It is safe to say that for much of the past 46 years the EU has treated the political anxieties of the UK government with a condescension that borders on contempt. We may be right and prescient – as we were over the euro, or immigration control, or the Euro-army, or the intrusion of EU law into every “nook and cranny” of our lives, as Douglas Hurd once put it. But all too often we are simply patted on the head, like some half-witted child, and told to run along.
In their chronic disdain for the UK position, I am afraid that the EU has been fortified by repeated evidence of our basic wobbliness: that we are not in the end prepared to defend the logic of our case. For decades the mantra in Brussels has been that Britain objects, Britain protests – but in the end Britain always signs up.
Never has that EU contempt been clearer than today, as we struggle to leave. Our negotiators have done their best to explain UK democratic and constitutional objections to the Irish backstop. They might as well have been talking to the wall. No, says the EU, there will be no time limit. There will be no unilateral escape mechanism.
Unless there is an imminent change of heart in Brussels, it looks as though Parliament will be asked to approve a treaty that is essentially unchanged from the one it threw out in January with a record 230-vote majority.
Last week the Attorney General, Geoffrey Cox, valiantly tried to take things forward. He proposed that the test of “reasonableness” – well known to English common law – could be legally applied to any EU attempt to keep us locked in the backstop. It wasn’t much to ask. Merely asking the other side to be reasonable – it seems a very frail protection by comparison with a proper time limit.
Brussels was having none of it. The EU’s formidable negotiator, Sabine Weyand, observed, with perhaps unconscious irony, that the concept of “reasonableness” was unknown to EU law. The talks collapsed. Michel Barnier then tweeted his supercilious and repetitive offer. Great Britain could, of course, leave the backstop, but Northern Ireland would have to remain behind. He thereby summed up, again, the constitutional humiliation that Brussels wishes to impose.
Under the terms of this Withdrawal Agreement, the UK will be effectively obliged to remain part of the customs union of the EU. We will not be able to set our own tariffs. We will not be able to do proper free-trade deals. We will not be able to be a proud, independent actor on the world stage, or to campaign coherently for free trade.
We will have to levy tariffs set by Brussels, and remit 80 per cent of their value to the EU. Nor will we be able to claim that we are taking back control of our laws. We would agree not just to accept EU law on goods and agri-foods (with no say in the setting of those laws) but also to all kinds of non-regression clauses designed to keep us in lockstep with Brussels, with the result that the EU will continue to send its uncomfortable feelers into every nook and cranny of Britain.
They will introduce all manner of rules that we may not like. They will forcibly sterilise any signs of growth or innovation of which they disapprove. I am afraid that, in legal terms, they will be our colonial masters, and there will not be a damn thing we can do about any of it.
The worst of it is that the UK will not be able to leave these arrangements unless the EU agrees. In determining whether the Irish border problem has been solved, and whether the UK is finally cleared to go, the arbiter is not London, or Dublin, or even the Commission, but the European Court of Justice. In other words, the UK will have less sovereign power to withdraw from the backstop than it has to leave the EU itself. It is a quite bewildering state of affairs.
Surely the time has come for the EU to see sense and to let us go. There is still time for the backstop to be replaced – as Parliament required under the Brady amendment – or equipped with its own version of Article 50.
We all know how EU negotiations work. They go to the wire. The real compromises are only made at the very end. It is important that there is to be a summit of EU leaders on March 21. That is why it is so vital that we do nothing further to weaken the UK’s position.
It would be preposterous to take the option of no-deal off the table. If indeed that option is put to Parliament this week, the Government must obviously whip against it, and the same goes for the absurd idea of extending Article 50. This is not just a question of keeping faith with the people, or with Conservative election promises.
What is to be gained by an extension? What will we know by the end of June that we do not know now? If business wants certainty, then surely the worst possible option would be to protract this misery.
The way ahead is clear. If the EU really will not budge on the backstop – and that has yet to be tested – then for many months I have argued, with many others, that the UK should leave on a different basis. We should come out on time, at the end of this month, but with a mutually agreed standstill in the existing arrangements, so that we can use the period to the end of 2021 (a very long time) to do a proper free-trade deal.
That is the option, now called the Malthouse Compromise, commands support from Leavers and Remainers across the party. The EU doesn’t think we have the guts. Our partners think they have us where they want us. They think that in the end we will sign up to these Carthaginian terms.
We must politely and respectfully show they are mistaken. We can still have a Brexit that is friendly, and smooth, and orderly.
But will I vote for this backstop, as things stand? No way.