Consent and conciliation: Brexit and the Border

Given the ambiguity in December’s Joint Report between the UK and the EU, the UK’s reaction to the EU’s draft Withdrawal Agreement is unsurprising. Equally unsurprisingly, anger focused most on the protocol for Ireland and Northern Ireland.

The Irish Border is Brexit’s most fraught question. People can cross it without checks due to the Common Travel Area. Military checkpoints closed over time: the last came down in the last decade. Goods cross unchecked, thanks to a customs union and shared regulatory standards. And thanks to common EU systems, VAT and excise duties don’t need to be checked either. Brexit puts this at risk.

Border protocol

The protocol clarifies that the UK and Ireland can continue to make provision for the free movement of persons without checks. This is crucial: controlling travel between Ireland and Northern Ireland would prove unworkable. The symbolic and human implications of trying would be appalling. Checkpoints would likely become targets. In 1939–52, we had controls between Great Britain and the island of Ireland instead.

More contentiously, the protocol lists areas where Northern Ireland would apply EU law to avoid checks on goods or customs. The ‘common regulatory area’ would cover:

  • EU law on the free movement of goods
  • EU customs legislation, with Northern Ireland considered part of the EU’s customs territory
  • bans on restricting imports/exports, both upfront and by the back door
  • EU law on VAT and excise duties.

EU sanitary and phytosanitary rules and standards for agriculture and fisheries would apply. The same goes for wholesale electricity markets, much environmental protection, and state aid as it affects EU-Northern Ireland trade.

You can argue about whether every aspect of this protocol represents the ‘bare minimum’ to avoid a hard Border. Ukraine’s Deep and Comprehensive Free Trade Agreement provides a precedent for internal market treatment on the basis of ‘approximating’ legislation. (I suspect ‘approximation’ will look very much like ‘adoption’.) Other approaches which recognise the Court of Justice of the European Union’s jurisdiction could also be found.

Still, I can’t see how you avoid any border checks without regulatory alignment in goods, a full customs union and shared law on VAT and excise duties. And paragraph 49 of the Joint Report was wide-ranging:

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. … 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.

Both sides have defined a hard border to mean no physical infrastructure. I read this to mean UK, and not only Northern Ireland, alignment. And there are fundamental problems with a full economic border between Northern Ireland and Great Britain.

Border economics

Obviously, the economics don’t explain why borders in these islands are so contentious. But Northern Ireland stands to lose more than most of the UK from Brexit. So we should scrutinise claims about the economics of the Border.

Northern Ireland’s exports are more EU-focused, and dramatically more Irish-focused, than Great Britain’s. 35% of its exports go to Ireland alone. But ‘exports’ don’t cover trade within the UK — and 59% of Northern Ireland’s external sales go to Great Britain.

Data: Northern Ireland Statistics and Research Agency

That holds across the vast majority of sectors. For instance, 61% of Northern Ireland’s external sales are of manufactured goods, and mainly go to Great Britain.

Data: Northern Ireland Statistics and Research Agency

Some reply that a sea or air crossing is inherently more onerous than a land one and so can better accommodate checks. This carries some weight. But economically, it’s hard to argue it makes up for the impact on nearly four times the sales. ‘You’ve got to cross water anyway’ doesn’t work for UK manufacturing trade with Germany. It can’t logically work for trade between Great Britain and Northern Ireland either.

There are some exceptions. No one sensible should break up the all-Ireland single electricity market or have different rail gauges on the island. But absent very compelling evidence, the economics of an regulatory and customs border in the Irish Sea don’t stack up.

The Belfast Agreement and the Border

More fundamentally, unionists’ case rests on the Belfast Agreement’s principle of consent. Many have argued that principle requires special status if a choice must be made. They claim border checks should reflect Northern Ireland’s Remain vote.

It’s superficially plausible, but I think it falls on reading the Agreement. The parties agreed to ‘recognise the legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they prefer to continue to support the Union with Great Britain or a sovereign united Ireland’.

Brexit makes it harder for nationalists to accommodate themselves to the UK. That’s one reason voting Leave was such a mistake. But the principle of consent clearly relates to the choice between the Union and a united Ireland. It cannot be cited in and of itself to argue for particular relationships with the EU.

Special arrangements for Northern Ireland don’t breach the principle of consent in a literal sense. And all sides accept Northern Ireland is unique. Other parts of the UK do not have the right to join another state guaranteed by international treaty. And the world’s most lopsided liberal democracy can hardly insist on total internal symmetry.

But there is a principled difference between more autonomy for Northern Ireland and differentiation aligning it with another state. That’s particularly true when Northern Ireland has no direct say in the arrangement. Being in the UK entails more than MPs at Westminster. Beyond a certain point, the spirit of the principle of consent must be given its due. I believe an state-like economic and regulatory border within the UK passes that point.

Precedents exist for excluding parts of the EU from its customs union, and indeed for excluding parts of EU member states from the EU itself. But Northern Ireland is neither small and uncontested nor distant and geographically isolated. It is reasonable and just for unionists to expect to remain meaningfully integrated into the economy of their state.

The Border is deeply sensitive for nationalists — London’s insensitivity on that point stands as an indictment. We should avoid forcing a choice on borders if we possibly can. But constitutional status, in spirit and letter, is just as sensitive for unionists. On this, the DUP is quite as firm as it claims. So is the UUP. Liberal unionists such as Sylvia Hermon expect alignment to be UK-wide.

The EU27 side is making a fundamental mistake if it thinks the Agreement means an unmarked border with Ireland trumps avoiding an economic border with Great Britain. Strand Two of the Agreement does indeed provide for a North-South dimension. But it’s carefully defined, far more so than in the Sunningdale Agreement which preceded it.

In fact, it’s crucially important and insufficiently understood that the Belfast Agreement is far clearer on constitutional status than Sunningdale. There are reasons for that. It is quite as dangerous to ignore unionists’ concerns on status as to dismiss nationalists’ fears about borders.

Consistency cuts both ways

On Brexit, I normally criticise our government for wishful thinking, denialism and contradictory commitments. And there’s plenty of fault to lay at London’s door. Casually dismissing the Border problem, blithely assuming Dublin would give ground and pretending technology could fix a fundamental policy problem stand testament to that. But the EU27 side’s position on the Border has contradictions too.

Paragraph 50 of the Joint Report is crucial:

In the absence of agreed solutions, as set out in the previous paragraph, the United Kingdom will ensure that no new regulatory barriers develop between Northern Ireland and the rest of the United Kingdom, unless, consistent with the 1998 Agreement, the Northern Ireland Executive and Assembly agree that distinct arrangements are appropriate for Northern Ireland. In all circumstances, the United Kingdom will continue to ensure the same unfettered access for Northern Ireland’s businesses to the whole of the United Kingdom internal market.

Barnier has said that how the UK delivers on paragraph 50 is a purely UK affair. That’s rather disingenuous. The EU has rightly pushed back on UK hints about turning a blind eye or exempting most businesses from customs controls — they’d create a smugglers’ paradise and break WTO law to boot. By the same token, the UK can’t turn a blind eye either.

