The Government has been delaying key legislation – such as the Trade and Customs Bills – in order to avoid crunch votes on a customs union with the EU.
So it was left to the Lords to inflict the first substantive defeat on the type of Brexit the Prime Minister is seeking.
A combination of Labour and Liberal Democrat peers, a mass of crossbenchers (including all living former Cabinet secretaries and ex-FCO permanent secretaries) and 24 Conservatives, including former Cabinet ministers, combined to give a 100-plus majority on the amendment by Lord Kerr.
The Kerr amendment itself is rather odd. It requires the Government to report back to Parliament on its progress in seeking a customs union with the EU, before proceeding with the EU Withdrawal Bill. But it signals that, in the Lords at least, there is a big majority for the Government to seek some form of new customs union.
The Department for Exiting the EU issued a statement saying the Lords vote did not change the Government’s policy of leaving the EU Customs Union. But when the EU Withdrawal Bill returns to the Commons with the amendment incorporated, the Government will have to decide whether to provoke a showdown.
Parliament cannot order government to bring back legislation in its pending tray – but the chairs who sit on the Commons Liaison Committee have opted to schedule a debate next week on the customs union issue, using one of the three Thursdays they have at their disposal for Chamber debates.
The Government has decided to make this a one-line whip – rather than require its MPs not to vote as it has done on other potentially embarrassing Opposition Day motions. So interest will focus on how many Conservatives turn up and vote – and whether the shy Remainers decide this is a safe way to show their hand or – as former Deputy Prime Minister Nick Clegg argued at the Institute yesterday – decide to keep their powder dry until the “meaningful vote” on the deal.
It won’t be able to avoid a crunch in the autumn when it needs to get its withdrawal deal through both Houses. As we argued earlier this week, the crucial vote will be on the motion on the agreement – and Parliament has options well beyond the “take it or leave it” that the Government has said is on the table. If there is a majority in Parliament for a customs union, those members may seek to amend the motion to that effect.
The Government may hope that by then it will have managed to nail down convincing alternatives – especially on the Irish border. But so far it has failed to convince either the EU27 or customs experts in business that its option of a “new customs partnership” is a viable option in any foreseeable future timescale. So that lifeline may be looking even thinner by the autumn.
The Prime Minister has always been clear that her view is that the UK must leave the EU Customs Union to allow the UK to pursue an independent trade policy. Many of her Cabinet colleagues have come round to her view in the name of Cabinet unity, but others in her party remain unconvinced. And Labour has evidently decided to “weaponise” the issue by making staying in a customs union official policy.
The Government seems to think that it can neither politically back down nor test the view of Parliament without dissolving the precarious unity of the Cabinet the Prime Minister has managed to sustain. But at some point she needs to know where the votes are. Allowing her own MPs a free vote on next week’s Liaison Committee motion, which has no binding effect, could allow her to understand that and build that understanding into her negotiating strategy. On past precedent, though, she seems unlikely to take the risk.
A clearer view now of what Parliament will support could help the Prime Minister in the Brexit negotiations
Willingness to stay in a customs union would help deliver a solution to the Irish conundrum. But, of course, that would need to be a customs union that works for the UK. Parliament could add conditions – giving the Prime Minister a firm mandate on what she can and cannot accept – and turn the tables on the EU over Ireland where the UK has been on the back foot in all discussions to date.
The EU uses parliamentary mandates to strengthen its bargaining position. The Prime Minister should start to use the UK Parliament to strengthen hers.