14 January 2019

Since the UK Government and EU27 agreed on the Withdrawal Agreement and Political Declaration, MPs from across the spectrum of Brexit opinion have queued up to denounce the deal. However, criticising the deal is not a substitute for a workable alternative, particularly when many of the deal’s opponents are unclear on what that alternative should be. Having voted to trigger Article 50, leaving with No Deal is the default unless a majority of MPs can agree on an alternative.

The three largest groups of anti-deal MPs in Parliament are the Labour leadership, the cross-party advocates of a second referendum, and hardline Conservative Brexiteers – although there are others. This piece poses five key questions to each group about their proposed alternatives to the deal.

 

Five questions for the Labour leadership

 

  1. Do you accept the need for a backstop?

Labour’s position on the backstop is puzzling. Jeremy Corbyn has criticised it as “a humiliating halfway house” and warned of a “border in the Irish Sea.” The Shadow Chancellor has said “we would not need the backstop” but the shadow Brexit minister, Jenny Chapman, admitted that Labour “accept that there is going to have to be a backstop of some form.”

However, rather than proposing getting rid of or changing the existing backstop, Labour say they would negotiate a close enough future economic relationship that the backstop would not be needed. (They have also suggested their customs union policy would obviate the need for the backstop – it would not). The EU has been consistently clear that the future relationship cannot be agreed during the Article 50 period, and so even if Labour secured adjustments to the political declaration on the future, a backstop would still be required.

  1. What is your policy on the single market?

Labour have spoken of a “strong single market deal”, but reject the ‘Norway’ model of full single market membership, as this would continue free movement of people.  Their so-called six tests require any Brexit deal to deliver the “exact same benefits” of membership, yet the EU has said this is impossible outside of the Single Market. It seems Labour support a relationship close to the single market but outside it – yet Labour previously insisted they would reject deals based on the ‘Chequers’ plan, which would have achieved a similarly close trading relationship.

  1. Is a UK say in future EU trade deals a Labour red line?

Labour advocate a permanent UK-EU customs union, but one where the UK has a say over EU trade policy. Shadow Trade Secretary Barry Gardiner recently suggested the UK should “jointly determine whether a trade agreement with another country is beneficial,” and said the UK should not be forced into an agreement. However, it seems unlikely at this stage that the EU would agree to give a third country a significant say in its trade policy – and certainly not a UK ‘veto’ (EU member states don’t even always have a veto). So would Labour accept a customs union in which the UK did not have a say in EU trade deals? After all, the current Labour leadership has a record of opposing EU trade deals, and did not support the recent ratification of the EU-Canada trade deal, CETA. Equally, the condition of any customs union with the EU is likely to be harmonisation on state aid rules – something which Labour also opposes.

  1. If the Withdrawal Agreement stayed the same but the Political Declaration was changed, would you vote for the deal?

Despite their attacks on the backstop, it is not clear why the Withdrawal Agreement is so unacceptable to Labour. After all, it contains many provisions Labour claim to want – it protects citizens’ rights, prevents a hard border in Ireland, and establishes a transition period. Labour say the deal does not guarantee a close relationship with the single market, or a permanent customs union, but this conflates withdrawal issues with the future relationship. All options, including Labour’s preference for a permanent customs union, remain on the table under the existing deal. Indeed many of those Conservative MPs opposing the Withdrawal Agreement do so because they fear the backstop – which has at its heart a de facto UK-wide customs union – would be permanent. Since neither the UK nor the EU can unilaterally end the backstop, it’s not clear how this doesn’t amount to the sort of customs union Labour are seeking.

  1. Would you back Remain in a second referendum?

Labour’s current policy states that a second referendum, with Remain on the ballot paper, is an ‘option’ if the deal is voted down and a general election is not forthcoming. However, it is unclear whether the Labour Party would actually campaign for Remain in such a referendum. Shadow Cabinet minister Andrew Gwynne, for example, has suggested they would instead “push for a Labour deal.” If they achieved a General Election would a second referendum be in their manifesto?

 

Five questions for supporters of a second referendum

 

  1. Why did you vote for Article 50 if you wanted a second referendum?

498 MPs voted to trigger Article 50 after the Miller case, and both Labour and Conservatives whipped MPs to support the European Union (Notification of Withdrawal) Bill. However, a number of MPs who voted to trigger Article 50 now strongly back a second referendum – this includes Labour MP Chuka Umunna, and Conservative MPs Dominic Grieve and Justine Greening. Prior to the European Court decision in December 2018, Article 50 was not definitely known to be unilaterally revocable. Therefore these MPs voted to engage a process which inexorably led to Brexit, with or without a deal.

  1. How do you intend to get a second referendum?

A referendum would require a majority in Parliament to pass the necessary legislation, and it is unclear that such a majority exists – particularly given both front benches are currently opposed to it. Moreover, given the time it would take to legislate and hold a referendum, it would require an extension to the Article 50 period. This would require unanimous approval from all 27 EU member states, and also risks extending the UK’s EU membership beyond the May 2019 European parliament elections.