So London can’t unilaterally prevent any barriers within the UK and deliver on paragraph 49. The EU and UK would have to extend arrangements to prevent barriers on the island of Ireland to Great Britain to do that. And having signed up to paragraph 50, the EU should surely allow it to be deliverable.

So the EU has a choice too, not just the UK. It’s currently saying something along Canadian lines (or perhaps a bit more like the now-abortive TTIP) is the only realistic option for Great Britain. Combined with the draft protocol, that clearly means an economic border in the Irish Sea — and a fallback option which doesn’t really deliver on the Joint Report.

Compromise works both ways

To be clear: I believe the UK Government is far more at fault in the Brexit negotiations than its EU counterparts. It has failed to make the effort to understand its partners — worse, it indulged in self-indulgent nationalist rhetoric at the price of alienating them. It has failed to prepare its people to face the gulf between Vote Leave’s fantasies and Brexit’s reality — May’s speech on Friday was a belated, partial start. And it has spent far too long effectively seeking to gain the economic benefits of the EU without the institutional obligations.

But the EU’s ‘Norway or Canada’ mantra (though it shouldn’t be taken wholly literally) carries its own problems. A balance of rights and obligations is fair and reasonable. A binary approach makes it politically impossible to solve the very question the EU labels a sine qua non. (And of course, ‘Norway’ wouldn’t solve the Border issue anyway.)

If the UK can move further towards realism and away from its needlessly hardline Brexit policy, and if the EU can define avoiding cherrypicking as a balance of rights and obligations and not a binary split, there might be a way to give everyone something. It would probably include something close to the Withdrawal Treaty protocol for the whole UK.

The UK might hope for more input into drawing up regulations, drawing on EEA precedents. It might ask for a little more room for regulatory manoeuvre. It would seek concessions on services, perhaps drawing on Ukraine in both cases. The EU could demand a substantial financial contribution. It could also expect a liberal and preferential UK migration policy short of free movement. And London would need to accept regulatory alignment as binding. (Kevin O’Rourke and Sam Lowe and John Springford have put forward very similar options.)

The UK could then say it had reduced economic disruption while curbing EEA movement; the EU would be able to say there was a real price for leaving; the UK and Ireland could remain borderless. From Great Britain’s perspective, I’ve tended to see an EEA-ish Brexit as the least-worst option, especially for services. However, Northern Ireland’s greater reliance on manufacturing and links with Ireland make it different. And given the stakes, I’d be willing to put Northern Ireland first.

I accept this is asking a lot of the EU. But I hope the EU might consider its origins as a peace project for our continent. And so I’d argue it, too, should prioritise protecting the peace project on these islands.

This post was originally published on Medium.com on 4 March 2018.

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Dear sensible Conservatives …

I’m not just writing this with liberal Conservatives or Conservatives who voted Remain in mind. I’m thinking about all of you who know that politics involves trade-offs, opposition matters in democracies and disagreement with the Government is not treason to the country.

Your views on the current Government vary. A few of you are quietly or openly miserable. Many see Theresa May as one of the sensibles at heart, trying to keep the diehards within the tent. Others think her Brexit policy is broadly tolerable. But I imagine you all look across the political divide, see what’s happened to moderate Labour and think it could be much worse for you internally — even as you fear losing to Corbynite Labour.

Labour pains (and possibly precedents)

It certainly could be much worse for you. I’m a Labour moderate: I know what ‘worse’ looks like. But in some ways, your situation feels like a much more extreme version of Labour’s 2011 or 2012. At the time, we had a leader whose basic priority was to keep Labour’s internal coalition more or less on board. We also had a groundswell of feeling in, around and sometimes in complicated opposition to (combined with a sense of ownership of) the Party. In our case it was driven by a mix of being in Opposition and the sheer scale of Government cuts to the most vulnerable. And we had a longstanding hard left element of the Party — a small one in Parliament and a larger one in the country.

The soft left and many who now identify as moderates liked lots about this state of affairs— not wholly unreasonably. Ed Miliband went on the March for the Alternative in 2011. New Labour was self-consciously disavowed — either as too centrist, or as an outdated response in new circumstances, or both. Labour started to sound more critical of business, less keen on markets in public services, less interventionist in foreign policy. All of which was well within the mainstream of politics, whether you agreed with it or not.

On the side, sources like Another Angry Voice became quite well-liked and read by much of the left. Owen Jones was read and shared with sympathy by many social democrats. They were clearly to the left of the leadership — how far wasn’t too clear to many at the time. Organisationally, the unions had been shifting left over years. CLPs were moving that way too, with an inevitable impact on candidate selection. It’s not surprising that the 2015 intake had a significantly larger share of genuinely Corbynite and would-be-Corbynite-if-we-could-get-away-with-it MPs than the rest of the PLP.

We also tend to forget that nasty incidents relating to anti-Semitism and foreign policy predate Corbyn’s leadership. Under Miliband, three Labour MPs saw fit to invite Raed Salah to the House of Commons — and of the three, only Jeremy Corbyn was on the hard left. During the Gaza offensive in 2014, a shadow minister cheered the fact that protesters forced a Sainsbury’s to close — and yes, she apologised, but how did we ever get there in the first place? When an MP’s language called a Jewish Ambassador to Israel’s loyalty to the UK into question, it took a week for Labour to get him to apologise.

Meanwhile, Miliband tended to nod to the left of the soft left in his rhetoric, even when policy remained pretty resolutely social democratic. By 2015, when Jeremy Corbyn borrowed the same rhetoric and most of the policies too, Andy Burnham and (to a lesser extent) Yvette Cooper found themselves struggling to tell Labour members why they shouldn’t vote for him apart from saying he couldn’t win an election. Liz Kendall was the only candidate who consistently said Corbyn was wrong on policy as well as tactics. And the moral case against Corbyn was only made by a very few. The rest is history. Whether social democratic Labour will ever reassert itself against left-populist and hard left Labour I don’t know. But our parlous state is obvious to all.

Conservatives and the nationalist right

I see parallels with the Conservatives and the nationalist right now. Theresa May is no liberal and in many ways she’s an anti-liberal — a true Home Secretary turned Prime Minister. But she isn’t a zealot at heart. And most of the Cabinet is trying to keep the zealots onside en route to a Brexit which I would deem moderately hard, but would probably include a lot more regulatory co-operation and alignment (UK rule-taking in disguise) than said zealots actually want. But in so doing, too many of the sensibles are aping their language and assumptions.

May herself did it repeatedly. Her attempt to portray differences of view as somehow threatening to the nation when she called this year’s election was a case in point. Somehow we had reached a point where political division in the House of Commons — in an adversarial assembly! — was supposed to be a problem. She drew on the language of conspiracism as well as the nationalist right in her absurd claim that the EU was trying to influence the UK election. Earlier, her ‘citizen of nowhere’ remarks played into the same sort of rhetoric and language.

Boris Johnson, whose patriotism is so all-consuming he probably decided whether to back Brexit solely on the basis of his own personal advancement, has played the same game. (I normally disapprove of blanket cynicism about politicians. However, every now and again the evidence requires exceptions to be made.) Our born-again patriot Foreign Secretary recently declared himself ‘troubled with the thought that people are beginning to have genuinely split allegiances’. One assumes his convictions are of recent origin as he only renounced US citizenship this February.

