So is this what Brexit, this great act of democracy, has come down to? All routes for leaving or staying blocked by parliament. Twenty-seven foreign governments will now decide the future of Brexit alongside a Prime Minister whose policy on this is so discredited that there is no equivalent in modern British political history.
Maybe. But not necessarily so.
There lies an exit route, which is certainly the most honest and, in my view, the most attractive way forward, given where we are.
It involves a referendum, but not the referendum that Remainers want. It would only be on whether the United Kingdom should form a single customs territory (a customs union and single market in goods) with the EU or not.
In either case, the backstop would not apply. If the vote was ‘yes’, it would not be necessary. If the vote were ‘no’, subject to what is said below, it should be taken as vote against the backstop. It should be held as soon as possible with the United Kingdom having left the European Union before that it takes place.
The referendum would involve two tweaks.
First, the United Kingdom should commit to observe, whatever the result of the vote, all parts of the withdrawal agreement other than those directly in issue as a result of the vote (articles 6-10 of the Protocol on Ireland/Northern Ireland and the Annexes cited).
Second, if the citizens of Northern Ireland vote to establish a single customs territory with the EU but the rest of the United Kingdom votes against it, Northern Ireland should form a single customs territory with the EU which features the possibility of controls on movement of goods between Northern Ireland and the rest of the United Kingdom.
Why would this require some honesty?
First, it would recognize that the choice between a customs territory, on the one hand, and WTO or Canada terms is at the crux of the argument about our future relationship with the EU. The backstop has been a messy and disingenuous attempt to obscure that. It is, in reality, a customs union and single market in goods that dares not speak its name or reveal its presence.
Indeed, one sees that in the reaction of its main opponents. Labour opposes the backstop because it is a customs union, which might not be sufficiently permanent.
The ERG and others oppose the backstop because they fear that it is a customs union, which might be permanent. There is, thus, an illusory search for fixes which are not there, and, even if they were, could not be reliably implemented by the United Kingdom to the EU’s satisfaction.
This ridiculous quest is not just overshadowing current negotiations but is likely to bedevil relations for the foreseeable future. Better just to call the situation for what it is.
Second, parliament has been unable to resolve this question. It cannot go away as other parliamentary agendas might, in the absence of a parliamentary majority, because of the responsibility to respect the result of the referendum.
As parliament has not found a way forward, the most straightforward thing is to have this matter decided by another referendum.
Why might this politically work?
It offers those wishing a soft Brexit the possibility of realizing that. If it seems insufficient to some, there is nothing to stop them campaigning for that once the United Kingdom has left the European Union. Our relationship with it continues to be a subject of legitimate debate.
It offers those wishing a WTO/Canada Brexit the possibility of a quick exit from the European Union. It also allows them to put the case for these directly to the citizens of the UK.
If they win, they will get a mandate for their vision of the United Kingdom’s place in the world, and their hand is even stronger vis-à-vis the political elites that they believe have obstructed Brexit. Finally, it would allow the British people a say in the most significant trade agreement that will be concluded, that with the European Union.
But why would other EU states give this to us when it suggests our breaking the Withdrawal Agreement in six months if there is a vote against the single customs territory? Put simply, it is better than any other alternative.
The UK commits to protect their citizens, to make the payments agreed, and to honor as much of the Protocol on Ireland/Northern Ireland as possible. There is also more time to prepare for the consequences of no deal Brexit.
These things are, by the way, also the right thing to do. Much has been made of whether the EU will act in good faith in the future, with the UK seeking further assurances. That must work both ways.
The EU made financial commitments on the basis of assurances provided by the UK government. Good faith requires these to be honoured It is unclear why small-scale Romanian farmers of limited means must now suffer because the UK government cannot get its way on the Irish border, and therefore thinks it can break promises made.
Finally, it offers the UK government a principled way out. This referendum also commands a stable majority within the United Kingdom parliament.
However, the people of the island of Ireland, in particular those in Northern Ireland, are the people most politically and economically touched by these negotiations. Whilst the UK government cannot speak for those in the Republic, it surely has a responsibility to give those in Northern Ireland increased voice on this question.
They should be able to decide whether they wish controls either on the island of Ireland or (if Northern Ireland votes for membership of the single customs territory but the rest of the United Kingdom does not) in the Irish Sea.
At the moment, this is a matter about which others talk a lot and they are not sufficiently heard. And that must surely be a matter for them rather than Westminster, Brussels or the preferences of one particular Northern Irish party.
By Damian Chalmers, Professor of EU law at the National University of Singapore and Visiting Professor at the Centre for the Analysis of Risk and Regulation at the London School of Economics and Political Science. He was Head of the European Institute at the LSE between 2007 and 2011.
