For all its faults, May’s Brexit deal might be the best option Leave MPs have

17 December 2018 5:18 PM

Theresa May

Several cabinet ministers have publicly backed a series of indicative votes in the Commons on the various Brexit options. I understand why, but they’re wrong: this approach is both messy and misguided. The best thing for MPs is to spend their Christmas break thinking carefully. Those who have criticised Theresa May’s Brexit deal should carefully think through their opposition. It’s my view that reports of the death of May’s deal are greatly exaggerated. It’s obvious there are only now three real options when it comes to Brexit: Leave with no deal; Leave with May’s deal; or, don’t Leave.

Every possible path falls into one of these three boxes. Managed no deal (whatever that is or isn’t) is a way of dressing up no deal with a nice bow. ‘Norway Plus’ entails leaving with May’s deal and seeking to add commitments to building a closer future relationship. Labour’s Brexit policy, if it has any coherence at all, would still require a backstop. And if you’re going to do that, you are looking at something close to May’s deal, with extra promises in the Political Declaration. A general election or a second referendum could result in cancelling Brexit.

The penny seems to be dropping for a considerable number of Leavers. I’ve been really stuck by how many are telling me that they are ‘coming around’ to May’s deal. Take the Telegraph‘s Allison Pearson, who has said that ‘the perfect outcome is no longer within reach. Something which ticks several boxes and which we can build on is preferable to… being manoeuvred into a second referendum’.

Broadcaster Iain Dale appears to share this view. He told Politics Live he ‘didn’t used to think this’ but is ‘coming to the conclusion’ that we just need to get the hell out – by which he meant accepting the deal. A top Tory grandee I spoke to, who was previously very hostile to the agreement, is now more sanguine and thoughtful about the deal’s benefits as well as its drawbacks. He recognises that in the wake of the failed coup against Theresa May, the options have only been narrowed further. There are others, too: Conservative Home’s Paul Goodman – certainly no cheerleader for the deal – has said it ‘almost works’. His still has reservations about the backstop but his comments are a sign that hearts are softening. I’ve also spoken privately to lots of other journalists and think tankers from publications and outfits pumping out attacks on the deal. Several of these have said to me privately that they would reluctantly back the deal. But bashing it makes good copy or is what donors and readers want to see, and so their public utterances tend to be less measured in tone.

Of course, there are clear problems with the deal which Downing Street too often tries to gloss over these, by conflating aspects of the agreement (the transition; backstop; political declaration). But while it is right to look at the pitfalls, we shouldn’t just focus on the negatives. And we need to consider what is actually realistic given the Parliamentary arithmetic and the concerns of Brussels.

For example Martin Howe’s excoriating attack on the Brexit deal in the Spectator failed to mention several home truths. It is true that the political declaration on our future relationship with the EU is not legally binding. However the EU’s position for nearly two years has been that we could only negotiate a binding divorce deal during Article 50. It would be lovely to have a treaty on our future relationship now. But that hasn’t been on offer for months. Martin attacks the arbitration panel for referring matters of EU law to the European Court. Yes, this isn’t ideal (and our negotiators should have sought a binding referral to the UK Supreme Court on matters of UK law). But the EU believes in the autonomy of EU legal order. This means they won’t accept any other court opining on EU law. You and I may think that is silly or reasonable. But it’s a fact. So if you want any sort of judicial arbitration mechanism for the UK you were probably going to have to accept that EU law matters would have to be referred to the European Court. This sort of crucial context is nowhere in Martin’s article.

My view on the deal has certainly evolved. When the deal first came out my visceral response was very negative. Problems immediately jumped off the pages. But I had also accepted long ago that we were going to have some sort of backstop, whether we like it or not, as well as some sort of hybrid position for Northern Ireland. And I thought the General Election result last year put a big question mark over a customs union, however much I’d like to have immediate control of our trade policy.

Even though Brexit is literally my day job, I think it is also important to be honest enough to admit that I don’t think I understood some aspects of how the backstop in the deal itself actually worked for some time. It wasn’t till a week after the deal was published that I noticed some pretty key stuff. For example, the UK can in the backstop resist new goods regulations from applying, even in Northern Ireland. I felt pretty dumb when I first realised this until I rang round a few key Brexit-watching journalists and discovered they hadn’t noticed that either. There are other things which aren’t crystal clear in black and white, but which, for example, would allow the UK to mount an argument against the EU giving away access to our markets without our control.

Which takes me to another point: Downing Street have been very bad at selling their own deal. But perhaps more damagingly they failed really to define it at all when it was first launched. This meant the deal was defined by its critics and – in the public eye – by Cabinet resignations including that of a second Brexit Secretary.

On the other side we see all kinds of odd conflations and confusions from critics of the deal. Some of these critics are still fighting Chequers [Chequers is nothing to do with the Withdrawal Agreement and little to do with the Political Declaration]. But while some of their criticisms do still stand, they must realise the basic fact remains that there are only two options for getting us out of the EU: Leave with May’s deal (whether tweaked or not); or Leave without a deal.

With all paths currently looking to be impossible in the Commons, I feel that the chances of May’s deal ultimately passing are underpriced. It’s the only deal on the table. It is the only safe path out the EU. And if May can get a little more on the backstop, and offer some mechanism to engage a Stormont lock, we might nearly be there. Labour may try to cause chaos by pushing the Government to no deal. But if that happens I suspect their moderates will ultimately break away and let the deal pass. Slowly, slowly, Downing Street may ultimately get their way and then we can get on with deciding what we want to do with our newly-won freedoms.