Even more recently, David Davis — also a Brexiteer, but probably more pragmatic than many of his fellows — wrote to demand Labour MEPs have the whip withdrawn for voting in favour of a European Parliament resolution. The relevant section ran as follows:

The European Parliament … is of the opinion that in the fourth round of negotiations sufficient progress has not yet been made on citizens’ rights, Ireland and Northern Ireland, and the settlement of the United Kingdom’s financial obligations …

I think the UK national interest is served by recognising our weak negotiating hand and a) settling on citizens’ rights rapidly and in good faith, b) settling as much as possible on the Irish Border while pointing out that the extent of EU-UK divergence will dictate the nature of border management and c) agreeing the broad outline of a financial formula. As far as the money is concerned, getting a decent final relationship is worth virtually any amount. British MEPs also have a duty to their constituents’ interests as they see them (including, I might add, non-UK EEA nationals when it comes to citizens’ rights). They have every right to use their votes to nudge the UK Government towards reality as they see it.

You might disagree with me on the merits of that view. But it is not unpatriotic to hold it. It is not “acting against your country” to advocate it. The national interest is a contested thing, which is one reason we elect people with a responsibility to adjudicate upon it. To call on opposition parties to withdraw the whip for “voting against the national interest” is as toxic as it is disingenuous. It’s not all that far from “enemy of the people” as applied to judges. And “enemy of the people” wasn’t all that far from “traitor”.

This sort of rhetoric has made far deeper inroads into mainstream Conservatism than the hard left equivalent managed in mainstream Labour before autumn 2015. It’s a dangerous game to play. And if I can’t persuade you it’s wrong in principle, think on this: if you don’t want a total car crash in March 2019, at some point you will have to disappoint the people who actually believe this stuff.

You will have to compromise on the Brexit bill. Your deep and comprehensive free trade agreement will involve copying large parts of EU law in all but name. Even after any transition ends, the European Court of Justice will — though probably not directly — continue to have influence over law in the UK. You will probably find your two-year transition period isn’t long enough. You will discover that immigration can’t be cut to tens of thousands without damage you won’t be willing to tolerate.

Do you think the obsessives on the nationalist right will spare you when you try to bring them back to Earth? Philip Hammond was sympathetic to Brexit not that long ago. He backed Remain in the end, but he was distinctly eurosceptic. He is implementing a policy of leaving the single market and not forming a customs union. He still has Brexiteers baying for his blood now. What is it about the record of lifelong europhobic obsessives which makes some of you think they can ever be appeased? What happens when you have to tell them Utopia doesn’t come wrapped in a Union Jack?

So if I were you, I’d draw some lines in the sand sooner rather than later. I’d resist the temptation to define disagreement as unpatriotic. I’d remind myself that pragmatists can’t control zealots forever. I’d get ready to fight sensible, moderate conservatism’s corner. And I’d remember that if you co-opt the zealots’ language and instincts for too long, you’ll have nothing to defend yourself with if they come for you.

For the good of the country — though of course your zealots would deny my right to say such a thing — please learn from Labour’s social democrats. Given the chance, the hard left turned on us. Given the chance, the nationalist right can turn on you in turn.

This post was originally published on Medium.com on 28 October 2017.

On electoral responsibility

Elections are brutal things. Politicians usually do what they need to do to win. Frankly, as a Labour member I often wish we were more ruthless.

Still, a politician fighting for votes should always remember there remains a country waiting to be governed afterwards. There is no dead of night into which your silliest turns of phrase or your most careless commitments disappear. Theresa May’s predecessor was sunk by one of his most careless commitments: I imagine he could advise.

When it comes to silly turns of phrase, politicians should also remember hurt feelings have consequences. The United Kingdom proved that how people feel matters on 23 June 2016. As a result, we now face our most challenging and complex negotiations in many decades. In those negotiations, 27 other countries hold almost all the cards. The Union they form together has clear principles of its own. It has a vital interest in preventing British free-riding leading to other countries trying the same thing. And it currently has higher priorities than pure economics, as the UK of all countries should understand just now.

Since becoming Prime Minister, Theresa May and her ministers have promised the British people they can have their preferred EU benefits (or near as damnit) without the obligations. She spoke the language of antagonistic nationalism to please her party’s zealots at Conference. She threatened where she should have conciliated. She rattled sabres instead of building bridges, and she failed at every turn to manage expectations. And today she chose, after a leak highlighting the hubris and ineptitude of her government’s Brexit ‘strategy’ — probably aimed at warning the German public they might have to pay a fair bit more if the talks collapse — to accuse the very people whose goodwill she needs most after 8 June of ‘interfering in our elections’.

I presume Mrs May called this vote because she felt confident about the outcome. Politicians are not in the habit of ceding three years in office on a whim. So by her own lights, she can presumably afford a modicum of statesmanship. She can afford to start preparing the public for the climbdowns which will be required for a deal. She backed Remain, however quietly, and she knows Vote Leave sold a pack of lies to win. She knows we can’t have what they promised.

At some point, one of two things will happen. British expectations will gradually return to earth, allowing us to move towards some inferior-but-not-devastating deal with the EU over time. Or British expectations will meet EU reality and the result will be a car crash. It seems our Prime Minister deems the latter worth making more likely in the cause of (in her view) winning a majority of 140 rather than 120.

I imagine it will indeed win votes. But seeking to govern is not just about seeking votes. This irresponsibility may well come back to haunt Mrs May, even if she wins her mandate. She will richly deserve it, if so.

It’s just a shame it will come back to haunt the country too.

This post was originally published on Medium.com on 3 May 2017.

Sentiments and statistics: why CANZUK won’t fly

The idea that the United Kingdom should try and rebuild closer ties with Canada, Australia and New Zealand raises its head from time to time. Obviously we’re close friends, with ties of history, language and culture, and there’s nothing wrong with reinforcing old friendships.

But thanks to Brexit, we’re hearing a bit more about this kind of thing than usual — with a focus on some kind of economic and geopolitical partnership. So is there a business case for CANZUK as a primary relationship for any of these four countries? Let’s look at where our potential partners currently sell goods and services.

Data: World Bank statistics (I grouped CANZUK, EU-27 and GCC figures myself)

In the United Kingdom, nearly half of our exports go to the rest of the EU. When you add EFTA members in, a majority goes to countries in or partly in the single market. By far our largest non-European partner is the United States. China and the Gulf Co-operation Council states both come in ahead of CANZUK. You might try and argue that we’ve had a lot of trade diversion to the rest of Europe. But even if you doubled our trade with Canada, Australia and New Zealand, it’s never going to be anywhere near enough to make up. We are a Euro-Atlantic economy.

Data: World Bank statistics (I grouped CANZUK, EU-27 and GCC figures myself)

In Canada’s case, it’s quite obvious that nothing and no-one could match the scale of US trade. It’s next door, it’s huge and it’s economically fairly integrated. Again, China and the EU-27 both come in ahead of CANZUK. Again, there’s no way CANZUK could even come close to matching trade with the neighbours.

