James Forsyth

May’s compromising position

May’s compromising position
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Can Theresa May and Jeremy Corbyn reach a satisfactory compromise on Brexit? The two leaders’ positions are not, in fact, that far apart. Neither wants a second referendum. They both think that the referendum result means that Britain has to leave the EU. Yet neither wants a dramatic rupture. They would prefer to inch away from the union.

Gavin Barwell, Theresa May’s chief of staff, has remarked that half of what Labour has asked for in the cross-party Brexit talks has already been requested from the EU but to no avail. Even on customs, the standout issue, the differences between Labour and the Conservatives are more semantic than anything else. The government’s proposed backstop is, in effect, a provisional UK-wide customs union with the EU, which is not that different from the permanent customs union that Labour wants.

The problem for May and Corbyn is the lack of enthusiasm for a cross-party deal in their respective parties. If Corbyn compromised, he would infuriate many on his own side. The most obvious group are those who want a second referendum because they believe that will stop Brexit. This group includes the elected deputy leader Tom Watson, the shadow Brexit secretary Keir Starmer and the Labour whips’ office. I understand that the government is trying to work out whether it is a third of Labour MPs who want a second referendum at all costs, or two thirds. If it is the latter, then the parliamentary arithmetic doesn’t work.

There are others, though, on the Labour benches who are not pro-European, just anti-Tory. They don’t see why Labour should help the government out of this mess unless it is beyond doubt that they’ll split the Tories in doing so.

There is considerable nervousness in Tory circles about what a May-Corbyn deal would mean. One of May’s most likely successors within the cabinet worries that any agreement with Corbyn would boost the Labour leader’s chances of becoming prime minister. How could the Tories accuse Corbyn of not being fit for office if they had to rely on him to deliver their most important policy? Others worry that Labour will only do a deal if it is a bad one for the Tories.

There are, it is worth remembering, three different kinds of compromise. One is more a recognition of reality than anything else. It is reality that parliament determines what kind of Brexit deal can pass into law. So allowing a parliamentary vote to set the government’s mandate for the next round of the negotiations, as the Nandy-Snell amendment suggests, is really just a recognition of this fact. Yes, the government is diluting its power to negotiate treaties by accepting this Labour backbench amendment. But as the current impasse shows, a treaty that parliament won’t ratify is rather pointless.

In any future negotiation, the government will be bound by what parliament would accept. So allowing the Commons a role early in the process is not as much of a concession as it sounds. In truth, the damage was done to the UK’s negotiating position when Theresa May lost the Tory majority in the 2017 general election. Any prime minister who wants to negotiate a more emphatic Brexit would have to have a majority, and that would entail a general election.

The second kind of compromise is showing that some things really can’t be done. The point of Barwell’s remark above is that there are areas where Labour thinks the government is deliberately trying to create distance with the EU, when the actual issue is the EU’s desire to protect its own legal and institutional order.

Some Tories in government think that you could even extend this argument to Labour’s idea of a customs union. Given that trade in goods is an exclusively EU competence, there is no way that Brussels could accept a customs union in which the UK — a non-member — had a veto over trade deals. So why not go and ask Brussels for one, and wait for the EU to say no?

The problem with this approach is that the EU isn’t keen on May’s alternative, the facilitated customs arrangement. This would allow the UK to operate different tariffs from the EU but still preserve many of the benefits of the customs union. Indeed, one of the ironies of the cross-party talks is that the EU doesn’t like what either Labour or the Tories want on customs. As one of those involved in the talks admits, neither what Labour or the Tories are proposing is a ‘simple, turn up on day one’ option.

The third type of concession is the most problematic — it creates new facts on the ground. For instance, there is a significant difference between a standstill on customs policy and an agreement on a new UK/EU customs union. The former would create a presumption that whoever wins the next election could seek to negotiate the kind of deal that they want; the latter would not.

If, and it remains a very big if, Labour and the Tories can come to a Brexit arrangement, it will be less palatable to Brexiteers than the deal that May negotiated with the EU. But considering how determined 10 per cent or so of the Conservative parliamentary party are not to vote for any kind of deal, it is hard to see how Brexit can happen without an understanding between the two main parties.

Given this House of Commons opposition to no deal, the only obvious alternative is to go to the country. But even under a new leader, the Tories wouldn’t be in a good position to fight a general election and couldn’t be confident what the result would be.

I understand that the deadline for the cross-party talks to come up with something is the end of next week. If they do not, then — as senior government figures admit — it is hard to see how Brexit will make any progress before October’s EU Council. At that point, the European Union might try to force a decision by giving the Commons 18 days to decide between approving the deal, leaving without one, and revoking Article 50.