The UK has told the EU what it wants. If the EU wants a ‘deal’ it has to respond positively

At last the House of Commons has decided what it wants.  It wants to leave the EU with a withdrawal agreement (the ‘deal’) but it does not want to be bound in perpetuity by a Treaty encompassing arrangements for the border between Northern Ireland and the Republic of Ireland.  That such arrangements ever became part of the withdrawal agreement is curious – a result of political pressure.  Any arrangements regarding this border properly belonged in the second phase of negotiations on the future relationship between the UK and the EU.  Only once the UK has left the EU, according to the EU’s rules of negotiation, could discussion even begin on future arrangements.  The ‘backstop’ was inserted as if the arrangements for the border were similar to the rights granted to individuals or the debts incurred as a result of membership of the EU. It is normal that such rights and obligations are respected when a party to a Treaty decides to depart.   But the international agreement on the Irish border is not even remotely like either individual rights or debts incurred.  Both of these will eventually be extinguished.  People die and debts are paid.  They are legitimately part of the withdrawal agreement.  An international agreement between the UK and the Republic of Ireland is of an altogether different order.

The issue of the Irish border has been confected for political reasons.  At present with both Eire and the UK as members of the EU there is no physical border and no checks at that border.  But that is not to say there are no differences in the laws that govern economic life in these two jurisdictions.  There are differences in the VAT and Corporation Tax systems.  Regimes for checking animal and plant health vary – a horrible report of diseased cattle being illegally slaughtered in Poland reveals that even if there are common EU standards they may be ignored.  Not all products are subject to common rules.  Mr Varakar himself pointed out recently that fireworks are legally sold in Northern Ireland but not in Eire.  Are border checks required to enforce the law in Eire?  Not at all.  Checks, if any, are made within the territory of Eire.  And that goes for everything else.  The EU may have common rules but these are all applied and enforced within each individual member state.  Oh, but some Irish politicians are saying ‘there will be smuggling’.  That is what was said in the mid 1980s when we were told that even 1 pc difference in VAT rates would lead to wholesale smuggling.  The EU Commission concluded a few years ago that differences in VAT rates simply did not matter.

The EU seems unwilling to adjust the terms of the withdrawal agreement.  Yet, in order to ensure that Ireland voted for the Lisbon Treaty it was willing to provide it with substantial opt outs.  It is simply not the case that they cannot adjust a Treaty to ensure ratification.  It has been done frequently by adding ‘protocols’.  The EU’s negotiators  need to refresh their knowledge of their own rules and procedures and their memories of of how they got Treaties ratified in the past.


The Ghost of Edmund Burke stalks the House of Commons

The Brexit waters are getting ever muddier.  In my last blog post I called on members of the House of Commons to use their informed judgement in the public interest and not to rest their judgements entirely on sentiment and party advantage.  I did not, however, deal with the question of the role of the individual MP vis a vis those who elected him personally – his constituents.  Now, it seems, this is troubling some Labour front benchers.

It is reported that 70 Labour MPs support a second referendum.  They do so not because they believe the people are better informed or have stronger powers of judgement than themselves but because they want a different result – a vote to remain in the EU.  Other Labour MPs have their doubts about a second referendum.  Why?  Because in many cases the majority of the local electors who voted them into Parliament voted to leave the EU.  The MPs doubtful about a second referendum promised their voters they would support Brexit and fear for their seats if they then change their minds by backing a second referendum.

There are several ways to find out if the UK still wants to leave the EU and all the obligations that go with membership: a ‘people’s vote’ which if they get it wrong can be repeated until they get the right answer, a vote in Parliament, which has already taken place when Article 50 was triggered and confirmed in a general election, or a calculation of opinion based on whether or not the majority of constituencies voted leave or remain.  The trouble with this last is that the result would not be based on one man/woman one vote because the boundaries have not been adjusted for years and one vote in constituency A is worth more than one in constituency B.   But, think about this, if we were to rely on a count of constituency opinion, we would reduce the role of the MP to that of a ‘delegate’ instead of that of a ‘representative’.

The difference between these two views of the role of the MP was clearly set out by Edmund Burke.  In his famous ‘Address to the Electors of Bristol’ he rejected the idea that he was to be the mere mouthpiece of his electors.  Once elected his judgement would determine how he voted.  The Burkean view of the role of an MP is usually quoted approvingly.  But, there is a nasty twist in the tale of Edmund Burke and his relationship to the electors of Bristol.   They were not so enamoured his lofty attitude once differences appeared between them, merchants of the port of Bristol, and Burke on the subjects of free trade and Catholic emancipation.  Within a few short years the electors of Bristol rejected him as their member.  That, is precisely what some Labour MPs fear – if they vote in the House of Commons for things that are against the views of those who elected them they will, at the next election, lose their place.

At present there seems to be no way out of this impenetrable maze.  The Prime Minister has run out of ideas and the Leader of the Opposition is floundering around, very weakly, like a fly caught in a spider’s web.   International Treaties should be negotiated between governments (and international organisations) following a mandate from the electors.  Letting a numerous assembly into the process can never work as John Stuart Mill explained in his classic text on Representative Government,  Brexit is indeed a test of the British system of government.


So, What Next?