Additionally, parties committed to delivering Brexit won over 83% of the vote in the 2017 general election, with the only national party committed to a second referendum, the Liberal Democrats, losing vote share. Where then is the democratic consent to hold a second referendum?

  1. What should be on the ballot paper?

Given the question to leave has already be answered, a reasonable question would be do you prefer to leave with the Prime Minister’s deal or without the Prime Minister’s deal? However, proponents of a second referendum often seek a route to block Brexit.

Suggestions for the question of a second referendum vary, and have included the following:

  • A single two-way vote between the Brexit Deal and Remain
  • A single two-way vote between No Deal and Remain
  • A single two-way vote between accepting and rejecting the Deal
  • A single three-way vote between the Deal, No Deal, and Remain – taking second preferences into account
  • A two stage vote, the first asking Remain vs Leave, the second (if Leave wins) asking Deal vs No Deal

All of these options have their own drawbacks, and there is no consensus as to which should be pursued. Three way referendums are very unusual, and two stage referendums could lead to differential turnout problems, undermining democratic legitimacy.

  1. What should the franchise be?

Some advocates of a second referendum have argued that the franchise should be extended – for example to 16 and 17 year olds, EU citizens in the UK, and long-term British expats. Nick Clegg has even argued young people should vote twice. However, any change in the franchise compared to 2016 would raise questions of democratic legitimacy.

  1. Should the result of a second referendum be seen as final?

Supporters of a second referendum do not see the 2016 referendum as final or binding – many of them refer to it as ‘advisory,’ which is constitutionally correct but politically misleading. If the first referendum result was not final, why should the second be seen any differently? If there was a narrow vote to Remain on a lower turnout, how would that settle the matter?

 

Five questions for Brexiteer opponents of the deal

 

  1. Would any realistically achievable changes to the backstop persuade you to back the deal?

The backstop is the main source of Brexiteer opposition to the Withdrawal Agreement. Some call for it to be removed entirely; others call for it to be renegotiated to include a unilateral exit mechanism. But neither of these demands are negotiable with the EU. Negotiable changes would inevitably be less comprehensive, largely taking the form of ‘assurances’ or ‘clarifications’. Would these minor but realistic changes be sufficient, and if not are you happy to advocate No Deal?

  1. If you are so confident technology and other solutions exist to resolve the Irish border, why do you fear being trapped in the backstop?

Brexiteer opponents of the deal often insist the Irish border issue has been inflated and a customs border between Northern Ireland and Ireland could be managed with technology and other solutions. The political declaration and today’s letter from the EU does note that facilitative arrangements and technological solutions will be considered to address the border question – if a credible solution for the border can be achieved, then the UK can avoid entering the backstop in the future. If – as hardline Brexiteers often argue – European Council President Tusk offered the UK a “Canada-style” deal, why wouldn’t that still be available via the deal?

  1. If you object to the so-called Brexit bill now why did you back the December Joint Report?

Some hardline Brexiteers are opposing the deal because they claim the so-called Brexit bill of £39 billion is for “nothing”. In fact roughly half the bill is for a standstill transition, the rest is to settle accounts. It is obvious that to agree a future trade deal with the EU, the UK will be required to settle its accounts, and critics of the deal such as David Davis are keen to use the transition to agree a future agreement. In any event, key Brexit critics such as Boris Johnson and Steve Baker, accepted the December Joint Report which included the settlement of payments with the EU.

  1. If post-Brexit trade deals are so important, why are you so relaxed about trading on WTO terms with our largest market?

Many Brexiteers who oppose the Withdrawal Agreement cite the constraints that the backstop would place on the UK’s ability to implement new comprehensive trade deals (although the UK would be able to implement deals on services and investment). For some Brexiteers new trade deals are one of the main benefits of Brexit. Yet many of these same MPs are also relaxed about leaving the EU without any kind of trade deal. There is a fundamental contradiction here. If third country trade deals that go beyond WTO terms are so essential, how can trading with the UK’s largest trading partner on WTO terms be satisfactory? To put it another way, why is it vital to have an FTA with the USA (18% of UK exports), but not vital to have one with the EU (43% of UK exports)?

  1. How would the legislation necessary for a ‘managed No Deal’ get through Parliament?

Some Brexiteers advocate a so-called ‘managed’ No Deal, in which the Government accelerates its domestic contingency measures to be ready for No Deal on the 29 March. But many of the contingency measures would require primary legislation. Although Parliament may not be able unilaterally to prevent No Deal, it could make life very difficult for a government to plan and prepare for it – for instance, an amendment by Labour MP Yvette Cooper recently passed which would prevent the government from using emergency No Deal powers in the Finance Bill without MPs approval. Equally, several Conservatives have indicated they would be willing to resign the whip and bring down the Government if No Deal became Government policy. Crucial Cabinet ministers including the Chancellor and Business Secretary are implacably opposed to No Deal.