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The curious incident of the ERG at Christmas 2017

October 5th, 2019

Johnson Tweet from December 2017

The dozy reaction to the Joint Report has misframed Brexit ever since

Why does a dog not bark when by rights you would expect it to? There are only two reasonable explanations: either it sees no reason to, or it’s been prevented from doing so. A guard dog might, for example, not raise the alarm if the burglar is well-known to it – though that’s not the only explanation, even if it is the most famous. It might be that the dog has been drugged, or muzzled, or removed from where it should be, or somehow otherwise distracted from that to which it should have been paying attention.

Far be it from me to compare Brexit to a burglary or the ERG to barking dogs but there is method in it. Brexit is in the mess it is for many reasons but one of the principle ones is that the government pursued a deal which fell grossly short of achieving anything like a majority in parliament – and that by the time it did fail, so many key players were so publicly committed to so many aspects of it that it cannot be meaningfully re-written.

How did it come to that? One overlooked aspect has to be the final negotiations around the production of the Joint Report in December 2017, which formed the basis of what would become the both the Chequers Plan and, ultimately, the Withdrawal Agreement. In retrospect, everything that the Commons objected to last Christmas was in the Report the year before – yet there was no barking? Why not?

It’s a question I find difficult to answer. Key individuals who would later turn extremely hostile were signed up to the Report. Steve Baker – now ERG Chairman and three-times rebel on the Withdrawal Agreement – was a minister in DExEU in December 2017 and happily let it sail through. Boris Johnson, Foreign Secretary at the time, tweeted his congratulations on a deal that was “taking back control of our laws, money and borders for the whole of the UK”. In fact, in paragraphs 49 and 50 of the Report, it was perfectly obvious that Britain was signing up to indefinite alignment with the EU’s Single Market rules and Customs Unions tariffs and policies. How did the ERG miss this?

 

I can only offer two explanations, neither of which is very satisfactory. The first is that the DUP were satisfied with the Report, having made vocal objections in the days running up to the summit and secured changes in response to those objections. That produced the all-UK backstop rather than an NI-specific one. In paying too much attention to the DUP, the future Tory rebels presumably missed that the DUP’s objections were based on Unionism rather than Euroscepticism – hence why the DUP was happy to accept the all-UK backstop, which resolved their concern of an Irish Sea border.

The other explanation is simply that it was happening at Christmas and people were distracted. It’s easy for political commentators (or academics, journalists and so on), interested in a topic to assume that those making the decisions at the time were similarly overridingly concerned by it. Some perhaps were but MPs are busy people and have both political and social commitments beyond Brexit.

Whatever the reason, the Tory Eurosceptics’ failure to bark in December 2017 was a catastrophic silence. Both the then-PM and the EU must have taken from the lack of MPs’ hostility that there was the basis for a deal that could get through parliament. The elements in the Joint Report would be hard-coded into the process and produce the doomed Withdrawal Agreement, to which the EU is still strongly attached despite it clearly being all-but dead in the UK.

What might have been the alternative had they howled? It is of course impossible to give any definitive answer but there were two clear paths open, though both held many obstacles to success. The first would have been for May to have adopted a closer Brexit arrangement with the EU, with the open backing of Labour MPs. The second would have been to have charted the other side of the rocks upon which her Deal foundered, and done what Johnson has subsequently tried.

The problem with these different alternatives is that they might well not have worked either. May did try, in the aftermath of the third defeat of her Deal, to try to strike an arrangement with Labour and not only got nowhere with it but the process cost her her job. Perhaps there would have been more goodwill earlier in the parliament, or if she had tried to attract individual MPs rather than Labour as a party, but I’m still sceptical the numbers could have added up, or that she could have accepted policies which meant giving up the immigration controls so dear to her political heart.

On the other hand, had she immediately moved to the Brexiteer right to secure that flank, she would just have ended up in the same position that Johnson is in now, with no more guarantee of getting a deal than he has (and perhaps less, given that her Brexit team would have been temperamentally unsuited to such a position).

All the same, bringing matters to a head 12 months earlier, when there was still more than a year and a quarter to the Brexit deadline and when parties were not so publicly committed to draft agreements, would have given breathing space to readjust.

That, however, is history. What happens next?

The pretence that the EU will not re-open the Withdrawal Agreement has clearly now been dropped, though that doesn’t necessarily imply any change in its underlying negotiating position but Johnson’s proposals do cause the EU a tactical problem.

The European Council will be reluctant to reject the Johnson paper outright, both for the optics and for the consequences. Failure to reach an agreement will trigger the Benn Act’s provision to request an extension but in the absence of any basis for extension, what’s the point? The EU doesn’t want a hard Brexit and certainly doesn’t want to be responsible for one (or to risk being seen as such), so that implies it will do its best to offer an extension and, as such, will find a reason to do so. I suspect that the lateness of the delivery of the UK’s proposals and the vagueness of the language will give sufficient grounds to refer it ‘for technical analysis and further negotiations’, or some such process.

That would give Johnson a fig-leaf to cover the necessity of an extension – the lack of a rejection of his plan, painful though that may be to some in the EU – though it would clearly scupper any chance of an October 31 exit.

In reality, what the EU would be doing would be providing time for a UK general election, a change of government and a change of policy but obviously they couldn’t say that publicly. Such an election is clearly looming and a Brexit extension is the key to unlock the door to one. I’d expect it on either November 28 or December 5, with the latter the more likely.

I’d also anticipate a longer extension than the Benn Act provides for. There is an EU Council meeting scheduled for December but that’s too soon after an election to table papers, digest them and reach tentative agreements ahead of the summit. More likely is a timetable focussed around the March 2020 meeting, with perhaps a month or so to ratify any agreement reached, implying something like April 30 as the new deadline. Clearly, if Johnson is successful in the election, there’ll either be a No Deal outcome or a serious revisiting of the EU’s priorities. Alternatively, the process would be even more fundamentally reset.

This, of course, assumes no further dogs dozing on the job.

David Herdson