Why a 'sensible compromise' on Brexit could turn into a poisonous chalice

29 October 2018

The volume is increasing about the risks associated with a no-deal Brexit. The government has published its technical notices, none of which was on the side of a campaign bus, which reveal the seismic dangers for nearly every economic sector and policy area - from grounding planes to shortages of essential drugs. This week business organisations have been in the European Parliament raising their concerns with MEPs and their counterparts in national chambers of commerce from across Europe are set to meet Brexit Secretary of State Dominic Raab. British Prime Minister Theresa May has long been arguing that it is a binary choice between her deal or the cliff edge - effectively trying to blackmail MPs into supporting her deal. A false choice as alternatives exist, but it’s clear that pressure will mount on to back any deal on the table.

Increasingly, the tantalising prospect of an EU-UK customs union deal is being floated, something many in Westminster have advocated as a way of partially solving the Irish border dilemma and ensuring long-term stability for manufacturers and just-in-time production. For MPs and those weary of Brexit sucking the oxygen out of our public debate and parliamentary time, this could at first sight look like a ‘sensible’ compromise to support and allow everyone to move on into the transition period. But I think a careful consideration of the detail is needed to avoid a situation in which we enter a transition period, we leave the EU common negotiating table, and find that political promises evaporate, ultimately putting jobs and livelihoods into the very danger that it seemed had been avoided. Why do I say that?

Legally, the Withdrawal Agreement is a divorce agreement and cannot cover future trade relations.  Any commitment to a customs union agreement can only be included in the political declaration accompanying the Withdrawal Agreement, alongside the regulatory framework of access to the single market. While the Withdrawal Agreement will be an international treaty, the political declaration is little more than a statement of common intent.

Although May has survived another 1922 committee, it is clear that she is unlikely to survive far beyond March next year, and this matters on this issue in particular. Hard Brexiteers with strategic minds will be listening to the call from Michael Gove and others to get behind the deal in order to get over the line of exit in March 2019 before ousting May and setting a new direction. This poses a fundamental problem for a customs union arrangement which is not yet legally secure and is based merely on political agreement.

As the customs union cannot be included in the legally binding Withdrawal Agreement, I’d be asking what options there are to tie the hands of a future Brexiteer PM post-March. It seems that the Trade Bill, which has been in a holding stack, could be a means of locking-in the customs union into primary legislation, subject to a full negotiation with the EU27. If May was really offering this nugget then surely she would allow the Lords and MPs to amend the Trade Bill. If not, then the promise is as strong as the paper it will be written on.

So if I were an MP looking at the choice on table, I would be asking some fundamental questions ahead of any vote in parliament. What may look like a ‘sensible compromise’ could turn into a poisonous chalice.

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