Data: World Bank statistics (I grouped CANZUK, EU-27 and GCC figures myself)

A clear majority of Australia’s exports go to east Asia, with the developed English-speaking world clocking in at about 10%. CANZUK would theoretically be the fourth-largest destination for exports, but over half of them go to New Zealand. (Let’s also note that Australia and New Zealand already have a free trade agreement.) Australia trades mostly with its neighbours and within its geographical region.

Data: World Bank statistics (I grouped CANZUK, EU-27 and GCC figures myself)

New Zealand is the only CANZUK country where CANZUK would be the top recipient of exports (or even in the top three). But that’s overwhelmingly down to Australia, where 17% of New Zealand’s exports go. The UK makes up 3.4%. (Incidentally, the EU-27 accounts for about twice that.) Again, New Zealand is mainly an Asia-Pacific economy.

So all four of our prospective partners show the usual truth in trade: countries tend to sell to their neighbours. The UK, Canada, Australia and New Zealand are already mature, developed economies, so any idea that their vast growth potential could make up for diversion from elsewhere doesn’t stack up. There is no sensible case for CANZUK as a main economic bloc for any of its members.

But CANZUK has been sold as a geopolitical partnership, not just (or even mainly) an economic one. Do the defence and security arguments stack up any better? Clearly the four countries spend a large amount on defence between them — over $96 billion, though nearly 60% of that is spent by the UK. We have served together in many conflicts. Australia and New Zealand are committed to each other through ANZUS. Canada and the UK are allied through NATO.

But again, look at members’ defence strategies. The four countries share two main things: a predominant focus on their own regions and a critical dependence on the US. Our most important joint defence endeavour is the Five Eyes, where the US is the most powerful member. Only the UK even aspires to have a global reach in its own right. Our Strategic Defence and Security Review cited our military and intelligence’s ability to ‘project our power globally, and … fight and work alongside our close allies, including the US and France, to deter or defeat our adversaries.’ Note the US and France are the two main allies cited. It is abundantly clear that the UK’s main defence commitment lies in NATO.

Australia’s Defence White Paper from last year is clear. Its priority is to ensure an independent ability ‘to defend Australia and protect our interests in our immediate region,’ and then to ‘enhance Australia’s ability to contribute to global coalition operations.’ Its two principal allies are the United States and New Zealand. Canada’s key roles are ‘defending Canada,’ ‘defending North America — in partnership with the United States’ and then ‘contributing to international peace and security.’ New Zealand’s focus includes the need to ‘defend New Zealand’s sovereign territory’, ‘meet New Zealand’s commitment as an ally of Australia’ and ‘contribute to, and where necessary lead, operations in the South Pacific’.

Granted, the UK, Australia, New Zealand, Malaysia and Singapore have one joint security commitment. They have agreed to consult on responding to a threat to the latter two countries. But the Five Power Defence Arrangements aren’t a collective security agreement. They stem from a UK withdrawal from commitments east of Suez in 1968–71, not a willingness to take on new ones.

The FPDAs are generally agreed to contribute to security. But does anyone believe the UK and Canada could possibly defend states in the Pacific in an existential crisis without the US? Would Australia and New Zealand be in a position to assist in Europe if the roles were reversed? That may be a remote prospect, but a true collective security commitment requires the answer to be ‘yes’. I don’t think anyone actually believes that would be the answer without the Americans. So what, meaningfully, are we going to do together in the field of security and defence on our own?

There’s no decent case for making an economic priority of CANZUK. There’s no real defence or security case for it either. We’re all liberal democracies with similar positions on global issues, but we can already co-ordinate our foreign policy as and when we want. No doubt we could bring in freedom of movement between our countries if we particularly wanted, though it’s hard to see that as practically transformative. But in the end, this is about sentiment.

If ever the UK needed to be frank about its role in the world, the time is now. Brexit is going to be damaging anyway: if we get it wrong, it could be catastrophic. Our priorities are to minimise the damage to our relations with our nearest neighbours, try to keep the transatlantic alliance in one piece and develop economic ties where they will do most good.

Whether we’re ‘more like’ continental Europe or mainly-anglophone-developed-democracies-but-not-the-US is subjective and highly politicised. Much of the argument boils down to rival sentiments. But our trading patterns, principal threats and security priorities aren’t sentimental. And an economic, foreign or defence policy governed by sentiment would be doomed to failure.

This post was originally published on Medium.com on 8 April 2017.

A Brexit speech for a Labour leader

I stand here to give a speech which I had hoped not to have to make.

I campaigned hard for Remain before 23 June. I wanted the United Kingdom to stay in the European Union, as did 16 million fellow Britons. But 17 million fellow Britons voted otherwise. They delivered a clear, though narrow, verdict.

Labour has said that we respect the referendum result. And so we do. The United Kingdom, as the Prime Minister has said, is leaving the European Union. I am not here to talk about how to stop Brexit, but how best to implement it.

We respect the decision taken; we also respect the fact that it was narrow. We live in a deeply divided country. If we want to bring it back together, we have to find a settlement which can appeal, at least in part, to both sides of the national argument last year.

Perhaps that sounds uninspiring. Boring, even. But if the referendum made anything clear, it showed that we have become far too divided a country.

I believe we need to rediscover the virtue of compromise; of remembering that we usually do have more in common, as Jo Cox MP – so tragically taken from us last year – said in her maiden speech; of meeting our friends and neighbours halfway.

Labour believes that ‘by the strength of our common endeavour we achieve more than we achieve alone’. But working together requires finding common ground. And today I want to outline how Labour would make that possible.

Listening to Leave voters

Any attempt at doing that must start with asking ourselves: what were Leave and Remain voters saying on 23 June?

For Leave voters, sovereignty played a crucial role. There is always a balance here. We can keep our rights to do things our own way, on our own – but that often means the way others do things affects us and shapes our own choices, sometimes decisively or almost completely.

Or we can agree to do things together with other countries, knowing we’ll have to compromise a bit, but often having a greater real say in the overall package than we’d have had on our own.

Just as no-one sensible believes that we can’t do anything together with other countries, no-one sensible believes there’s nothing we can best deal with by ourselves. There’s no 100% right answer to where the line is: and those of us who campaigned to Remain must accept that we failed to convince enough people that the line lies in the right place now.

The UK’s global ties were also important to many people who voted to leave. Our global story is also part of our European story. For better and for worse, Britons, French, Spaniards, Dutch, Portuguese and many others crossed the seas – as soldiers, settlers, farmers, factory workers, missionaries and far more. As Quebec and Latin America could remind us, transatlantic ties are not just the United Kingdom’s to enjoy.

But the UK has an exceptionally strong sense of its global ties today. That’s partly down to the English-speaking democracies with whom so many Britons share bonds of family, friendship and affection. It’s partly due to the sheer reach of past British expansion. And of course, it’s partly linked to our distinctive version of shared sacrifice in two world wars.

There’s no conflict between being European and having ties elsewhere. But I fear pro-Europeans too often – without meaning to – managed to join some opponents of the EU in inventing a tension where there didn’t need to be. And we know many who voted Leave thought of our friends further afield when they made their decision.

And third, of course, migration. Too many people have talked as though this was the only thing Leave voters thought of. It wasn’t, and we do fellow citizens a disservice in pretending otherwise. But no-one can deny that concerns, fears and anger about migration played a crucial role in the vote on 23 June.

