding that the number of MEPs allocated to the UK have already been redistributed to the other Member States.

Nonetheless, it would also beg the question whether the EU – contrary to the position it has consistently taken – would actually be prepared to negotiate the text of a future relationship without the UK having become a so-called ‘third country’. The key advantage of having a negotiated deal in place at the moment that the UK left the EU would be that it could avoid the need to have an ‘Irish backstop’ as an insurance policy while negotiations on a future deal that would also avoid a hard border were on-going.

While one can see the advantages of a delayed Brexit, it would have profound domestic political consequences.

It would accept that the May Government had failed to produce a plan for the future capable of obtaining a consensus or even a majority within the Commons. If the Prime Minister cannot get a deal over the line with a technical extension to implement it, it’s difficult to see how either she or her government could carry on. Indeed, one might even consider that an extension of Brexit to 2021 would be a pretext for an early election to allow a new government to seek to build a consensus on a different way forward. In that way, it would be a proposal that would play to the Labour leadership’s preference for a general election as a way of unblocking the Brexit deadlock.

Delaying Brexit would create a significant rift in the Conservative Party between those who don’t want any delay to Brexit even if that means a No Deal Brexit, and those who want a softer Brexit or even for the UK to remain in the EU. It would also be a significant boost to Nigel Farage and his Brexit party who would claim that Brexit was being frustrated, creating futher tensions within the other main parties.

For those who want the UK to remain in the EU, the longer the UK remains a Member State, the greater the potential to build momentum around a new referendum and a Remain vote.

It is readily apparent, therefore, that a lengthy extension to UK membership of the EU wouldn’t merely create an opportunity to define a vision of a UK future outside of the EU, it would fundamentally reconfigure the domestic politics of Brexit.

More immediately, this all presents a very important choice for a new Cooper-Letwin Article 50 extension proposal.

Any extension needs the consent of the EU27. If the EU has come to the conclusion that an extension is EITHER a short-term technical extension OR a more lengthy delay to Brexit, then the Cooper-Letwin proposal would need to choose between these options.

If they go for a short extension it would be tantamount to accepting that Brexit will be a variant of the current negotiated texts with a risk that a No Deal Brexit could still happen if MPs refuse to back the deal.

If they go for a longer extension, it would recognise that only a No Deal Brexit had been largely taken off the table with a No Brexit option remaining in play as well as a potential change of government.

Whie the Prime Minister could have lived with an amendment giving a technical extension, an amendment that would significantly delay Brexit would be difficult for the Government to support even tacitly.  It would also be difficult for the Labour leadership not least because of the intense pressure on Jeremy Corbyn following this week’s spate of MP’s resignations from the party. The Labour Party may say it wants a general election but it is not obvious it would win given the internal divisions within the party over Jeremy Corbyn’s leadership.

Once again, issues of time profoundly shape what sort of Brexit – if any – will result. The fate of the Cooper-Letwin initiative may well depend on how much time they think is needed for an Article 50 extension.

There may be no deal in the desert but the sands of time continue to trickle for the UK and the EU.

 

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A Customs Union Without a Single Market : Is Corbyn’s Position Credible?

In speeches this week, the Leader of the Opposition and the Prime Minister are setting out their visions for the UK’s future relationship with the EU. Things got underway today with Labour’s Jeremy Corbyn announcing that Labour would press for the UK to remain in the Single Market and a Customs Union with the EU through a transitional period, with the possibility of concluding a permanent Customs Union a “viable option”, provided the UK could have an “appropriate say” in future EU trade deals with non-Member States.

The political intention is to create clear water between a Labour Brexit and a Conservative Brexit. Under a Conservative Government, the UK will leave the EU, its Single Market and its Customs Union at the end of any transitional period. The Conservatives see this as vital to deliver on its promise to regain control over regulatory policy and trade policy once the UK leaves the EU. As part of its “Global Britain” strategy, the Government wants to be free to enter into free trade arrangements not just with the EU but with other non-EU states. Labour, by contrast, has decided that the pursuit of an independent trade policy is not something that makes the electorate vote one way rather than another. Instead, it is content for the UK to have tariff-free trade with the EU through a Customs Union. Crucially, and despite the insistence of some parts of the Labour Party, the Labour leader has not committed to keeping the UK in the Single Market after the end of the transitional period. This is for two reasons. Firstly, and despite contrary analysis even from Labour supporters, the Labour Leader continues to believe that EU competition and state aid rules would prevent a future Labour Government carrying out its economic programme. Secondly, and despite the warm words in his speech about EU nationals, the Labour Leader is not willing to accept free movement of people in return for free movement of goods and services.

