I’ve been thinking about this for a while. Perhaps I’ve read too much Tony Blair, and absorbed the idea that there’s always a ‘third way’ somewhere. I think there is a form of Brexit that gives both Leavers and Remainers something that they want. I call it Medium Brexit.
Medium Brexit might also be called ‘hard in theory, soft in practice’ Brexit, but that’s a bit wordy. It involves all the trappings of hard Brexit – leaving the Single Market and Customs Union, removing the UK from ECJ jurisdiction and ending free movement of people into the UK from the (rest of the) EU.
At the same time, it also involves using the UK’s new-found independence judiciously. Having the right to ban all EU citizens from coming to work in the UK, but using it sensibly. Having the right to deviate substantially from EU regulations, but doing so only where it truly offers benefits that outweigh the costs – including the costs of increased barriers to entry to the EU market, and the costs of establishing a hard border on the island of Ireland. No longer being subject to ECJ oversight, but retaining existing jurisprudence and giving the Supreme Court the right to draw on ECJ judgements in determining its own stance.
Medium Brexit gives the Leavers much of what they want. Not necessarily a dramatic change in policy, but a repatriation of previously pooled sovereignty. Parliament would have the right to copy or to ignore new EU regulations. The Courts would have the right to emulate or set aside ECJ decisions. Ministers would have the right to admit or to exclude EU workers, to direct them towards sectors with specific needs – like agriculture, science, finance and healthcare – and to deny them whatever benefits they choose, but would not be obliged to do anything unless they thought it best for the British economy and for British society.
Medium Brexit also offers Remainers some of what they want. In particular, it leaves considerable room for regulatory alignment with the EU, avoiding a race to the bottom in areas like workers’ rights and environmental protections, and allowing European co-operation in areas currently working well, like financial and medical regulation. It would allow for movement between the UK and the EU – not unfettered movement, but not the travel bans and mass deportations of some nightmare scenarios. It would minimize – again, not necessarily eliminate, but perhaps reduce to a tolerable level – the need for border controls between Northern Ireland and the Republic of Ireland.
Theresa May’s biggest mistake was treating the question of what Brexit should mean as one she should answer alone. She should have consulted, openly, widely and for as long as it took to thrash out a compromise vision. Had she done so, we might have wound up with something that looks like Medium Brexit. Hard in terms of sovereignty, soft in terms of divergence. Not perfect, by anyone’s criteria. But perhaps acceptable to a majority – unlike anything May has come up with alone.
In this series of posts, I hope to try to think sensibly about Britain’s vote to leave the EU. Too much of the debate remains dominated by mad shrieking about ‘enemies of the people’, by a post-truth paranoia about elites undoing the referendum result that simply isn’t borne out by evidence or events. We can and must do better than this if we are to do justice to the competing demands of Britain’s divided voters, while delivering the best possible outcome for the Brexit process overall.
I want to begin today with a fundamental point. Brexit means Brexit, as Theresa May regularly says. It is true that May’s rather gnomic comments on the subject deliberately downplay the range of ways Britain could leave the EU, the complexity of doing so and a great deal of uncertainty about what happens next. But the critical dimension is crystal clear. Britain held a straightforward ‘in-out’ referendum on its continued EU membership, and the majority of voters voted ‘out’. Britain is going to leave the EU.
Much of the argument around the pending Supreme Court verdict on parliament’s involvement in triggering Article 50 centres around failures on both sides to accept this statement as true. Some ‘remain’ voters hope MPs, the majority of whom backed ‘remain’, will reverse the outcome of the referendum. Many ‘leave’ voters, who make up a majority of the constituents of a majority of MPs thanks to the clustering of ‘remain’ voters in the cities, fear exactly the same outcome, and cry foul. There are two points worth making here.
First, the Supreme Court is likely to rule in favour of Gina Miller’s challenge, upholding the High Court’s verdict that the government must allow some sort of parliamentary vote before notifying the rest of the EU that it intends to exercise the right enshrined in the Lisbon Treaty of member states to leave. Miller’s case is straightforward. Triggering Article 50 takes Britain out of the EU after two years whether a deal is done or not. Leaving the EU will deprive British citizens of a series of rights currently enshrined in British law but derived from Britain’s EU membership, including specifically the right to vote in European elections. Though an elegant solution in other ways, the government’s so-called ‘Great Repeal Act’, which rather than repealing anything will in fact transpose the entirety of EU law into UK law so parliament can choose which bits to keep and which to repeal rather than having to start from scratch, does not get the job done on this front. While the power to make and unmake treaties remains vested in the government through the ‘royal prerogative’, it is a principle of English law that royal prerogative cannot be used to remove statutory rights from citizens. That, to be clear, is probably a good thing. The government has argued that involving parliament necessarily restricts the operation of the prerogative in an area that falls very much within the usual ambit of prerogative powers, but realistically the court is likely to come down on the side of the citizenry in this case.