Now, at this point Labour politicians go on to talk about wage levels, about exploitation of migrant labour, about funding for public services in areas of high recent migration – and I will. We must condemn prejudice and celebrate the contribution immigrants make to the UK – and I will always do that. But economics doesn’t address all the reasons many people are worried, even angry.

Much of people’s concern about immigration stems from culture, not economics. I am not saying that anyone with these concerns is racist or prejudiced. I am saying that many people, probably most, are ambivalent at best and unhappy at worst about rapid and unmanaged change, especially when it feels done to them rather than with them.

Concern stems from views about different cultural attitudes, too. Everyone has characteristics and instincts shaped by their nationality and upbringing, so this is not a attack on anyone’s worth or culture. It’s simply to say that, just as people with different personalities can sometimes need to think about how to get along, so can people with different cultural backgrounds. And we have shied away from that discussion for too long.

Reassuring Remainers

So any way forward needs to find a way of speaking to those concerns. But what of the second-largest number of votes cast for any cause in British history? What about those who voted Remain?

First, we need to acknowledge many Remainers’ strong sense of internationalism – not a passionate love of European institutions, but something broader than that. Many Remain voters don’t just see it as a practical necessity to get on with the neighbours; they believe it to be a good thing in itself.

Many have travelled elsewhere in Europe; they may have friends there, or remember spending time there themselves. They value their, their children and their grandchildren’s rights to live and work elsewhere.

And of course, many of us remember the European Union’s origins as a peace project – a way for Europeans to argue in council chambers over product standards, not with tanks over borders. As they go to Brussels, UK ministers need to remember that too, and respect how seriously our partners take it. It is not only a majority of UK voters who can value politics and history just as much as economics.

Second, a commitment to EU rights and standards loomed large for many Remainers – especially Labour Remainers. It would be easy for me to attack a Tory Government here, and rest assured we will whenever it is merited. But it goes deeper than that.

The rights to parental leave, to consultation at work, to protection for temporary employees; it is indeed often true that the UK’s legislation goes further than the EU minimum. But European minimum standards set a floor for all of us – not just the UK. Some Conservatives may want the UK to try to undercut the Netherlands; but actually, the rules help protect all our social models.

Similarly, many who remember what British beaches and rivers were like in the 1970s will know that EU environmental standards have changed things for the better. The EU is one of the world’s most forceful actors on climate change – no, not forceful enough, but more so than anyone else, and one whose word as the world’s largest economy matters.

Tory threats to scrap those rights and standards, to move towards an ever-more-ruthless free-for-all if the EU fails to agree a deal to their liking, are unlikely to survive contact with the voters for now. But it would be exactly the sort of destructive race to the bottom common rules are in place to stop.

Third and most prominently, the economy was a crucial reason millions voted Remain. This isn’t really about the fears of an economic shock – not in the long-term. Those of us who campaigned to Remain should have the grace to say we expected the reaction to be far worse than, so far, it has been.

It is about the inescapable heft and proximity of the European single market. The EU covers around 44% of our exports on its own. Add in the Swiss and the EEA countries, all of whom are in the EU’s single market to varying degrees, and the countries with a partial customs union with the EU, and it’s over half. And that doesn’t even consider the free trade deals already struck by the EU.

Bringing Britons together: a moderate Brexit

So any way forward should address both sides’ concerns, while fulfilling the mandate to leave. We should pursue a moderate, reasonable Brexit: a settlement our country can unite around for this generation. We must also seek a settlement which works for the European Union, whose survival and prosperity is a vital national and continental interest.

First of all, a moderate Brexit must be moderately implemented. In particular, we cannot allow ourselves to be driven off a cliff-edge by an ideological insistence on the fastest Brexit possible. The negotiations which lie ahead are the most complex we have had to negotiate in modern times. We must allow for a transitional deal, so we have time to get this right.

I believe our final deal must include membership of the single market. In many ways, the single market is a British invention. It goes far further than any free trade deal ever can. The reason Theresa May talks of preserving ‘single market arrangements in some areas’ – never mind the fact our partners won’t stand for cherry-picking – is this: she knows full well they cannot be bettered outside the single market.

It is quite possible to be in the single market and outside the EU. Plenty of Leavers looked to Norway’s place in the European Economic Area before the referendum. The EEA focuses on exactly the thing many eurosceptics in the UK said they always wanted: the most unfettered trade possible within Europe.

Norway is not in the EU. It plays no part in the Common Agricultural Policy or the Common Fisheries Policy. No EEA law takes direct effect in Norway; the Norwegian Parliament enacts it, and has more flexibility than an EU member. Political union is not an aim of the EEA. Norway makes smaller contributions to shared activity than it would as an EU member. There is a safeguard clause for legislation with unacceptable consequences – though Norway has very rarely had to use it. In principle, the EEA or something like it is the main arrangement able to include passporting for financial services.

As the Prime Minister has said, trade is not the only area where we wish to work with our European allies. Climate change is a shared challenge. The EU’s Emissions Trading System also includes Norway. The UK could be a leading player in green energy if it wanted to be, so it makes good sense for us to seek to stay inside. We should be no less keen to work with the rest of Europe on security and extraditions after Brexit than we were before and should be keeping the substance of the European Arrest Warrant, as far as possible.

The customs union and the Irish Border

Finally, the Prime Minister has argued for a renewed focus on trade deals elsewhere in the world once we leave the EU. I understand this: one argument for Brexit was pursuing new markets elsewhere. But at the moment, as a part of the EU’s customs union, our businesses are spared a tidal wave of paperwork in exporting to the rest of the EU. We are also spared customs checks on our only land border.

This is a difficult choice. Making the best of Brexit might be argued to require looking across the world for new business and new markets. But it is hard to see how the UK is likely, for now, to strike the kind of deals which would make up for such major new barriers with our largest market.

Above all, we cannot risk creating a hard border on the island of Ireland lightly. Any changes to our position in the customs union will require the closest consultation with Ireland and with the Northern Ireland parties. Labour will press the Government to ensure this happens.

Any measures which could reduce the burden of checks should be considered: facilities to carry out EU customs checks in the UK for Ireland-bound goods and vice versa, for instance, or ways of pre-certifying goods bound across the Irish Border. We should learn from Norway and Sweden, who ensure only one national authority needs to check goods. The UK should stand ready to discuss how such measures might be delivered and funded with Ireland.

And if broad consent in Northern Ireland can be found for special measures or some special status there, then – given its unique position – the UK, Ireland and the EU should give them the most serious consideration.

The issue of the customs union is almost uniquely difficult. We need time to address the challenges it raises. We should remain in customs union with the EU during the transitional period, during which we will be seeking to re-establish the trade deals we currently have as an EU member. We can do that from within a customs union with the EU.

And let us then take our final decision on its future on evidence, not ideology.

A close neighbour and a closer Union

My judgment is that the best approach – one which increases our domestic sovereignty, allows a renewed sense of global ties, supports our economy and protects our social rights – lies in membership of the single market, through the EEA or some other means.

I believe this path, together with close co-operation in security and foreign policy, reflects our position as a European nation with ties elsewhere. A close friend to the EU for whom its degree of integration has proved too great.

