Is the Backstop the real reason for UK gridlock? What are the options?

EU Priorities |

The Brexit process seems to have got mired in something called the Backstop which few people, at least outside Ireland, understand but which is portrayed as way of keeping either the whole of the UK or just Northern Ireland more closely tied to the EU than they would have wanted. But is it the real reason why the government cannot get the deal it has negotiated with the EU through the House of Commons? And how did we get here? Certainly it is the reason the Democratic Unionist Party of Northern Ireland which has since the June 2017 general election been part of the government majority, but it is not the only reason why the eighty or so Conservative MPs who want less close relations with the EU (hard Brexiteers), reject the deal the government has negotiated. In the first months after she became prime minister, Mrs May called for a total break with anything to do with the EU, but has responded to pressure from all the main business organisations (Confederation of British Industry, Federation of Small Businesses, Chambers of Commerce and Institute of Directors) for a deal which provides something close to “frictionless” trade in goods. This requires close cooperation on customs and the UK continuing to implement EU rules on standards for goods. In other words within this limited area the UK has to be a rule-taker. In what way the UK could benefit from diverging in standards for goods is not specified by the hard Brexiteers, but the principle of not being “rule-takers” is important to them. Rigidly applied that principle is not compatible with frictionless trade. Therefore it is probable that even had there been no problem with Ireland, any agreement which allowed trade to continue without serious obstructions would have been opposed by a substantial minority of Conservative MPs and therefore not passed, given that up to now there has been no attempt at cross-party co-operation from either Conservative or Labour leaders and therefore only a very small number of opposition MPs have supported the government’s deal. In late January some leading hard Brexiteers like Jacob Rees-Mogg did indicate that if the Backstop was removed they might be willing to consider accepting the deal, but this move came not in order to avoid a no-deal but because of what they perceive as a threat that the House of Commons might vote to ask to delay leaving the EU with a view possibly to a  softer Brexit agreed with the Labour Party or a referendum with Remain as an option. In the now unlikely event that the EU did drop the Backstop and that the Conservatives and DUP managed to unite to pass the amended deal, it would only postpone the debate on whether to aim for frictionless trade until close to the two year transition period which will come into effect if an amended Withdrawal Agreement is passed, since the countours of the future trading relationship with the EU, apart from the Backstop, have been left vague.


How did we get here?

It would, however, have been a lot clearer had the Irish issue not muddied the waters. The EU’s negotiating stance can be criticized. It was reasonable to demand agreement on settling debts and the rights of 3 million EU citizens living in the UK before beginning negotiations on future trading relations but the demand that agreement be reached on measures to avoid any checks on goods crossing the border between the Republic of Ireland and Northern Ireland beforehand was not a very reasonable one, given that this demand itself affects the nature of trading relations between the UK and EU. It is difficult to understand why the UK government agreed, as early as December 8th2017 in a Joint Report from the Negotiators of the European Union and the United Kingdom Government, that  “In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement.” This was while the leading Brexit supporter, David Davies, was minister for Brexit. The UK government and Brexit supporting MPs had consistently dismissed concerns about the impact on leaving the UK on relations between the Irish Republic and Northern Ireland and consequently relations between the large minority of citizens of Northern Ireland who identify more with the Republic of Ireland than the UK. A more pro-active involvement with Ireland might have persuaded the Irish government not to insist within the EU on its unyielding stance, which has led to the Backstop.


Leavers did imply that trade would not face severe obstacles

Even so, the basic divide within the Conservative Party is more fundamental than acceptance or otherwise of the backstop but over whether there should be an agreement providing for trade not being obstructed by major border controls whether in Ireland or between Dover and Calais. The hard Brexiteers in the Conservative Party insist that the deal agreed by the government does not provide a genuine Brexit as allegedly voted for by 52% of voters in the 2016 referendum since. They point out that the UK still has to make some commitments which limit its sovereignty, even though these commitments are quite limited and allow the UK to make its own legislation on all other legislation, such as that affecting trade in services, environmental and social legislation and crucially the criteria applied to which  EU citizens of other member states are allowed to work in the UK; it also does not provide in principle for any budgetary contributions after debts have been settled, although in practice if there were to be future cooperation in areas like research and security they would be bound to require some contribution by the UK. During the referendum campaign, most spokespeople for the Leave campaigns did argue that the UK would be able to agree a lossely-defined trading arrangement with the EU which implicitly did not put in place major bureaucratic obstacles to exporting. This is indeed essentially what the agreement reached by Teresa May’s’ government does. The Leavers admittedly did not say that any such agreement requires commitments on the UK’s part. But that was bound to be the case. It would also be the case for any agreements that the UK might in the future negotiate with countries elsewhere in the world, as Leavers are keen to do. The US for example has made it clear that its demands would require a loosening of the UK’s food hygiene standards and rights of access of US health companies to the National Health Service, commitments which some might see as more intrusive than anything entailed by membership of the EU.

The hardline Brexiteers who are now arguing that their mantra “Leave means Leave” requires leaving with no deal at all, so reverting to World Trade Organisation rules in trade with the EU, claiming that many of those supporting the deal negotiated between the UK and the EU including Mrs May herself are not true Brexiteers since they voted Remain in the 2016 referendum. However, there are a number of leading Leave campaigners who still in the government still and do support the deal, such as Michael Gove, Liam Fox and Andrea Leadsom. So in fact the Brexiteers are divided on what kind of Brexit they want, and this is arguably the main reason holding up the process of leaving. It could be defined as a division between hard and soft Brexits, though Mrs May’s deal is not really a soft Brexit which was initially seen as aiming to stay in both the customs union and single market, but perhaps a middle of the road Brexit.


