The Corner

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Saving Brexit

Britain’s Prime Minister Theresa May visits the Royal Welsh Show in Llanelwedd, Wales, July 26, 2018. (Christopher Furlong/Pool via Reuters)

Every day seems to produce another item in Theresa May’s continuing betrayal of her promises on Brexit and the referendum. Here are the opening paragraphs of a front-page story in yesterday’s London Times to illustrate rather than (needlessly) to prove the betrayal:

Britain has privately conceded that EU judges will be legal arbiter of disputes over payments to Brussels and the residency rights of more than three million European citizens.

In an attempt to break the deadlock in a key part of the negotiations the government has agreed to give the European Court of Justice (ECJ) the final say in the arbitration of arguments over the working of Brexit and any disputes over Britain’s £39 billion bill.

EU judges will also have the final say over a Irish border “backstop” if the trade deal between Britain and Europe leads to frontier checks.

Brexiteers said that the concession was another climbdown by Theresa May.

Is “climbdown” the right word, however? It implies a reluctance to agree and a submission to force majeure. What evidence is there that May and her cabal of advisers feel any reluctance or that they are bowing to necessity rather than making a series of deliberate choices? The language of submission seems designed to deceive their supporters in Parliament, namely the Brexiteers, and in the country, the great majority of Tories, rather than to outline a prudent route to U.K. independence. Whatever the psychological motives behind this latest concession to Brussels, however, it is unmistakably a betrayal of May’s repeated “red line” that she would take Britain “out” of the jurisdiction of the ECJ. Of course, her Chequers package for a No Brexit Deal (not to be confused with a No Deal Brexit) had already erased two of her other major red lines. If the Chequers plan ends up being the basis of a final settlement, Britain will be “out” of neither the single market nor the customs union. Yet only two days before the Chequers cabinet meeting, May had declared in the clearest terms that the country would be “out” of all three — and others too.

This extraordinarily comprehensive list of lies is finally prompting those who favor Brexit, including a large majority of Tories, to confront the fact that the May government is seeking to keep Britain in the EU in all but name and that it may well succeed in doing so. There is accordingly a sudden rush of articles asking the question: How can we save Brexit? Naturally, there are several possible answers to this question from leaving the EU without a deal in order to trade under World Trade Organization rules to remaining in one of the half-way houses to Brexit, such as the European Economic Area. (None of these routes, incidentally, include the Chequers deal which only Remainers now support.)

I remain agnostic about which route to take. My opinion is that the WTO route would be the best one in economic terms, providing disruption in the short term but long-term opportunities for greater prosperity in the long term, but politically hard to sell when the Remainers control most of the forums of debate. Unless those politics change, I’ll be compelled to accept the argument long made by Andrew Stuttaford (and repeated yesterday in this space) that we will have to accept a Brexit-in-installments, leaving the EU but remaining in the EEA through EFTA. (I write this through gritted teeth, which is no easy task.) Andrew’s political argument was supplemented yesterday by an analysis concentrating more on the economic details by Rupert Darwall for the London Spectator. Here’s the nub of his argument (my comments in square brackets):

Once Brexiteers accept that the Prime Minister has made such a disastrous hash of the negotiations that Brexit will not be achieved all at once, the path out of the current morass will be clear. The obvious first step in a two-stage Brexit is to default to the EEA, a step advocated by the former foreign secretary David Owen. Replying to Lord Owen’s suggestion that the UK use the EEA as an interim measure, the Prime Minister wrote to Lord Owen in February saying she wanted to agree the interim period through the Withdrawal Agreement, not use the EEA.

It was a bad call. Getting EU agreement enabled the Commission to extract its pound of flesh in the form of the £39bn exit fee and impose its impossibilist conditions on the Irish border question. In her letter to Lord Owen, she justified this with the misleading [i.e., Mr. xxx’s polite Tory euphemism for “false”] claim that the UK is a member of the EEA solely by virtue of its EU membership. The truth is that the UK is a contracting party to the agreement establishing the EEA in its own right. Because defaulting to the EEA requires only the approval of the EFTA members to borrow the EFTA governance pillar of the EEA, it cuts the Commission out of the loop, enabling the UK to regain its negotiating freedom . . .

