The government has accepted all four of the European Research Group’s amendments to the Customs Bill, potentially averting parliamentary defeat later tonight. But has Theresa May given up her Brexit policy as a result?
Not really. The amendments commit the government to several things: no further barriers between Northern Ireland and the United Kingdom, for the United Kingdom to be bound from collecting excise receipts on the behalf of the European Union unless the arrangement is reciprocated by the European Union, and for the United Kingdom to be unable to stay in the customs union without primary legislation to that affect.
There is, of course, a strong possibility that the amendments won’t pass anyway, as the government can suffer defeat from either side of its party, and Conservative Remainers may opt not to play ball.
This has a couple of immediate consequences. The first is that it legally prohibits the British government from implementing a Northern Ireland-only regulatory and customs arrangement to prevent a hard border on the island of Ireland.
The thing is, though, that as May has repeatedly said, there is no way that any British Prime Minister could sign up to that arrangement and keep their job, and that is doubly true for any Conservative British Prime Minister. All that has happened is the jagged rocks which the British government must avoid at all costs have become jagged rocks which the British government is legally bound to avoid at all costs.
The second is that it upends the basis for May’s “facilitated customs partnership”. But the important thing about the facilitated customs partnership, and indeed about May’s Chequers plan in general, is that it is never going to happen. It is logistically unachievable and politically impossible for too many of the EU’s member states.
What matters about May’s Chequers plan is that in the only Brexit calculation that matters – whether the United Kingdom should prize the freedom to set its own regulations or access to the internal market of the European Union – she has decisively come down in favour of “access”. The largely nonsensical route May has sketched out to get there is, at the moment, essentially irrelevant.
What about the commitment not to stay in the customs union without primary legislation? That comes back to the big problem that both the government and the ERG have: that thanks to May’s disastrous handling of the election the only Brexit with a semi-plausible passage to passing the House of Commons is a soft one. And committing the government to passing its Brexit plans through parliament doesn’t unblock that central problem.
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