May looks set for an easier ride

The Conservative whips are doing their job well. Evening after evening, the government records consistent majorities in the teens or twenties as it protects its Brexit Bill unamended through the Commons. More innovatively, we saw this morning a flurry of tweets and statements from Tory MPs and ministers lauding Theresa May for her tough diplomacy in delivering a good interim Brexit deal. That helped set the news agenda.

To some extent, there was merit in that praise. The circle on Northern Ireland seems to have been squared (though the extent to which this hasn’t just been achieved by squinting and believing remains to be seen), the Brexit divorce settlement, while large, isn’t as high as some had predicted, and the deal on ex-pat rights seems fair. All negotiating teams have signed off and most seem content, if not happy.

Well, almost all the teams. The DUP still isn’t entirely satisfied and has warned that there’s “more work to be done”. More intriguingly, the Conservative Eurosceptics have been surprisingly quiet. This was the fourth plate the government needed to keep spinning (alongside the EU, Dublin and the DUP), and the assumption was that they’d vehemently object to any agreement that didn’t deliver on the Leave objectives of being out of the EU in fact as well as in law: no longer subject to EU law or EU courts and able to freely determine policy, regulations and trade deals – objectives essentially inconsistent with what the EU and the Irish government would accept.

In the end, that divide couldn’t be bridged and Davis and May have signed up to Brussels’ demand for regulatory alignment. The crucial paragraph is number 49 and it deserves quoting in full:

The United Kingdom remains committed to protecting North-South cooperation and to its guarantee of avoiding a hard border. Any future arrangements must be compatible with these overarching requirements. The United Kingdom’s intention is to achieve these objectives through the overall EU-UK relationship. Should this not be possible, the United Kingdom will propose specific solutions to address the unique circumstances of the island of Ireland. In the absence of agreed solutions, the United Kingdom will maintain full alignment with those rules of the Internal Market and the Customs Union which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement.

Two points need drawing out here. The first is the word ‘guarantee’ in the opening sentence. This alone ensures that the final deal as respects Ireland will involve continued regulatory alignment and that EU rules will have to be adopted in N Ireland and, by extension, across the rest of the UK given the commitment that there’ll be no border on the Irish Sea. Ironically, while there’s a provision for the N Ireland Assembly to diverge from those regulations, there’s no equivalent provision for Westminster to do so, other than in following Stormont’s lead.

The second point is that the fallback position of “full alignment with those rules of the Internal Market and the Customs Union” gives the EU enormous bargaining power. Why would it agree in Phase 2 to anything other than that fallback state, when it gives it everything it could ask for? Whatever words are found to determine a final Article 50 deal, the substance is set in that paragraph.

It is true that a narrow interpretation of the provision would mean that only a few areas would be affected by the need for alignment. The history of the EU suggests that a narrow interpretation will not be their favoured one. Just about anything could be considered to “support North-South cooperation, the all-island economy and the protection of the 1998 Agreement”. I strongly suspect that across large sectors of the economy and beyond, the UK will continue to be a rule-taker from the EU.

This, however, is not the Brexiteer line. Boris Johnson (who is, admittedly, tied to the government line), tweeted that “Theresa May [is] totally determined that ‘full alignment’ means compatibility with taking back control of our money, laws and borders”. This is glaringly inconsistent. How on earth can you simultaneously maintain alignment with someone else’s laws and have control of your own? It’s about as much use as a steering wheel on a train.

So, what’s going on? Why the silence? (It’s not in fact wholly silent from the Leave camp: Nigel Farage and others of a UKIP persuasion have been ranting merrily but for the moment, UKIP is off-stage; it’s the Tory MPs who count on this score for now). One answer is that my interpretation is wrong: that the repercussions of the concessions aren’t so wide-reaching but even if that’s true, others – The Telegraph and the aforementioned UKIPpers, for example – have reached the same conclusions so that wouldn’t explain why the MPs wouldn’t too.

Nor, I think, is it that they are keeping their powder dry until October next year when the final agreement is due to be reached (though I suspect it will go well beyond then and through to at least February 2019, plus another two to two-and-a-half years’ transition), for two reasons. Firstly, the earlier an intervention is, the easier it is to change the direction of Brexit; and secondly, despite Friday’s Report including the classic EU line that “nothing is agreed until everything is agreed”, paragraphs 49 and 50 imply a unilateral commitment from Britain, irrespective of the final settlement.

The only answer that really makes sense to me is that the supposed hard-liners are not, in fact, going to push their demands and that in the end, they’ve accepted that just about any Brexit deal – and specifically, this Brexit-light deal – is better than no deal. Put more favourably, they’ve accepted that this is about as good a deal as they’re going to get without pressing the nuclear option and that in reality, the nuclear option is not on: the pain and the blame would be too great.

If that assumption is right then that means that May’s position is a good deal stronger than it was at the start of the week, it means that she will probably serve through to the final Brexit talks at least, it means the shape of Brexit is already defined, and it means that 2018 is not going to see huge splits on the government benches over Europe. There will no doubt be spats over details but it won’t be a re-run of either the referendum or the Maastricht debates.

It also means that we should be looking to 2019-21 as the period when the Tories change their leader, with the summer of either 2019 or 2020 being most likely. That gives all the more reason to follow the golden rule of Tory leadership contests (particularly with the current market as it is): lay the favourite(s).

One other feature of continued regulatory alignment ought to be mentioned: it will make rejoining a lot easier.

David Herdson