What are the possible scenarios?

The deadlock caused by the division in the Conservative Party mean that other possible courses of action have to be explored. The hard Brexiteers would prefer that nothing should happen between now and March 29th, 2019, when the UK is due to leave the EU according to Parliament’s invocation of the EU’s Article 50 to leave the EU two years earlier. However, there is a large majority in Parliament against this and there is move for Parliament to ask the EU to delay the implementation of Article 50. That does not necessarily mean that the EU would accept such a postponement and would probably require some plan of action rather just continued debate. At present, Mrs May is still insisting the government will countenance only two options: its deal or leaving on the scheduled date with no deal. In the second half of Janaury, she for the first time met with leaders of some opposition parties and some prominent Labour MPs, (excluding Jeremy Corbyn), but did not appear willing to change her position. For Parliament to vote to override the government is constitutionally controversial but has been allowed by the Speaker, John Bercow.

One possibility is another referendum. This would probably have to include three options: accepting the deal leaving with no deal or remaining in the EU, with second votes allocated to the two options which lead amongst first choices. At present this option only commands the support of about 150 MPs, less than a quarter. It is not wanted by Jeremy Corbyn, the leader of the Labour Party although he has said he is bound by a party conference resolution for a referendum if other options fail. While Mr Corbyn officially supported the Remain campaign in the referendum, he was far from enthusiastic and for most of his political career he opposed EU membership. He still wants to leave the EU, arguing that the referendum result should be respected but also probably reflecting his own preference. Nevertheless he has come round to a position where he is strongly insisting on rejecting leaving with no deal as he agrees with the majority view that to do so would be deeply damaging to the economy and to jobs. He has indeed made rejecting the possibility of no deal a condition of even meeting Mrs May.

If as seems likely a majority of members of Parliament vote to postpone Article 50 they will then have to discuss other options to the deal they have rejected. With a referendum at present the preferred option of only a minority of MPs the only other option would be for cross-party discussions on negotiating a different deal which would be agreed across parties. In order to win over the large number of Labour MPs that would be needed to offset the Conservatives who voted against Mrs May’s deal, this would almost certainly have to include being part of a Customs Union, a position which is endorsed by Mr Corbyn and most Labour MPs. This however would be a huge problem to the Conservative Party. It would clearly not be accepted by any of the MPs who voted against the Mrs Mays’s deal because they considered it conceded too much to the EU but would also struggle to win support amongst many who did vote with Mrs May, including Mrs May herself. This is despite the widespread argument in the Conservative Party that the reason they now wanted the UK to leave the EU was because it had changed so much from what its predecessor was at the time of the referendum of 1975. But the EEC or Common Market in 1975 was based on the Customs Union.

In addition Mr Corbyn wants the UK to sign up to the EU’s Charter of Fundamental Rights. Although this would amount to a stronger commitment to existing statement of intent by the government to maintain social and environmental standards, it would not be easily be accepted in the Conservative Party. To have any chance of agreement with both the EU and Conservative MPs beyond the small number of strong Remainers, the Labour current policy aim of access to the Single Market on as good or almost as good conditions as under EU membership or European Economic Area membership (the Norway option) would have to be dropped, since the Single Market requires both free movement of people in search of employment and large contributions to the EU budget, the two biggest single issues in the referendum campaign. In any case, membership of a customs union and signing up to the Charter of Fundamental Rights would risk losing the support of many numbers of many Conservative MPs who supported Mrs May’s deal. Nevertheless an attempt at a cross-party agreement on an amended deal seems the only option if MPs vote to postpone Article 50 and the EU accepts such a postponement. If this were to fail, Mr Corbyn would probably again seek a general election, but would probably again not succeed. Under the new Fixed Term Parliament Act, an election must be called if a government loses a confidence vote and no new government can win a confidence vote within 14 days. Mr Corbyn clearly wants such an election in the expectation of winning a Labour majority or at least putting Labour ahead of the Conservatives so that it would  be in a strong position  to form a government with the support of other parties. But all Conservatives and the Democratic Unionist Party are strongly opposed to a Corbyn government so are very unlikely to vote against the government in a no confidence motion placed by Mr Corbyn. The only conceivable eventuality in which some Conservatives might do so if it was the only way to avert a no-deal Brexit. In the event of a general election, there is a possibility but no certainty that the outcome would give Labour a mandate to negotiate and then pass an amended deal through Parliament. At present opinion polls show Labour level with, or slightly behind, the Conservatives. In the last general election the Labour campaign led to a result that was substantially better than its starting position in the opinion polls. This might happen again to some extent but that would require convincing a new set of people to vote Labour who did not do so despite the successful campaign in the last election.

Assuming that Parliament votes to request a postponement of the implementation of Article 50 and the EU accepts such a postponement, and that neither of the two possible solutions – a deal involving some elements of Labour’s proposal were agreed by both the EU and a majority in Parliament,  or a general election were to produce a mandate for a new agreement to be negotiated and the endorsed by the new Parliament – then despite the disadvantages of such a move a second referendum would appear to be the only way out.

At present the latest YouGov poll on January 16th, suggests that if a second referendum were held now 48% would vote to Remain 38% Leave, 7% undecided and 6% declare they would not vote. But the absention rate has always been far higher than 6%. The last referendum result was not that expected by most observers and there is no certainty over the result of another poll. It would depend as not only whether more people change their mind but on how many on each side actually come out to vote.