Second, MPs are unlikely to prevent the government from triggering Article 50. One thing we have learned from the gradual growth of parliamentary powers in the realm of military combat deployments is that MPs are actually willing to judge individual cases presented to them on their respective merits. Despite lingering (and justified) concerns about the merits of military intervention left over from the disaster of Iraq, they are still willing to approve the use of force to meet clear objectives, as part of a multinational coalition and without incurring unnecessary risks. MPs are acutely aware of the fact that most of their constituents voted to leave – Zac Goldsmith’s defeat by a pro-EU Liberal Democrat candidate in Richmond notwithstanding. They know they will be challenged by UKIP at the next election if they fail to respect that balance of views. But they also know that, as I have said, there are multiple ways of leaving the EU, the process is complex, and reaching an outcome acceptable to many, if not most, British people will be hard. They will vote for Article 50 provided the government sets out a reasonable plan, giving some indication of its preferred end result, negotiating priorities and approach.
This is not an unreasonable thing for MPs to request. Most ‘leave’ voters, if they think about it, are likely to agree that the government should come up with a plan, identifying desired outcomes and deciding which areas to prioritize. We can probably come up with a rough approximation of what the government’s negotiating objectives are likely to be. This is my best guess:
Britain would like to retain maximum access to the single market and is willing to accept that will mean following rules set by the other EU states and making a financial contribution to the EU budget. In practice this is likely to look more like a third-party free-trade deal than the so-called ‘Norway model’. That means it will involve sector-by-sector agreements rather than unfettered single market membership. EEA membership may offer an acceptable transitional model on the economic front, but will be acceptable only subject to the next point about immigration.
Britain must have the right to impose restrictions on immigration from within the EU, and will give up single market access if necessary in order to secure that right. It will accept the loss of British citizens’ rights to live and work freely elsewhere in the EU. It may explore the possibility of some sort of system of exemptions, perhaps allowing more liberal arrangements for people under the age of 26, or for a limited period of time (e.g. along the model of the Tier 5 Youth Mobility Scheme visa).
Britain would like British citizens resident elsewhere in the EU and EU citizens resident in the UK at the time of the referendum to retain their respective rights to live and work where they are. It would also like to minimize the costs associated with moving between the UK and EU for both work and pleasure in future.
Britain would like to continue to work in close partnership with the EU in areas of mutual interest, including trade, international development, environmental policy, counter-terrorism, policing and international security. It is more than willing to pay its way, and it has considerable expertise available to contribute.
There will be challenges associated with these objectives. Negotiating them will not be straightforward. Personally, I would push for an early reciprocal deal on citizens in situ at the time of the referendum, and a clear statement of continued co-operation in areas like security, as a way of re-establishing a degree of goodwill and getting the negotiations off to a positive start. I also like the idea of having different rules for young people, most of whom voted to ‘remain’ and who are disproportionately disadvantaged by the loss of the right to live, work and study freely elsewhere in Europe. Again, it may be possible to negotiate a more limited form of free movement on these terms provided it is seen as a truly reciprocal arrangement rather than a ‘special deal’ for Britain.
Stating objectives like these does not make negotiating them more difficult. In fact, securing parliamentary approval for triggering Article 50 on the basis of an explicitly stated set of negotiating objectives arguably strengthens the government’s hand. Firstly, it tells the rest of the EU what Britain wants. There has been a great deal of frustration in the other 27 capitals about Britain’s failure to clarify this point. Doing so should at least let everyone know where they stand, and help the EU27 to clarify their own objectives. This should shift the debate away from emotion and towards simple politics, where there is more scope for compromise. Secondly, it sends a signal that Britain wants to minimize the disruption caused to the rest of the EU by its departure, and to continue to work together positively in future. As Boris Johnson said in response to the referendum result, Britain will remain a European power after Brexit. Though the shock of departure, and the slap in the face the British electorate has given the rest of the EU, will make relations frosty for a period, there is no reason why Britain should not in time become a valued partner of the EU. Finally, it sets clear limits to what Britain can accept, especially in the area of immigration, while leaving open the possibility of favorable outcomes for the EU27 in other areas. A deal that met some of the government’s publicly-stated negotiating objectives while moving towards others would probably be acceptable in Britain. That would allow the government to make credible commitments in areas where the disagreements between London and the EU27 are fewer. None of this means a deal will actually emerge. Emotions continue to run high, and there are a number of areas where Britain’s interests conflict with those of the EU27, and where the EU27 are internally divided, with free movement chief among them. But it would establish a clear, coherent and legitimate set of objectives to get the process moving.
Brexit means Brexit. Britain is going to leave the EU. Involving MPs will force the government to come up with a sensible plan, will give it credibility in Brussels and should obviate the need for a referendum on the final Brexit terms that the government would struggle to win. It will also begin the process of restoring sovereignty to parliament that many ‘leave’ voters voted for, and will fit nicely into the ongoing trend towards MPs gaining a greater say over British foreign policy. Making the government’s objectives clear and transparent will neither prevent it achieving them nor ensure it can do so. But it is a necessary first step. It should not have been necessary for Gina Miller to go to court at all. The legal position is fairly clear, and the government is probably going to lose, with the added risk that it may wind up forced to consult the devolved administrations more directly. Ministers should never have tried to exclude MPs from the process. Getting them involved will not mean annulling the result of the referendum. It should, however, help ensure it is upheld properly.