EEA membership does not entail Britain paying a penny into the EU budget. The EEA Financial Mechanism provides for direct payments to EU member states in Central and Eastern Europe, bypassing Brussels altogether and strengthening the UK’s negotiating hand in any Phase 2 negotiations. According to calculations by Oxford economics professor George Yarrow, Britain’s annual payments under the Financial Mechanism would be of the order of £1.5bn: a trivial amount in the scheme of things [in contrast to the 39 billion exit payment under Chequers].

For many, freedom of movement is the biggest problem with the EEA. Yet the so-called Implementation Phase [under Chequers] will see untrammeled freedom of movement. By contrast, Article 28(3) of the EEA Agreement declares that freedom of movement can be unilaterally subject to limitation on grounds of public policy.

We shouldn’t accept these arguments from Andrew and Rupert without questioning, and we need not adopt this particular route to Brexit (Norway) from among the various alternatives (e.g., Canada Plus.) Enough has been written, however, to establish without any doubt that the Chequers deal is unacceptable and probably DOA by now, so that a new discussion can start on how to leave the EU in terms that are most favorable to Britain and still most persuasive to U.K. public opinion.

As both my correspondents helpfully point out, however, there is a major obstacle to this development, namely Theresa May. She is plainly determined on remaining in the EU on debilitating terms and willing to use any power or deception to succeed in doing so. She has establishment and cross-party Remainer support in this, but it’s increasingly clear that she is opposed on it by the majority of her own party (as predicted in January by this column). Forty-five per cent of Tory respondents to the ConHome website now say that they want May “out” of office now, and most of the rest want her “out” before the next election. If you understand the Tory party’s deep reserves of loyalty, you will know that’s almost unanimity. It’s reflected, moreover, in national polls which, in addition, show the Tories falling about 5 percent behind an unpopular and divided Labour party and the rise of UKIP from the dead to feast on ex-Tory voters. Tory constituencies report that their activists are now bitterly hostile to May and frequently describe her policy as a betrayal. Some Tory members are leaving the party and ripping up their party cards, it’s reported, while others are joining it in order to oppose her.

Getting rid of her is vital for two reasons. First, while there, she is an obstacle to getting the rethink of Brexit that’s necessary. She’s clearly the Remain leader of a Leave party. Her presence weakens and divides it on every matter. Even if she agrees to abandon Brexit — which is unlikely — she will be able to wreck or weaken any successor policy. Second, if she’s still Tory leader when an unexpected or “accidental” election occurs, she and her cabal will be in charge of writing the Tory manifesto. That could and probably would lead to a manifesto that on Brexit would be half-hearted, ambiguous, and deceptive at best. It would guarantee a Tory defeat. And on non-Brexit matters? Just remember what happened last time.

Yet only MPs can “de-select” her as Tory leader and prime minister. And they seem panicky and fearful of doing anything in the current atmosphere. Here is my suggestion to give them the necessary courage. Let all those Tory activists who feel betrayed by May and fearful of continued betrayal by her or a Remainerish successor establish local “ginger groups” for intellectual political debate in their districts. They might call these bodies Independent Conservative Associations. Once operating, they would submit the products of their discussion to the local party chairman and Conservative HQ on a regular basis to show them how ordinary Tories were feeling. In any election they would naturally join in the campaign to elect or reelect the local Tory MP — unless, of course, the MP had a record of voting either Remain or being insufficiently enthusiastic about Leave. That would pain them greatly. They might even feel it incumbent upon themselves to put up an Independent Conservative candidate and canvass reluctantly for him.

There’s no point in appealing to the finer feelings of the Tory establishment. It doesn’t work. Fear is another matter.

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