The Brexit deal is not a disaster, so long as May goes
The gaps in this agreement allow us to mitigate its biggest risk – that we could be trapped in it for ever
Politics is, in part, an expectations game. So perhaps it is because my expectations about Theresa May’s Brexit deal were so crushingly, bottomlessly low that, after digesting it for a day or so, I am unable to join the rush to condemn it.
The bottom line is that, even if the UK signs this deal, it still leaves open the option of getting to a Canada-style free trade deal in the end. We won’t be able to include Northern Ireland in that arrangement and that is a bitter pill for unionists, but this became inevitable once the Government signed up to the idea of an Irish backstop in December. Otherwise, this deal still leaves us in the waiting room, not yet consigned to an unescapable fate.
The main point in its favour is what it doesn’t do. It does not leave the UK as a permanent rule-taker. My greatest fear about Chequers was that it handed our European rivals carte blanche to wage industrial war upon us. It would have allowed them to start designing regulations specifically to hinder British companies. It risked leading, inexorably, to a situation in which we would have to accept every sub-clause and semicolon of the EU’S new labour or environmental regulations without any input or political rights. The deal on the table, disappointing as it is, does not do that.
In fact, for Great Britain, the regulatory aspects of the deal are extraordinarily weak. The Government has conceded that Northern Ireland will be subject to single market rules (the territory is already subject to slightly different rules). But the regulatory relationship between the rest of the UK and Brussels is left open. This does mean Mrs May cannot yet fulfil her promise of “frictionless trade”. But it also means that we can, in the next stage of negotiations, decide not to align with the EU.
The only elements of the deal that do subject us to some rule-taking are the provisions known as “level playing field” clauses. They kick in during the Irish backstop arrangement and require the UK to abide by EU competition and state aid law and not to start a programme of environmental and labour market deregulation. State aid and competition law will apply just as they likely would in a comprehensive trade deal. But, crucially, we are not required to put into law any of Brussels’ new environment or labour standards.
Even more surprisingly, there is no direct mechanism by which the EU can enforce these provisions. In fact, they are specifically exempted from the arbitration mechanism applied to the rest of the deal. So if the UK started altering its laws to better suit its economy, Brussels would have little recourse.
It is precisely because of these big gaps in the deal that I believe we have a good chance of mitigating the biggest risk in the document. That risk is the possibility that we could be trapped in it for ever.
This, as many Tories have identified, is easily the most worrying possibility. There is no provision that allows the UK to withdraw from the treaty unilaterally. This is highly unusual for an international agreement, but not entirely unprecedented.
For example, no member state of the United Nations currently has the legal right to leave. If a government had the domestic political backing to quit, however, there is little doubt that it would just do so. Likewise, if the Tories won a 100-seat majority on a promise to ditch the Irish backstop, I strongly suspect they would be able to implement it.
Of course, signing such a farreaching international treaty is more serious than joining the UN. Having no clear legal route out can make leaving more politically difficult, especially for a law-abiding state like the UK. But, sometimes, break clauses can make leaving a contract more hellish. Take the example of Article 50. Until 2009, there was no legal route out of the EU. Yet, had we voted to quit before that date and then appealed to principles established by the Vienna Convention on treaties, I suspect the process would have been substantially less dreadful than Article 50.
On top of all this, there are those big gaps in the agreement mentioned above. The EU is genuinely anxious about them. And as the UK’S own technical briefing note states, the backstop isn’t actually fully functional and, to operate in practice, “would clearly require further work and discussion”. Brussels does therefore have an incentive to move on from the backstop and not to trap us in it for ever.
This brings me to the last substantial advantage of accepting Mrs May’s fudge. It removes the pressure of the ticking clock unwisely set off by her premature triggering of Article 50. It gives Britain time to get its house in order, change leader and prepare for self-government. It does all this without definitively tying us into the vassalage arrangement that I had feared. In return, yes, we pay £39billion – but even Jacob Reesmogg has said it is worth paying for an orderly transition.
Adopting the deal does bring its own risks. There is much to dislike about the document. Its attempts to tie the UK into the EU’S home affairs and defence structures are troubling – but mercifully still undeveloped. The suggestion that our future relationship will be based upon the template of the Withdrawal Agreement is also wrongheaded – but not legally binding. Most of all, it keeps us in the customs union for some years – but there is still a way out. To leave, the UK might well have to backtrack and allow customs checks on Irish Sea trade. This is an unhappy reality, but one that became entrenched in December. It is the sort of compromise that might become possible domestically as time goes on.
Over the past two years, the Government has lurched from blunder to blunder. So is it any wonder if the result fails to live up to the Prime Minister’s deluded and misleading rhetoric? In the circumstances, the options still on the table aren’t as bad as they could be and better than the political and economic risk of a no deal under a divided and headless government.
Most of all, if the country’s senior Brexiteers wanted a different outcome, they needed to install their own prime minister and unite around a wholly different plan before pulling out the grenade pin, rather than dithering for months. It is now time for them to take responsibility for the next phase of Brexit. Mrs May must bow out by March, if she is not dethroned before then. Then, a new leader must take charge and deliver Brexit.
If senior Brexiteers wanted a different outcome, they needed to install their own PM before pulling out the grenade pin