So what might a post-Brexit Customs Union between the UK and the EU look like?

In certain respects, the Labour Party’s proposal would take the UK back to its early membership of the EEC. When the UK joined the EEC in 1973 it became part of the Customs Union which had been completed among the six founding states in July 1968. Under transitional arrangements, the UK, Ireland and Denmark adopted the EEC’s Common Customs Tariff and progressively eliminated any remaining customs duties. The Single Market as we know it now was still in its early development. While rulings of the Court of Justice were being used to remove non-tariff barriers on a case by case basis, it wasn’t until the Internal Market programme of the mid-1980s – a programme backed by the UK – that major steps were taken to advance EU harmonization efforts to converge the regulatory policies of EU Member States. But the “1992” programme was largely focused on trade in goods, with non-tariff barriers in services being slow to change. Labour mobility was also relatively low. In other words, a Customs Union without a Single Market would turn the clock back to the 1970s with the limits on cross-border market access arising not from customs but from pervasive non-tariff barriers in both goods and services markets.

Of course, the crucial difference between then and now is that the progress which has been achieved in eliminating non-tariff barriers does not automatically disappear as soon as the UK leaves the EU. Indeed, from a domestic regulatory perspective, the European Union (Withdrawal) Bill aims to domesticate all existing EU regulatory requirements as a matter of UK law. But two things are not clear from Labour’s proposals today. Firstly, how will the current system of rules be made to operate if the UK is not part of the wider European administrative and judicial landscape which makes existing Single Market rules actually work in practice? Secondly, to what extent can or will UK regulatory policy diverge under a Labour Government?

In his speech, Jeremy Corbyn referred to “staying close” to the EU and to continue to support EU agencies with regulatory tasks including the European Food Safety Authority and the European Chemicals Agency. But even the three European Free Trade Association (EFTA) states that join in the Single Market through the European Economic Area agreement have limited direct participation in the work of European agencies. Their representatives do not form part of the management boards of the agencies. The UK could hardly get a better deal on EU agencies while staying outside the Single Market than Norway which participates in the Single Market.

The Labour leader was also keen to assert that his proposals on a Customs Union would not see a hard border on the island of Ireland. However, it is regulatory alignment that is as much an issue for the border in Ireland as the elimination of tariffs. Arguably there is more reason to have a frontier control to ensure the physical security of the European market than there is to ensure the collection of tariffs on the import of goods onto the island of Ireland. Again, it is unclear why Labour is focusing on a Customs Union at the expense of the continued elimination of non-tariff barriers to trade through the Single Market.

If we step back from the specifics of Brexit and look at the wider international landscape, the vast majority of regional trade agreements that are notified to the World Trade Organization are regional Free Trade deals rather than Customs Unions. These Free Trade arrangements do the same work in eliminating tariffs in trade in goods between participating members but leave those states free to control their trade policies with non-members. As tariffs are reduced, it becomes more and more obvious that the big issues are around regulatory alignment and regulatory cooperation. Pursuit of a Customs Union on its own is simply not a strategy pursued by the world’s major trading nations.

In the end it is difficult to see how a Labour Government can credibly pursue a UK-EU Customs Union without at the same time having an arrangement with the EU on alignment of UK regulatory policy. After all, there is little point giving non-UK/EU goods the benefit of free circulation in a UK/EU market if in practice, non-tariff barriers impede their cross-border movement. Indeed, the success of the EU’s external trade policy – the free trade agreements with which a Labour Government would be aligned in a UK-EU Customs Union – is wholly predicated on the capacity of those goods to move freely in the market once they comply with common EU regulatory norms.

Today’s speech is more about trying to define a Labour Brexit that is different from a Conservative Brexit. In that respect there is a clear divide between a UK in a Customs Union and a UK that pursues a Free Trade model. But neither approach solves the border issues on the island of Ireland. And a Customs Union without barrier-free movements of goods and services is just a description of what a Labour Government under Harold Wilson inherited in 1974.  If Labour is to avoid accusations that it is trying to turn back time while lip-syncing its way through difficult discussions about the Single Market it is going to have to do more than pin its hopes on a UK-EU Customs Union.