11 April 2019

Is a second referendum Brexit’s last hope?


“When seventeen and a half million voted to leave, that was a revolutionary act,” Geoffrey Cox, the attorney general told Nick Robinson last week in what, to the ears of this listener, was the most thoughtful, eloquent and sensitive reflections on Brexit by any minister. “It was a step that was designedly taken by those millions to break what existed and to move into something new.”

Revolutions beget counter-revolution and the forces of reaction within Parliament have fought Brexit to a standstill. “The government will implement what you decide” were words on the government’s referendum leaflet that ring hollow now that Brexit hangs by the thread of Labour’s willingness to do what the government promised and implement what voters decided.

The political incentives for Jeremy Corbyn to rescue Brexit are mixed, to say the least. As an inducement, the government is dangling the carrot of Britain being permanently locked into the EU’s Customs Union. It is a strange sort of vegetable. In reality, the backstop already consigns the UK to the Customs Union and gives the EU the key to the cell door. The puzzle as to why the Prime Minister so readily accepted the all-UK backstop has a straightforward explanation: she wanted de facto membership of the Customs Union but lacked the honesty to say so.

The existence of the backstop forecloses the possibility of Britain having its own trade policy and keeps us permanently and tightly aligned to EU rules and import taxes. For the Prime Minister, conceding the Customs Union therefore makes a great deal of political sense. It’s something she wants anyway, but kept her silence for reasons of party management, a concern made otiose by her offer to resign if her deal is passed.

For Jeremy Corbyn, the trade looks more challenging. Being bound to the Customs Union means abiding by EU competition rules and rules against state aid which, in the eyes of the Left, constitute the twin neoliberal pillars of the EU they loathe. It’s reasonable to suppose that the Customs Union carrot is not one the Labour leader wants, but has to be seen to go through the motions demanding it. Getting a green light for Brexit therefore depends on Corbyn accepting something he doesn’t value in return for the certainty of substantial political cost by angering the best-organised, most vocal part of Labour’s base.

In any case, the Customs Union debate is not about whether compulsory membership would promote or constrain Britain’s national interest. It is totemic, a sign of which side of the Remain/Leave a politician divide is on. This was made embarrassingly plain by Ken Clarke’s mauling at the hands of Andrew Neil. It showed the former chancellor was all bluster and didn’t have a clue about the policy he very nearly got through the House of Commons.

The Customs Union is better seen in psychological terms. In child psychology, a transitional object is a physical object, often a doll or a comfort blanket, that helps children begin to make the emotional journey from dependence to independence. The Customs Union does this in reverse. It helps shield Remainers from the reality of life outside the EU. In his troubled interview with Andrew Neil, Clarke claimed that after Brexit, Britain would still be one of the three largest economies in the Customs Union and therefore given a voice at the table on EU trade deals.

Conceivably spelling out what is already implicit in the backstop will be enough to get the Withdrawal Agreement over the line. But the longer it hangs in limbo, the more evident it will become that it is a poison pill, freeing a future Conservative leader to blame Labour for shackling the country to it. As things stand, the fate of Brexit depends on Corbyn falling into what he has reason to see as a Tory trap of getting Labour to explicitly lock Britain into perpetual Customs Union membership. If Labour does not, the last remaining door out of the EU closes. Parliament will have acted to nullify the result of the 2016 referendum. Suspension or full revocation of Article 50 would be the likely consequence.

This would represent a calamitous failure by the Prime Minister. But blame is also shared by the EU. Michel Barnier and his team imposed an onerous withdrawal agreement that might as well have been designed to destroy May’s parliamentary majority. Strategically intelligent negotiators would have seen what was coming and adjusted the backstop protocol. Instead the EU has been intransigent, demanding what the British government cannot give.

This reflects the EU’s relative strength in the negotiations and its strategic weakness. A strong, self-confident EU would not have felt threatened by the decision of one of its members to leave. It is unsurprising that France’s President Macron has been the most militant European leader against EU flexibility. There’s also a structural reason for the EU’s negotiating rigidity that goes to the heart of its weakness as a super-state and, ultimately, why Britain is right to leave.

In his 1989 classic, Taming the Prince, the political philosopher Harvey Mansfield drew from Machiavelli and a state’s need to be ruled by a strong executive, uno solo. The “many” are not adept at ordering things, Machiavelli wrote, “since they do not know what is good for it, which is caused by the different opinions among them,” an observation amply borne out by the shambles of the Commons indicative votes and the Letwin-Cooper-Bercow coup to usurp the executive.

Mansfield writes that the American constitution established the first republic with a strong executive consistent with republicanism. In diplomacy, an American president can act with suppleness and imagination. In contrast to the American constitution’s uno solo chief executive, the EU has many princes. The EU substitutes for this absence with an exhaustive, bureaucratic process to arrive at a common position. Once agreed, it is set in stone and negotiations risk becoming a prisoner of the EU’s negotiating mandate.

The value of a strong executive in resolving international tensions can be seen in the Alabama Claims crisis of 1869. The Alabama was a British-built warship that inflicted immense damage on Union forces during the American civil war. Members of Congress demanded Britain make a humiliating public apology, billions of dollars in reparations and the secession of Canada. There was even talk of war. A congressionally-imposed negotiating mandate would have prolonged the crisis and possibly put paid to the Anglo-American amity that was indispensable to freedom in the 20th century. Instead President Grant dropped the most extreme American demands, agreed to a joint commission with Britain that subsequently agreed to binding arbitration set by a five-man panel, three of whom were nominated by neutral states. The lessons this episode holds for a way forward on the Irish border question are obvious.

It is Britain’s grave misfortune that, at this juncture, it has an executive who now competes for the title of worst prime minister in British history. Her one job was to do Brexit. A “no” from Corbyn will set the seal on parliamentary nullification. In effect, Britain’s rulers would be saying that implementing the decision voters made in the 2016 referendum is against their interests. At that point, the options to break the deadlock are to return the question to the people via a general election or hold a second referendum.

Understandably, but a tad dishonestly, Remain supporters are pushing for a referendum on May’s deal or Remain. The dishonesty arises because it is two questions rolled into one: “Remain or Leave?” and “Do you approve of May’s deal?” Asking voters to endorse a deal made by a prime minister who has promised and thrice rejected by the House of Commons is a question posed in poor faith. Rather than press the pause button, it would be better for both the UK and the EU to go for a full reset and repeat the question asked on the 2016 ballot.

Supporters of Brexit need to prepare for a second referendum and, in due course, start advocating one. It could turn out to be their last chance.

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Rupert Darwall is the author of 'Green Tyranny'.