There are no compromises on the backstop acceptable to the EU or a Johnson-led government. A general election fought by the Conservatives on a no deal ticket is therefore very likely writes John Springford.
It is fitting, if unnerving, that the person who led Britain into the Brexit maze will now be in charge of leading us out. Had Boris Johnson – and to a lesser extent, Michael Gove – not lent the Leave campaign their charisma and respectability, it is unlikely that the public would have voted for Brexit. Johnson, who will probably be elected prime minister by around 150,000 Conservative party members, will have to make some decisions quickly that will be extremely unpopular, either with his base or with a majority of the public. The stakes could not be higher: the decisions he makes may determine whether the United Kingdom itself continues to exist. The high degree of uncertainty makes predictions difficult, but the point of this analysis is to try to make some educated guesses about the decisions Johnson will take.
The October 31st deadline imposed by the EU means that Johnson will spend August and September doing three things.
Ramp up no deal planning
First, as Johnson has already signalled, he will ramp up no deal planning. This will serve as an attempt to both force concessions from the EU by convincing them that he is serious about no deal, and to mitigate the disruption to trade and investment if it happens. He is very unlikely to achieve either aim. The costs of no deal will be four times larger
for the UK than for the EU-27, because exports to the EU make up around 13 per cent of UK GDP, while exports to the UK make up 2.5 per cent of EU-27 GDP. And the EU thinks that making concessions will sell Ireland down the river, sending a signal to other smaller member-states that they cannot count on EU solidarity. Ireland’s prime minister, Leo Varadkar, has shown no willingness to water down the backstop: the opposition party, Fianna Fáil, is as committed to the backstop as he is, and the overwhelming majority of Irish voters support a tough line. The rest of the EU fear that concessions would embolden continental eurosceptics to test the EU’s resolve on other contentious issues.
Planning is unlikely to do much to mitigate the short-term disruption of no deal. Both the UK and the EU have published their own no deal plans: these include unilateral measures to lower or remove import tariffs; ensure derivatives trades can still be cleared in London for a fixed period of time; information campaigns informing traders of new processes and obstacles; and temporary provisions allowing British aircraft to continue flying to EU airports. But there is too little time to build new border and road infrastructure to reduce congestion at the Dover-Calais crossing and on the M20 motorway in Kent.
The new government may also try to convince businesses to prepare for no deal through stockpiling or sourcing more components from outside the EU. But British officials fear that this is unlikely to make a big difference if no deal happens: in April, several automotive companies shut down their plants for annual maintenance to coincide with a possible no deal, and are unwilling to incur the costs of doing so again. Small and medium-sized businesses are unwilling or unable to spend money on new supply chains that may not be needed. Some businesses argue that a depreciation of sterling after no deal will offset tariff and non-tariff costs of exporting (forgetting that imports will become scarcer and more expensive).
Determine renegotiation demands
The second thing Johnson will have to do is to get cabinet agreement on the UK’s renegotiation demands. There are a few options, but they are unacceptable either to the EU or to the pro-Brexit right.
Much has been made of ‘alternative arrangements’ to the backstop, to try to avoid border infrastructure in Ireland with technology and other fixes. But, as the CER’s Sam Lowe has written
, these would only work if they have the consent of border communities, most of whom are Irish nationalists. A phone app that allows a farmer on the border to deal with export and import procedures may reduce the need for border infrastructure, but it would be useless if farmers refused to use it. Diseases can spread over land irrespective of border controls: Ireland and the EU-27 will not accept that the UK can leave the EU’s regulatory regime and have check-free farm exports from Britain to the island of Ireland.
Johnson has already ruled out another option: a time limit on the backstop. The EU would not have accepted it in any case. It will take a very long time to negotiate a comprehensive trade deal between the UK and the EU, which means any time limit would also have to be long, and so unacceptable to the Democratic Unionists (DUP).
The EU would be more willing to accept a longer transition period, to maximise the chance that the final deal is negotiated without the UK falling into the backstop. But it seems unlikely that pro-Brexit Tories in cabinet would accept that option, since in their mind it would replace ‘vassalage’ for Northern Ireland with vassalage for the UK as a whole. And the EU would insist on the backstop in case negotiations over the final deal broke down. EU lawyers claim that an indefinite transition would breach Article 50, which implies that the withdrawal agreement should not cover the future relationship.
Johnson could ask to return to the original EU proposal of a backstop that only kept Northern Ireland within the EU’s customs regime and parts of the single market. Theresa May had negotiated a whole-UK customs union to complement the Northern Ireland-only regime if the backstop were triggered. This would allow Johnson to negotiate and sign free trade agreements between Great Britain and non-EU countries, but not Northern Ireland. But the DUP would bring down the government.