It also speaks to all four countries in our United Kingdom. The Scottish Government has been loud in seeking a differentiated solution for Scotland. The Welsh Government has put forward proposals of its own.

I do not believe the right solution for the UK is to create new borders within the UK. It is, instead, to respect the devolved nations’ concerns as part of a UK-wide settlement. Not Nicola Sturgeon’s seeming determination to use Brexit as a wedge for separation; not Theresa May’s seeming indifference to the views of Scotland, Wales and Northern Ireland; but a settlement which can bring us all back together.

Free movement as managed movement

But I am not going to lie about the price of staying in the single market. Too many politicians have peddled too many myths over the years. The price of staying in the single market is some form of free movement of labour.

We have to understand that our EU partners are not bluffing about this. The European project relies on common rules for common benefits. For them, conceding that principle sets a dangerous precedent for the future. If one country can unpick parts of the single market, others can too. We need to recognise this and respect it. But I also know immigration was one of the main reasons people voted to leave the EU.

Faced with this, some say we should offer up our own people’s jobs on the altar of cutting migration. Others say we should ignore public concerns and carry on regardless. Still others say we should simply demand the single market and a end to free movement. The first ignores our people’s future; the second ignores democratic reality; the third ignores the clear views of our European partners. None of these are good enough.

What we need to do is find a way to handle the way free movement operates – and, over time, to better handle the pace of change. Not ‘free movement’ as we have implemented it in the UK so far, nor a denial of economic reality, but managed movement.

First, we need to make better use of the powers we already have to manage movement from the rest of Europe better. There’s no need to wait for Brexit to do this; a Labour Government could start working on it now. After three months, we actually have a right to tell EEA citizens they need to show they are working or studying or have the resources to support themselves if they wish to remain in the UK. We don’t do it at the moment. Let’s look at it.

Second, there are issues we can talk about in Brexit negotiations, especially around benefit claims and hiring policy. Of course, the vast majority of EEA citizens actually come here to work. But because of the way tax credits work in the UK, we do have concerns here about whether people have made a contribution before they start to receive benefits as well.

Article 112 of the EEA Agreement allows non-EU members to take safeguard measures if there are ‘serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist’. We should, if possible, seek a political understanding that the UK will take some proportionate action on EEA migrant benefits as an EEA member. We should also explore the possibility, as the Swiss (with extensive single market access, though not EEA membership) have recently, that those who have registered as jobseekers in the UK might be given priority for jobs over new arrivals.

We should also take action on wages and skills, so more British people are able to do jobs which others currently fill. Some pro-Europeans have bemoaned the rise in wages offered by agricultural employers in Lincolnshire. Not I. No social democrat worthy of the name should bemoan a better deal for low-paid workers. Labour’s commitment to higher wages and to tackling exploitation could open more of those jobs to British citizens.

We need to do far more both to support British citizens to develop new skills – so they have no need to worry about competition from others, because they will know they can hold their own. And considering migration from outside Europe, we should be willing to probe a bit deeper on whether we could be training more people here. If we struggle to find people in the UK who want to work in Indian or Chinese restaurants, for instance (as we have in the past), we should ask why more often.

Finally, we need to talk more about integration. The vast majority of people who make their home here want to play a full part here. In reality, people in the UK are mostly pretty good at getting on together. And evidence suggests that when people are reassured that immigrants overwhelmingly do wish to contribute, join in and integrate – which they do – their concern about immigration falls considerably.

So partly, we need to reassure people and show we value people living together, not just living beside each other. We should not be relaxed about the idea of people living parallel lives.

But there are some areas where we do have a problem. And it is progressive to say as much and look to do something about it. There is nothing left-wing about people, disproportionately women, finding themselves unable to get help they need or talk to people in their local area because they don’t speak enough English. There is nothing left-wing about cutting government funding for language classes. And to ask (and fund) councils to do more to support integration in their local areas would be good for new immigrants and established communities alike.

No one policy or strategy will succeed in squaring this circle. But making use of the powers we already have, seeking adjustments where this is feasible, taking real action on wages and skills and doing more to ensure people live together not apart can both better manage the pace of change and help address its consequences.

Wider Europe

No speech on UK strategy should ignore our wider European role outside the EU.

The UK is a European country and we must remain committed to European values. That includes the Council of Europe – wholly separate from the EU – and the basic values enshrined in the European Convention on Human Rights.

The ECHR is the Council of Europe’s greatest creation and one of the world’s most remarkable backstops for basic decency anywhere in the world. Britons led the way in putting it together; assumptions that long informed the common law became part of its warp and weft.

Our membership of the Convention does not just matter to us: it matters to our whole continent. The European Court of Human Rights is far from perfect, but it matters to Russian human rights activists who struggle to get their cases to Strasbourg. It matters to novelists in Turkey who look to the Convention to help protect their free expression.

Quite rightly, our neighbours would be appalled were the UK – one of the world’s great democracies – to withdraw from its commitment to such a basic instrument of human rights protection.

Co-operation on extradition, on security and much else besides could be threatened if we no longer adhered to common human rights standards. Further, our influence in the counsels of our continent – a continent in which we will always need and wish to play a role – would be badly hurt.

But above all, the true values and true nature of the country where Amnesty International was born could never be served by turning our back on human rights protections. We seek a different relationship with the rest of Europe. But Labour wants no part in abandoning Europe’s finest values.

Protecting the West

The United Kingdom must also remain unequivocally committed to the collective security of our continent. How and to what extent we co-operate with the EU on military matters is a matter for negotiation, but our commitment to our continent through Article 5 of the North Atlantic Treaty is not. We stand with our neighbours.

And here, we cannot ignore the challenges to our east and the changes to our west. I don’t propose to say too much about President Trump today. The UK, and Europe as a whole, must of course retain a close relationship with the United States, above all through NATO. We must also be able to speak frankly where we disagree.

But we Europeans must recognise that our ability to speak frankly and our ability to defend ourselves are intrinsically linked. Credible defence is the foundation of an ethical foreign policy, to coin a phrase.

To our east, Vladimir Putin leads a country which, just three years ago, altered the boundaries of Europe to its own direct benefit for the first time since 1945. That country’s interference in the democratic processes of the West is now well-documented.

The UK, as Europe’s leading defence power, retains a crucial role in Europe. We must not abdicate it. We must build on our links within NATO, and our bilateral agreements with France. We should also seek to retain the right – like Norway, Serbia, Switzerland and Ukraine – to take part in joint procurement via the European Defence Agency, where this is in our interest.

But above all, we and other Europeans must have a serious, honest conversation about our defence capabilities. It should go without saying that the target of 2% of GDP on defence should be met by every NATO member. But more than that, we must ask whether that level will suffice to keep our continent safe.

Because we may be leaving the European Union, but we could not leave Europe even if we wanted to. And our neighbours’ security will always be part and parcel of our own.

Labour’s approach today

So we seek membership of the single market; a close relationship with the EU after Brexit, while strengthening our ties elsewhere; a balanced approach to managing migration within the single market and from outside the EU; and a firm commitment to European values and security. Where does this leave Labour, facing a Conservative Government?

We will be a responsible Opposition. The times are too grave to play games now. We will judge the Government against the vision I have set out, and we will reach out to other parties and other MPs who share some or all of it. And where the Government get it right, we will support it.

