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| Thursday October 26 2017 |
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By Oliver Wright and Henry Zeffman
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Good afternoon and welcome to this week’s Brexit Briefing from The Times
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Three weeks from now ministers will finally bring their central piece of Brexit legislation back to the Commons and try to prevent it being mauled beyond all recognition by hostile amendments.
With more than 400 potential changes already tabled and no Conservative majority it looks set to be an epic and unpredictable parliamentary battle.
As we report this week there is one particular amendment that is giving ministers and their senior officials sleepless nights.
If passed — and it already has ten Tories already backing it — it will mean that, even if Theresa May and David Davis can reach agreement in Brussels, a deal could still be unpicked at the 11th hour back home.
If there was a way to win the rebels round, Mr Davis did not follow it — claiming that the vote on the deal might not take place until after Brexit has happened, before hastily climbing down.
Meanwhile our trade correspondent Marcus Leroux sets out just how unprepared British food and agriculture is for a no deal Brexit.
If you have any questions, comments or suggestions please do get in touch by writing to brexitbriefing@thetimes.co.uk or simply replying to this email.
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| Morland on Brexit |
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Too hard to handle
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Among the many concerns of those in Whitehall negotiating Britain’s departure from the European Union, there is one obstacle in particular that is increasingly causing alarm.
It is an obstacle that is integral to the process, but one that could nonetheless derail it at the last moment.
That obstacle is parliamentary democracy.
In a scenario that has been sketched out inside Whitehall, Britain and the EU succeed in piecing together a Brexit deal that, despite being an unpalatable compromise, is one that both sides can live with and better than the alternative.
Under such a scenario Britain loses EU market access — particularly for services — but retains broad tariff-free access for goods and agreement on security, defence and science co-operation.
To get this we agree to broad regulatory alignment that limits our scope to strike ambitious free trade agreement with countries like the US.
So far, so predictable.
But then the deal has to be approved by the British parliament. So far the government has insisted that while MPs and peers will get a vote on the final deal, they won’t be able to amend it and technically whatever they say won’t be binding on the government.
Privately they have been told that such a non-binding vote won’t wash.
There are already ten Tory MPs who have publicly put their name to an amendment to the repeal bill that would force the government to put the withdrawal agreement into primary legislation — probably enough to ensure defeat on the issue.
But even if that fails legal experts believe that the Supreme Court’s ruling in the Miller case implicitly states that primary legislation will be eventually be needed for the withdrawal bill too.
And that’s where things get really messy. Unlike a motion, primary legislation can be amended — opening up the prospect of both sides trying to change the terms of the carefully negotiated agreement for their own ends.
With a big majority, Theresa May would have been able to impose her will . Without it she is in a deeply precarious position.
Whitehall fears there is a very real prospect of parliament “mangling” the agreed deal and so jeopardising the whole agreement at the very last minute.
This is a problem which is some way off and in Downing Street’s “too hard” box. But as Michel Barnier is fond of saying: the clock is ticking.
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Best of Brexit comment
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David Aaronovitch
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Roger Boyes
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Rachel Sylvester
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Matt Chorley
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Andrew Sentance
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The meaning of meaningful
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Theresa May has called for “creative” solutions to the Brexit process. On Wednesday David Davis came up with his own creative solution to the meaningful vote problem: holding it after Britain has left the EU.
The Brexit secretary was giving evidence to the Commons Brexit select committee. He palpably relishes the encounters and engages with the questions in a way that a guarded Mrs May would not.
This session demonstrated the pitfalls of that approach. “The way the [European] Union makes its decision tends to be at the 59th minute of the 11th hour of the 11th day and so on, and that is precisely what I would expect to happen,” he told MPs. Pressed on whether that meant a vote in parliament on the deal could be after March 2019 — after Britain has left the EU — he replied: “It could be, yes, it could be,” adding: “Well, it can’t come before we have the deal.”
Little more than an hour later Mrs May was asked about her Brexit secretary’s comments at prime minister’s questions and was clearly nonplussed, striking a markedly different tone. “The timetable under the Lisbon treaty does give time until March 2019 for the negotiations to take place, but I am confident, because it is in the interests of both sides, that we will be able to achieve that agreement and that negotiation in time for this parliament to have the vote that we committed to,” she said.
From that point Mr Davis having to backtrack was almost inevitable. His department released a statement insisting that he had responded to “hypothetical scenarios”.
The hypothetical case of a deal only arriving at the very last minute before exit, of course, was one raised by Mr Davis himself.
The difficulty might have been defused for now, but one effect will be to supercharge the Conservative backbenchers’ efforts to enshrine in law a guarantee that they will have their “meaningful vote” on the final deal.
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Tunnel vision
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As the government looks to prepare for a “no deal” scenario, a Eurotunnel executive drew attention to an underappreciated challenge, our Trade Correspondent Marcus Leroux writes.
About a quarter of goods trade with the EU zooms through the Channel Tunnel, on which Eurotunnel operates freight services. That includes billions of pounds of fresh food in each direction.
Every cargo of animals and animal and plant products must be inspected on the way into the EU. To meet international commitments the UK must also inspect shipments from the EU. Indeed, it is more or less inevitable that this will happen at some point if Britain slips out of the EU regulatory regime for food and agriculture.
How big a problem is this? John Keefe, Eurotunnel’s director of public affairs, said that it would in effect need to build a sophisticated testing laboratory — which requires land, planning applications, procurement.
“That’s a several year process in normal events,” he told an audience at an event organised by the UK Trade Policy Observatory.
On the French side there is precious little capacity for such checks — and, the last time The Times asked, no plans to add to it.
The clock is ticking.
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Best of Brexit news
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Oliver Wright, Frances Gibb
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Henry Zeffman, Oliver Wright
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Nicola Woolcock, Henry Zeffman
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Sam Coates, Bruno Waterfield
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Sam Coates
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Weakness is strength
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In terms of expectation management last Friday’s decision by EU leaders to begin scoping plans for trade and transition deals with the UK should be notched up as a win for Theresa May.
Going into the summit all the talk was of European leaders taking a tough line with the prime minister by insisting that phase two of the talks would remain stalled until Britain got out its cheque book. But in the end that wasn’t quite the case.
By agreeing to start formulating its position on trade and transition now the EU has opened the door to substantive negotiations on the next round, beginning after the next EU summit in December.
In practical terms this is little different from if they had decided that “sufficient progress” had already been made. It was always going to take them a couple of months to agree a common position on trade and transition — so in reality no negotiating time has been lost. The language from European leaders such as Angela Merkel was also more emollient than might have been expected. She and others were keen to emphasise common ground rather than areas of dispute.
Interestingly some UK diplomats suggest that the relative success of the summit was as much down to Mrs May’s political weakness as it was to the progress in the negotiations so far.
They know — and the British side have been privately and repeatedly emphasising — that there is only so much Mrs May can concede domestically without movement from the EU as well.
The argument has the benefit of being true. Nonetheless it is ironic that Mrs May’s horrific election miscalculation may have unexpectedly handed her one of Britain’s strongest negotiating cards.
Long may the EU’s bête noire Boris Johnson remain hovering in the wings.
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