EU Referendum

Brexit: the pivoting May


According to recent press reports, we're supposed to be days from Mrs May triumphantly delivering a Brexit deal to her cabinet colleagues and demanding their approval. Despite that, the Observer is picking up on the Arron Banks drama.

But never mind, The Sunday Times is on the case with a dramatic, front-page story bearing the headline "May's secret Brexit deal". This tells us that the prime minister has secured "private concessions" from Brussels that will allow her to keep the whole of Britain in a customs union, thus avoiding a hard border between the Republic and Northern Ireland.

In this respect, when I recorded yesterday that this deal might be in the offing, I also expressed the usual reservations about the media, noting its chronic inability to report detail accurately. And it's here that we seem to have a problem.

If all Mrs May has got is an agreement on a customs union then she hasn't got anything at all: a customs union alone will not provide for the regulatory alignment that is needed to ensure a frictionless border. A deal involving just a customs union is no deal at all. Either there is something more or The Sunday Times has got it wrong.

The interesting thing here is that the ST isn't basing its story on any hard evidence. Rather, it says it has pieced together "the plan" after speaking to "a dozen ministers, advisers, civil servants and EU officials".

What it also says is that a close aide to Michel Barnier "revealed" a major concession at a private meeting last week. The EU, it appears, is now prepared to accept the regulatory checks can take place "in the market" by British officials, meaning that they can be conducted at factories and shops rather than at the border.

If that is the case, there is clearly an inconsistency in the report, as such checks are related to Single Market administration. Mrs May would have to be conceding a level of regulatory alignment commensurate with full participation in the Single Market. There is no way the EU could allow regulatory checks on the basis described without that concession.

Yet this goes way beyond anything that she could possibly get past the "ultra" faction of her party as it would go back on her commitment to take the UK out of the Single Market. If Mrs May is intending to put this to her colleagues on Tuesday, she is going to have a hard time of it.

In the unlikely event that she did manage to get it past the cabinet, the chance of her getting it through Parliament is not much better than the proverbial snowball surviving a journey through Hell.

However, it doesn't even stop there. According to the ST, the EU is willing to write this "all-UK customs deal" into the legally binding withdrawal agreement, on which basis a "backstop" treating Northern Ireland differently from the UK mainland is not required.

Here, the detail is rather vague, and in a rather important respect. There is no word as to whether the EU is prepared to waive the requirement for a "backstop" altogether, or simply hold it over against an assurance that it will not be needed.

This puts us slap-bang at the heart of the current controversy, where the EU has been insistent all along that a "backstop" must be a formal part of the withdrawal agreement. And the Irish government would accept nothing less.

The situation becomes even muddier, when we are told that there will also be an "exit clause" to this notional customs union, supposedly "to convince Eurosceptics the UK will not be in it for ever". Yet this is also at the heart of the standoff, where the "backstop" has been required by the EU to guard against the eventuality that the UK dilutes its regulatory alignment.

Putting this together, one has to say that there are huge gaps in The Sunday Times story. Despite its confident tone and high profile, it simply doesn't hang together. For it to be the basis of the deal, the EU would have to have conceded most of the points on which it has held firm throughout the entire negotiation period.

On the other hand, given the sources cited, what we could be looking at is something completely different. Rather than an agreed plan, The Sunday Times could simply have picked up a last-ditch attempt by Mrs May to cobble together something that she thinks might be accepted by the cabinet.

As such, it looks unlikely that this "plan" has been formally presented to the EU. More likely, Mrs May is hoping that, if she can get it past the cabinet, the EU might be prepared to accept it as the basis for a formal UK offer which can then, with the blessing of Michel Barnier, be presented to the European Council later this month.

Even then, this remains speculation on speculation, with The Sunday Times on its own. No other paper has carried a "deal" story of its own, although some are beginning to repeat it. Reuters, though,is conveying a statement from Mrs May's office stating that it is indeed speculation.

Needless to say, one wouldn't expect the office of the prime minister to say anything different, even if the report was well-founded. In this case, it looks to have so little substance that the official denial will stand. Perhaps the real give-away is the paper's confusion over the customs union and its belief that this could constitute the basis of an agreement. And, by coincidence, it is precisely that confusion which Booker addresses in today's column.

For too long in discussing Brexit, he says, many politicians and commentators have made basic mistakes which reveal that they do not really know what they are talking about. One is when they discuss whether, on leaving the EU, we should still try to remain in "the customs union". A mere ten seconds on Wikipedia could tell them that belonging to the customs union is open only to members of the EU.

Sadly though, confusions abound. Another suggestion, recently heard more frequently, is that we should apply to "rejoin" the EEA, to which of course we still belong as members of the EU.

The prime minister may have insisted that leaving the EU means that we must also leave the EEA, as if one automatically follows the other. But what she has never shown publicly she is aware of is that to leave the EEA in fact requires a quite separate legal procedure, under Article 127 of the 1994 EEA Agreement, an international treaty between the EEA states and the EU.

In theory at least, in order to leave the EEA, we should have to conduct quite separate negotiations with the EEA itself. Says Booker, how ironic it would be if, on leaving the EU, we were to find ourselves still, by default, members of something Mrs May had insisted we must be out of.

So many of the problems on these technical issues, Booker observes, arise because Mrs May has little grasp of the details of what she is up against. And, even if The Sunday Times is only half correct, and has picked up the early stages Mrs May's latest iteration of a plan, she is again indicating her lack of grasp.

The one development of note, the reports of which are possibly reliable, is that Mrs May is, de facto abandoning her Chequers plan, even if she is not prepared to admit this openly. Instead, in a retreat behind impenetrable jargon, she will signal that she will "pivot" towards a different "landing zone" for the final deal.

For all that, we seem to be no further forward than we have ever been, and will still be stuck on exactly the same issues that have been holding up the talks since they started.

It is small wonder, therefore, that we are seeing more than 70 business figures writing to The Sunday Times calling for a public vote on the final terms of Brexit, warning that the country faces "either a blindfold or a destructive hard Brexit".

Even though they are the usual suspects, and largely the same that campaigned on the "remain" ticket, they are not wrong. Nothing we are being told over the weekend seems to make the prospect of a well-founded deal any more likely.