So I say this to the Prime Minister: you are not the prisoner of your backbenchers. You need not put their ideological obsessions above our country’s interests. Where you do the right thing for British jobs, British workers and British safety, Labour will support you. You can be as brave as you want to be.

In Government, we will accept that the question of EU membership is settled for this generation. But if this Conservative Government drags the UK out into a hard, damaging, reckless Brexit, Labour will work towards a partnership of the kind I have described today. We will reach out the hand of friendship to our fellow Europeans and bring our fellow Britons back together.

Perhaps it is unusual for a Labour leader to cite Churchill rather than Attlee. But in a speech about reuniting a nation, it makes some sense to look across the party divides. On 11 May 1953, he said:

Where do we stand? We are not members of the European Defence Community, nor do we intend to be merged in a Federal European system. We feel we have a special relation to both. This can be expressed by prepositions, by the preposition “with” but not “of”—we are with them, but not of them.

Churchill was enlisted by both sides of the referendum debate. But it might be fitting if our new place in Europe and the world reflected his real complexity more than the partisan moulds into which he has been shoehorned.

The future I describe is not the one I argued for before 23 June. But for this moment, for this generation, it might be one with which we all can live.

On Article 50

Whether the Supreme Court was legally correct to say that Parliament must legislate before the Government can invoke Article 50 is for others to debate. Rightly, the courts gave judgment and have settled the issue. Politically, I always believed the Government should seek approval from Parliament for its timing and strategy.

But the Supreme Court’s decision places Labour in a truly poisonous position. Most of our voters backed Remain; most of our seats backed Leave. We cannot defy the referendum result; we cannot back a hard Brexit. I do not envy our embattled MPs.

Second Reading

I can see why Jeremy Corbyn wishes to ask Labour MPs to vote for the Article 50 Bill at Second Reading. And ultimately, I won’t blame him for that, although I disagree with a three-line whip. I know Labour cannot simply ignore the referendum result, and that many – probably most – will feel they should vote in favour to show they accept that result.

But Labour MPs overwhelmingly backed Remain. In many cases, their constituents did too. MPs like Jo Stevens, Catherine West and Tulip Siddiq put themselves at great risk if they ignore their own residents’ views. And some – those who are and have always been committed Europeans – will feel their consciences can only stretch so far.

I accept parties of government must have a position on such issues, but frankly I see little point in pretending Labour is in any danger of being in government soon anyway. The current struggle is for survival – one which many MPs will struggle to win if they alienate their Remain-voting constituents. Jeremy can take his position, and most Labour MPs will back him, but it is divisive and unhelpful to force MPs’ consciences at Second Reading. MPs will split hopelessly anyway; best to make some shred of virtue out of overwhelming necessity.

Third Reading

The more important question for the national interest is how Labour MPs vote at Third Reading. Here, there comes a point where Labour MPs must consider the policy consequences of their votes, however electorally inconvenient that may be. Reluctantly, I accept the country voted to leave: overriding the vote without a referendum would be anti-democratic and could occasion a terrible backlash against mainstream politics, and we would lose a second referendum by a larger margin than the first. We now need to try to minimise the damage. As such, I recognise Labour cannot reject Article 50 en masse regardless of the circumstances.

But once the UK triggers Article 50, we have a two-year window in which to negotiate an exit agreement, hopefully with a transitional deal as we move to a new relationship with the EU. It’s all very well to talk about meaningful parliamentary votes on the deal, but we can only extend those talks if every other EU member agrees. It’s legally uncertain whether we could even revoke Article 50 outright unilaterally, but clearly the Government will not do so. That means a vote on the final deal on exit and transition is very likely to be a choice between whatever May comes up with or nothing at all. Backing the Tories’ deal or being thrown out on WTO rules isn’t much of a choice.

If Parliament really wants to influence the shape of Brexit, it has to exercise that influence now, before the two-year countdown starts. And that means Labour’s backing for the Article 50 Bill must depend upon the amendments the Commons passes. If Labour MPs will not vote against the Article 50 Bill at Third Reading in any circumstances, they will effectively show that in the final analysis, they are prepared to let any kind of Brexit through.

The referendum gives Theresa May no right to a blank cheque. Nor does she have a right to ride roughshod over the views of Scotland, Wales and Northern Ireland’s administrations and legislatures. Her form of Brexit will do enormous damage to the people Labour represents. It may well poison our relations with the rest of Europe at the very time when the United States may abandon our continent too. Labour should not sign her cheque so long as it stays blank.

Labour and Brexit

More broadly, Labour needs to be frank about the true implications of what Theresa May plans to do. She has said she wants to leave the single market and the customs union, although she seems to have some notion of simplifying customs proceedings. Responding to her speech, Keir Starmer said: ‘It is good that she has ruled out that hard Brexit at this stage.’ He also said ‘I accept that form follows function’.

His response ignores the secret of the single market. The rules and institutions of the single market are the single market: the form creates the function. It is simply not the case that May’s ‘bold and ambitious free trade agreement’ will do the same job. And Labour does no service to scrutiny by allowing that elision to pass unchallenged.

Jeremy Corbyn’s response shows where such a path leads us:

We welcome that the Prime Minister has listened to the case we’ve been making about the need for full tariff free access to the single market but are deeply concerned about her reckless approach to achieving it.

It is simply not good enough to say ‘hard Brexit’ is only about process, not endpoint. Labour should back remaining in the single market and level with voters about the tradeoffs – as well as the reality of our EU partners’ position. The Opposition should puncture the Government’s delusions, not indulge them.

In conscience

Finally, I will not lie about what I would do at Second Reading if I were a Labour Member of Parliament. I could not in good conscience vote to give any impression I approve of what we are about to do. I do not approve, even if I try to be resigned. I am a passionate European and I always have been. I believe the European project is, for all its faults, the greatest attempt to build relations between our countries on the basis of law and not just power we have ever seen. I believe it has made an invaluable contribution to peace, democratisation and constitutionalism on the continent of Europe. I believe it is part of a web of institutions and habits of mind and inaccurate historical memories, a web which helps keep the dark heart of man at bay. And I would not want it said that the United Kingdom’s representative assembly walked away from it as one.

1707 and 1973: Scotland, the UK and Brexit

When a 62% Remain vote in Scotland met a 52% Leave vote across the UK, the Union of 1707 looked shaky to many. Nicola Sturgeon promptly said a second independence referendum was highly likely. Support for Yes spiked briefly in the polls. Frankly, as a half-Scottish European, I was temporarily tempted myself – despite being a fervent Unionist in 2014.

Since then, somewhat to my surprise, support for Yes now looks pretty similar to 2014. This has, so far, held even as it’s become clear Theresa May takes a hardline view of the Brexit vote. No doubt as a result, Sturgeon – who has no desire to lose a second referendum and really bury the issue – has tried to keep her options open. Her stated position is that her priority for now is to keep the whole UK within the single market. This would be the best possible Brexit outcome for Scotland and for the rest of the Union.