The final option – a clearer process for determining whether alternative arrangements may replace elements of the backstop over time – may be on offer from the EU. The EU might be willing to agree that, if the backstop kicked in, and the EU and UK thereafter agreed a process to replace some border checks, then the EU would allow that element of the backstop to fall away. But the decision would have to be taken at a political level, not by a technocratic body, because consent for border checks is an inherently political matter. The EU would insist that it had a veto over any elements of the backstop being replaced by alternative arrangements, which is unacceptable to the DUP and hence a Johnson government that is reliant upon its support.
Propose a replacement for Theresa May’s Chequers plan
The third thing that Johnson must agree with cabinet is his vision for a final deal with the EU. The UK government’s plan is currently the white paper agreed at Chequers in July 2018. This proposes an arrangement that ties the UK to EU single market rules necessary to prevent border checks, and a ‘dual tariff’ plan for customs that would make it difficult to sign free trade agreements with countries outside the EU. Johnson resigned over this plan, and the EU said it violated their red lines. He would obviously favour a free trade agreement with the EU that provides for a more independent trade policy. But that would make the backstop even more necessary for Ireland and the EU-27, and reduce the likelihood that they would make any substantive concessions.
Where does this leave us?
The upshot, then, is that any attempt by Johnson at a renegotiation of the withdrawal agreement in September and early October is very likely to fail. As a result of that analysis which, if Johnson does not already know, he will soon find out, he can either call for a snap election without bothering to renegotiate, or he can try to force through no deal after the EU rebuffs him. An early election would be very risky: English voters are more or less evenly split between the Conservatives, Labour, the Liberal Democrats and the Brexit party, and the Scottish nationalists’ lead over the Conservatives and Labour has risen in Scotland. Johnson may bring Brexit party voters back to the Tories by championing no deal, but at the risk of moderate Tories voting Liberal Democrat or staying at home.
A little more likely than a snap general election, then, is that Johnson goes through the motions of renegotiating, and then presses for no deal, perhaps in the hope that Parliament stops him and he can campaign for no deal in an election after an extension request has been made and approved by the EU.
On Thursday July 18th, Parliament voted by a large margin to prevent a Johnson government from suspending it to prevent it from voting against no deal. But that does not mean Parliament can legislate to stop no deal without the government’s consent. The consensus view in Westminster is that Parliament probably cannot stop no deal through legislation
, if Johnson were determined to force it through. The government controls the parliamentary timetable, and may refuse to put any bill before the House of Commons that may be amended by MPs who want to prescribe conditions under which the government must ask for an extension. However, Johnson may find it impossible not to put any legislation before the Commons in the run-up to no deal, because some preparations may have to be made that require assent from Parliament.
That leaves a vote of no confidence in the government. Johnson has a working majority of four, which will probably fall to three after a by-election in Brecon on July 24th. Several Conservatives have already signalled they would be willing to bring down the government to stop no deal. Whether they would be willing to sacrifice their careers to do so is in question, but it should be noted that Dominic Grieve, Ken Clarke, Philip Hammond and Guto Bebb will not be ministers under Johnson, and neither will several other ministers in May’s government.
Opposition MPs willing to prop up a Conservative government to achieve no deal will be very limited in number (perhaps only two, Kate Hoey and Ian Austin, can be relied upon by Johnson; others, such as Caroline Flint, say that they would prefer no deal to Remain, not that they would prop up a Conservative government to achieve no deal). If successful, a vote of no confidence might allow a temporary cross-party government to be formed to ask the EU for an extension in order to hold a general election, which the Conservatives would then fight on a no deal ticket.
An early general election, therefore, is the most likely outcome. The Parliament that results would be highly unpredictable, because the UK’s first-past-the-post electoral system, roughly speaking, helps parties that get more than 30 per cent of the vote. It may be that Johnson unites pro-Brexit voters, while Remainers are split between Labour, the Liberal Democrats, the Scottish and Welsh nationalists and the Greens. After Jeremy Corbyn’s equivocations on Brexit and the scandals over some party members’ anti-Semitic comments, Labour may not be able to unite Remainers by shifting to an unequivocal pro-Remain stance.
In sum, Johnson’s renegotiation will go nowhere; a general election is Johnson’s route to staying in power and uniting the pro-Brexit right; and he is more likely to fight one after Parliament has stopped him from achieving no deal without a mandate from the public. Britain’s Remainers had better get organised.
John Springford is deputy director at the Centre for European Reform (CER). This article was first published by the CER. More information can be found at www.cer.eu