I was clearly on the losing side in the vote on the Withdrawal Agreement from the EU.  The Withdrawal Agreement was shot down by a clamour of conflicting voices. Our MPs knew that they did not like the Agreement but their reasons for disliking it were wildly different, based in many cases on ignorance both of the EU and how it works and of the terms of the agreement before them.  How many of our 600 plus MPs had read the 585 pages on which they passed judgement?  Some of those who voted against it thought it ‘bad’ because it kept the UK too close to the EU, some that it would place the UK too far from the EU.  Some thought that it kept the UK subject to EU law, some that it meant that the UK would deviate from EU law on employment and the environment.  Above all, a large number of MPs objected to those elements of the agreement implying permanent special arrangements for the Irish border.  Many of them muddled up the terms of withdrawal with the future terms of the UK’s relationship with the EU.  Close examination of the Hansard Records by future scholars searching to explain the vote will reveal a kaleidoscope of largely uninformed views.  As a whole the House of Commons threw out what was on offer but made no constructive suggestions for alternatives.  It is hardly surprising that the general population is losing trust in its elected representatives.

We must remind ourselves that not only did the people as a whole vote to leave the EU but the House of Commons voted overwhelmingly to trigger Article 50 and then in a general election the major contenting parties all promised to respect the result of the referendum. Few voters opted for parties that promised to reverse the result.   The first question the House of Commons must now address is ‘is the House still sure that it wants the UK to leave the EU?’   Then, after a week in Committee (perhaps of the Whole House supported by Select Committees working in tandem) the House should, section by section examine the Withdrawal proposal.  It should vote on each section in turn so it is clear which parts of the agreement on withdrawal are acceptable or unacceptable just as it would in respect of any major item of legislation.   Before voting all MPs should be required to read the terms of departure – all 585 pages so that they, avoiding accusations made against voters in 2016, can confirm that they were fully ‘informed’ before making a decision.   While judgement as to what is best in the national interest may be based to some degree on sentiment that judgement should at least be based on an understanding of what is on offer.  Once it is clear what the UK House of Commons does want in the withdrawal agreement the government can take its conclusions back to Brussels.  For once the EU negotiators have a point when they complain that the UK does not seem to know what it wants.

The members of the House of Commons need to be reminded over and over again until they understand the point – once they accept that the UK will leave the EU two separate decisions have to be made.  The first is the terms of the UK”s withdrawal.  The second is the terms of the UK’s future relationship with the EU.  These two decisions need to be clearly separated.  As for the future relationship there is much loose talk of customs unions.  There is need for precision here.  There is a big difference between being a member of the EU’s customs union – an arrangement made internally a decade after the adoption of the Treaty of Rome  – and being a member of ‘a’ customs union with the EU.  Turkey has ‘a’ customs union with the EU which notably excludes agriculture and services.  The UK could agree ‘a’ customs union with the EU covering manufactured products which represent almost all the intra EU trade – notably vehicles.  That would satisfy the demands of big business and its unlikely new spokesman in Parliament, the leader of the Opposition.  But ‘a’ customs union or any other trade deal with the EU can only be discussed with EU negotiators after the UK has left, and they have warned us off ‘cherry picking’.   It is time for someone to bring logic and clarity into the heated atmosphere of uniformed declamation which has characterised the last few days of non-debate in Parliament.


Decision Day

Tomorrow the UK’s House of Commons votes on the ‘Withdrawal Agreement’ brought back by the Government from its lengthy negotiations in Brussels.  It is widely expected that it will be rejected.

What would I do were I a member of the House of Commons?  I voted ‘Remain’ after changing my mind day by day before the Referendum.  Were I asked again I would vote ‘Leave’.  The EU is not working for the benefit of the peoples of its member states but in the interests of its own future.   Dreams of a European state have not disappeared – the President of the Commission is even now pressing for the abolition of the national veto on tax proposals.  In its present form the EU is not a well functioning organisation.  The single market is a dangerous myth because it promises what it cannot deliver.  A single European market for all products and services is unattainable and undesirable.  The single market is primarily useful for vehicle manufacturers and their industry is, like coal and steel in the past, in a perilous state.  New technology will transform the way we move around by the end of the century.  This requires diversity rather than unformity if new products are to be developed and sold within the European space.

Never, never, never believe that the EU’s single market has delivered on its promise of more growth and jobs.  Italian GDP per capita is now actually lower today than 20 years ago, for example.  EU unemployment, particularly among the young, remains high.

I voted remain because at heart I am a European, not a North American or an African.  The EU was a good idea until it got too big for its boots.  Free trade may have advantages but all the add ons, notably the Euro, have had adverse rather than positive effects.  Reform of the EU seems impossible.

But, what about the agreement on the table?  How bad is it?  I have read but a few of its 585 pages (several only have one paragraph to be fair).  The worst bit is undoubtedly the Irish Backstop.  But even here there is hope.  Whatever the UK House of Commons decides tomorrow it cannot bind its successors.  That is the essence of our Parliamentary sovereignty based on the sovereignty of the people.  In twenty years time circumstances will be quite different, the people will have different views, they will convey those to their representatives who, using their judgement, will decide on ‘great matters’.  Whatever the words on the withdrawal agreement concerning the Irish border by then the EU will have changed, the Irish may have decided to unite or we may be at war.  Who knows?  I would vote for the agreement subject to caveats reaffirming the sovereignty of the British people.  There is a huge pile of defunct Treaties and an unacceptable commitment on the Irish border could well join it.

Above all, the tower of Babel that is the House of Commons is talking about the wrong thing.  All they have to do tomorrow is to agree on the terms of withdrawal.  Then, and only then, they can debate until they drop the many different versions of future arrangements including those for the Irish border.  The EU insisted on sequencing.  The House of Commons has muddled the two parts of what has to be agreed – how we leave, pay the bills and respect accrued rights (always a big issue in Treaty law) and what we do next.  There will be nearly two years in which the MPs can shout at each other about our new relationship with the EU.  Tomorrow is not the time for that.