However, she has also spent plenty of time arguing Scotland could stay in the single market even while the rest of the UK left. Clearly, this ‘differentiated solution’ has a distinct political edge: Sturgeon has an interest in the UK being seen not to meet Scotland’s wishes. Still, the UK was always asymmetrical, and voters in Scotland voted decisively to remain. It is also fair to say Sturgeon has softened her position quite a bit from demanding Scottish EU membership post-Brexit. So taking it at face value, what would the differentiated solution entail?

The ‘differentiated solution’: Liechtenstein-in-Europe

The Scottish Government’s paper Scotland’s Place in Europe suggests Scotland could stay in both the EEA and the UK customs union. The document cites the principle of ‘parallel marketability’. This is the model Liechtenstein uses vis-à-vis Switzerland, while participating in the EEA. Because Liechtenstein has a customs union with Switzerland, it has to adopt Swiss technical standards and regulation in a wide range of areas. But the EEA also requires Liechtenstein to adopt its technical standards and regulation.

As a result, EEA and relevant Swiss law are now simultaneously applicable in Liechtenstein. Liechtenstein agreed this with Switzerland, and the EEA also agreed to accept the arrangement. Products meeting either Swiss or EEA standards can be sold in Liechtenstein, but EEA law trumps Swiss when dealing with the rest of the EEA. Liechenstein also had to create a Market Control and Surveillance Mechanism, so neither EEA nor Swiss rules were broken outside the principality.

The Swiss Federal Customs Administration collects duties on goods entering the whole customs area. It informs Liechtenstein’s Office for the National Economy when goods are destined for Liechtenstein. Where customs tariffs are different (some EEA goods attract tariffs in Switzerland, but not Liechtenstein), duties are reimbursed. Importers are informed of their obligations, including proofs of sales in Liechtenstein.

Why it wouldn’t work for Scotland

For Scotland, this presumably means HM Revenue and Customs would continue to collect duties for the whole UK. It would then inform a Scottish public body where requirements differed and when goods were destined for Scotland. By analogy with HMRC, the Scottish body might be a beefed-up Revenue Scotland.

The UK would also have to devolve much of employment, commercial and competition law, so Scotland could implement EEA law. Alternatively, the UK might confer a general power to implement EEA rules on Holyrood. But that could cause chaos in UK-wide law.

Where the UK’s rules didn’t mirror the EEA’s, new non-tariff barriers would arise, which poses a major problem. 64% of Scotland’s exports (excluding oil and gas) go to the rest of the UK, compared to 15% going to the rest of the EU. Even ignoring the fact that much of the oil and gas also goes to the rest of the UK, it is clear who Scotland’s main trading partner is. The Scottish Government would say the model keeps UK goods standards for UK trade. But Scotland is mainly a service-based economy. In fact, Scotland trades more in services with the rest of the UK than it does in goods. The position is reversed in trade with the rest of the EU.

So given that, what happens as UK and EEA employment law start to diverge? What about financial services regulation, especially when UK financial services are so intertwined? What if EEA competition law is tougher than the UK variety – what does that mean for a UK-wide company operating in Scotland?

The problem gets worse when you remember this is Sturgeon’s proposal in the event of a hard Brexit. The further the rest of the UK pulls away from the EU, the more acute the problem becomes. In Liechtenstein’s case, Switzerland adopts most of the acquis communautaire for goods anyway, which softens the dilemma. The UK may well copy a lot of EU regulation anyway, as it discovers the irritations of diverging from its main trading partner. But to the extent that it doesn’t, Scotland will pay a price.

Above all, Liechtenstein is a small and sovereign state. Legally, presumably the UK would need to join the EEA and then restrict its territorial application to Scotland. Scotland would then need powers to take part in the EEA Joint Committee and the EEA Council, appoint a judge to the EFTA Court, select a member of the EFTA Surveillance Authority College and so on. Spanish domestic politics on their own make it clear this won’t happen. But even if the politics could be resolved, the cases are fundamentally different. Liechtenstein has about 37,000 inhabitants. It is tiny, and therefore allowed to be anomalous. Scotland, on the other hand, would have the largest EFTA population in the EEA. It would also be far more closely bound to the rest of the UK than Liechtenstein ever was to Switzerland.

Liechtenstein’s single market model is not workable for Scotland, any more than its migration quotas set a precedent for the UK. Pursuing it undermines the overriding need for a sensible UK-wide deal.

On Brexit, powers reserved should be powers shared

With the potential and partial, but crucial, exception of Northern Ireland, the form of Brexit mostly needs to be settled UK-wide. But that doesn’t mean Scotland’s (or Northern Ireland’s) distinctive views should be ignored. The UK-wide settlement needs to be a compromise befitting a narrow vote and a territorial split.

In many ways, Scotland, Wales and Northern Ireland have federal relationships with the UK. Each has a legislature of its own as well as the UK Parliament. Powers reserved to the UK Parliament are specified in law. The courts can decide if devolved legislation exceeds devolved powers. Devolved powers aren’t meant to be changed unilaterally, though what that means is obviously disputed.

One key difference with federalism is the lack of formal protection for devolution. Unless Section 28(8) of the Scotland Act 1998 is read very radically indeed, no court would actually stop the UK Parliament legislating over devolved legislatures’ heads. But another is the lack of a mature federal political culture. Federalism usually involves shared rule as well as self-rule – an idea that a state’s nations or regions have a say in government at the centre. In a state large or diverse for federalism, central government has to govern with the territorial dimension in mind.

This is why many federations have indirectly elected second chambers. It’s why federations usually require some or all constituent territories to agree some or all constitutional changes. Modern federalism requires governments to work together. But at the moment, we ‘deal’ with problems between the UK’s nations by ignoring them or offering more powers. With Brexit, working out where to handle powers no longer exercised at EU level will matter a great deal. One of the many arguments for the EEA is that it reduces the need to create a framework for a UK single market which neither undermines devolved powers nor means more non-tariff barriers within the UK.

If the SNP wants to serve Scotland’s interests, however, it needs to recognise the UK can’t just devolve itself out of this problem. Scottish Labour, meanwhile, should push hard for UK Labour to back staying in the single market. But in some ways, it’s the Scottish Conservatives who bear the biggest responsibility.

After the referendum, Ruth Davidson said she’d prefer to stay in the single market post-Brexit. She has built her success on being an uncompromising voice for the Union of 1707. No one will ask her to row back on that. But Scottish unionism shouldn’t just be about keeping Scotland in the UK, but helping Scotland shape the UK. The Scottish Conservatives have political capital. Ruth Davidson is highly respected by her UK party. She has shown Tories can make headway in Scotland. She should use it to make Brexit respect Scotland’s interests, and work better for the whole UK.

What happens otherwise?

Some of the Tory right will say Scotland wouldn’t really leave over Brexit, hard or soft. Well, it might or it might not. Brexit complicates and sharpens the choice for Scotland, and the harder the Brexit the truer that will be. Scots would need to be prepared for a decades-long, probably very painful reorientation. It would be a far more radical form of independence than Alex Salmond proffered in 2014.

But wise unionists should want to reduce Scottish discomfort within the UK, not foment it. They should also beware of assuming Scotland would never jump. A Scotland where 45% voted to leave the Union is not one where the Union is secure. It is one in which the Union has much to prove. If Theresa May really cares for its ‘precious, precious bond’, she would do well to bear that in mind.