Most crucially, Parliament has clearly demonstrated – with insufferable arrogance – that it has the numbers to take control of events away from Government and defy the referendum result. The WTO Brexit option – the current legal default position – can now realistically be taken off the table by Parliament. Brexit itself can be delayed with all the potential that gives to undermine it altogether. Those continuing to hope for a WTO Brexit should heed the words of Open Europe’s Henry Newman: “the first rule of politics is the ability to count”. Nobody “hopes” for a WTO Brexit more than me, but hope is not a strategy. Unless and until Parliament reflects more fairly the country’s views on Europe our withdrawal from the EU will only be done gradually or not at all.
The government appears to have failed to persuade the EU to provide legally binding assurances that, if triggered, the backstop will be temporary. However, the EU HAS agreed to jointly work during the transition period on formulating detailed “alternative arrangements” that could replace the backstop. The UK government is prepared to commit notable money, and civil service and external resources to this project.
My change of view has been influenced by reading Diarmaid MacCulloch’s magisterial new biography of Thomas Cromwell. Cromwell was of course Henry VIII’s chief enforcer in the 1530’s, at the height of his battle to wrest power away from the Church of Rome. Henry can be said to have been the “first Brexiteer”, and there are remarkable parallels between that period and our own. It is “the will of the people” rather than the monarch that now wants to take back power from Europe, and it is the EU rather than the Catholic church that now has that power. A striking aspect of the book is just how long and arduous Henry’s struggle against Rome was. Although he was ultimately successful there were many occasions when it looked like he might fail (Henry was able to have many of his most awkward opponents executed……but I digress!). In addition to the intransigence of Rome, Henry faced staunch resistance from Parliament and the nobility, who very largely favoured the status quo. Sound familiar? The lesson I draw from this is that it was always unrealistic for Brexiteers to imagine that “with one bound we would be set free”. Extricating ourselves from a complex relationship developed over forty five years will have to be done in stages. Mrs May’s Deal is merely the first stage, and we need not be dismayed that it has proved so vexatious.
Many Brexiteers have argued, rightly, that the backstop is probably illegal and definitely unworkable. It is unworkable because the customs arrangements set out in the agreement use systems and procedures that are archaic, costly, and impracticable. It may be illegal in EU law, it also seems to be in contravention of the 1998 Belfast Agreement that secured peace in N. Ireland, and may even be in breach of the 1800 Union with Ireland Act (a treaty still in force). It can be argued these are reasons to vote against the Deal, but equally they might mean the backstop can never actually happen. In the end, a sovereign country cannot be forced by international treaty to indefinitely do things against its will, a view promoted by the moderate and balanced figure of Tom Tugendhat (Chairman of the Foreign Affairs Select Committee). Of course there would be consequences from reneging on a treaty. Less drastic legal avenues could be pursued first, but in extremis this can be done. The UK’s resistance to the backstop is very clear – an international treaty without an exit clause is virtually unprecedented – and may mitigate the consequences of reneging.
Are Brexiteers not in danger of becoming bewitched by legalese? Much of the Brexit debate has been conducted in legal terms and around legal concepts, and of course the legal issues are of great import. However, we should not forget that laws are made by people. What is made by man can be undone by man. In the end politics trumps the law. With sufficient political will any legal obstacle, no matter how apparently intractable, can be overcome – as shown by none other than Henry VIII !
The question of political will is crucial. There can be no doubt that the successful implementation of Brexit has been hampered by having a Remain Prime Minister and a heavily Remain-dominated Parliament. However, it is clear that her days as PM are numbered. Tory members and Tory voters are now roughly 70% pro-Brexit. Therefore it is inconceivable that the next Tory leader will not be either a long established Brexiteer, or less probably, at least a recent convert. The next stage of the negotiations should therefore be conducted by a PM who is much more confident about and committed to Brexit.
Concerns that the Political Declaration ties our hands too much in the negotiations about the future relationship may again be placing too much emphasis on law and not enough on politics. Once Brexit has legally happened the atmosphere of the negotiations will change. Those fighting for a second referendum will have to throw in the towel. Public support for a more robust and ambitious UK negotiating stance may grow, as it becomes apparent that the full benefits of Brexit cannot be achieved by the overly close relationship sought by Mrs May.
The UK will also be negotiating from a position of relative economic strength. The sugar rush of stimulus from negative interest rates and massive balance sheet expansion by the ECB has faded. Italy is already back in recession, and Germany, France and Spain are flirting with it. The UK economy has slowed but looks considerably more robust – despite Brexit! The EU’s economic policymakers – unlike in the UK – have neither the institutional flexibility nor the fiscal or monetary ammunition to combat the effects of a more general global downturn. This is incredibly dangerous in the context of the huge bad debt time bomb lurking in the EU banking system. The Eurozone’s long predicted existential crisis may finally be unfolding.
In summary, those MP’s who support Brexit, or at least want to honour the referendum result, but did not vote for Mrs May’s Deal first time round must prepare to change their vote. This can at a stroke take any prolonged Article 50 extension or second referendum off the table. Finally securing our legal exit from the EU may positively impact on the domestic political atmosphere and transform our negotiating position in the second phase of the talks.
A number of Brexit hardliners will hold out against Mrs May’s still flawed deal. They might reflect, though, that a few years ago they would have been overjoyed to receive the freedoms that even her deal brings, including: an end to EU budget payments, full control of immigration, total control over the service industries that comprise 80% of our economy, control over farming and fishing policy, and a major reduction in the jurisdiction of the ECJ. However, a sufficient number of Labour MP’s prepared to put country before narrow party interests might get the Deal over the line. In that case, and bearing in mind the experience of Henry VIII, the famous words of Winston Churchill may be apt:
“This is not the End. It is not even the Beginning of the End. But it may be the End of the Beginning.”