Friday 17 May 2024

The hard Brexit addiction

Two weeks ago, when I wrote my previous post, Brexit Ultras were cock-a-hoop because they believed that the EU and Ireland were being forced to ‘pay the price’ for having refused to countenance an Irish land border during the Brexit negotiations. As a result, asylum seekers within the UK were now entering Ireland via Northern Ireland so as to escape the possibility of being removed to Rwanda (or supposedly: see the post itself for discussion).

That ebullience has turned to dismay with this week’s ruling by Northern Ireland’s High Court that parts of the Illegal Migration Act do not apply in Northern Ireland (NI) because they breach human rights law and, thereby, breach the Windsor Framework. This is likely to mean that asylum seekers in NI cannot be deported to Rwanda, although the government will appeal against the ruling. Meanwhile, to the ire of Brexiters generally, and NI unionist Brexiters in particular, a potential incentive for asylum seekers to locate in NI, rather than the rest of the UK, has been created. Suddenly we are back to the old familiar lament that "Britain is paying the price for surrender to the EU" (£).

The roots of this lie deeper than the Windsor Framework, extending to both the 1998 Good Friday Agreement (GFA) and the original Northern Ireland Protocol (NIP). Although much of the discussion of these has been to do with trade and economic borders, central to the EU’s position in the Brexit negotiations was that there should be no dilution of the GFA, and included within that was that there be no diminution of the human rights provisions contained within the GFA (matters of no small concern to the US, as well).

The UK government agreed to this, and it is worth stressing that it did so quite willingly for, at the time, apart from perhaps a few on the fringe, Brexiters, and certainly the Brexit government, were adamant that Britain had no intention at all of threatening such rights, or the GFA in any respect, and all talk to the contrary was just more ‘Project Fear’. That the EU nevertheless sought legal commitment to this intention was, as can now be seen, a sensible and necessary precaution.

Not my Brexit (as always)

Thus when former Home Secretary Suella Braverman railed this week that the Windsor Framework has “failed upon its first contact with reality”, and is operating contrary to the “assurances given” to her at the time, that is pure nonsense. In fact, on its first contact with reality (as regards human rights), the Windsor Framework has done exactly what was intended from the outset. It is not clear what ‘assurances’ she was given, or who gave them, but if she believed otherwise then she is incompetent. However, this isn’t really the point she’s making. What she actually is trying to do is to disavow the fact that she was a member of the government which agreed the Windsor Framework (and, further back, one of the Tory MPs who voted unanimously for the NIP).

In this, Braverman is following a now familiar pattern as regards the Brexit arrangements for NI (and Brexit more generally). Over and over again Brexiter MPs who voted for them claim that they were misled, for example into believing the NIP to be temporary, or into believing that there would be no sea border, and, now, over the human rights provisions it entailed. There may be some truth in these claims to the extent that Boris Johnson repeatedly misrepresented the Protocol. However, that is no excuse for such MPs not to have grasped this central part of the Brexit Withdrawal Agreement, the more so given that one of their leading figures, Iain Duncan Smith, insisted that no more time need be spent debating it. The same goes for the Windsor Framework, and especially for a government minister like Braverman.

But all of this is a smokescreen. The reality is that, from the outset, Brexiters didn’t understand or care what their project meant for Northern Ireland and many of them still do not, or affect not to believe it. Only when, as individuals, they are in government, are they forced to confront it, as they are other Brexit realities. That happened to Theresa May and, for all his huffing and puffing, to Boris Johnson when he was Prime Minister, though he left a political crisis over the NIP the resolution of which, via the Windsor Framework, was one of Rishi Sunak’s few achievements, and one of the few times he faced down the Brexit Ultras. The same thing happened to Braverman, whilst she was in office, including when, in her second stint as Home Secretary she voted for the Windsor Framework.

But some Tory Brexiters either never held government positions or, as happened with numerous Brexit Secretaries and Brexit Ministers, resigned those positions rather than accept the realities of Brexit. They could then join the Farageist extra-parliamentary chorus of how Brexit has been betrayed and could have been done ‘properly’ if only the government had ‘stood up to’ the EU. So Braverman’s reference to ‘assurances’ that have proven false is simply her alibi for what the government she was part of did, and a brandishing of her credentials to join the ranks of the betrayed.

The Tory Brexit failure

All this in turn is part of the wider picture of what Brexit has done to the Tory Party. For the most basic and most brutal truth is that what has been their flagship policy since 2016, and defining purpose since 2017, has manifestly failed. That failure was well-captured by Rafael Behr’s pithy formulation in his Guardian column this week: “Brexit was a huge bet against the idea that geography mattered to economic and security policy in the 21st century. Geography won.” Week-in and week-out the evidence of that grows, with the latest examples including its role in the delays to the opening of the Co-Op Live Arena, its role in medicine shortages, and the border delays for perishable goods imports. Conversely, the realities of geography have continued quietly to play out, for example in shadowing new EU regulations (such as those relating to plastic bottle caps) and in re-joining the European High Performance Computing Joint Undertaking

But we need hardly rehearse once again all the economic and geo-political damage and pointlessness of Brexit, still less to trudge through all the wearisome attempts by Brexit ideologues to disprove it, or to grab hold of some tiny shred, usually misrepresented anyway, of supposed justification. The clinching evidence of its failure is that if Brexit had been anything even remotely like the success that was promised then, as we approach the first election since leaving the EU, the Tories would undoubtedly be trumpeting that success, and making their record of delivering it the central plank of their electoral platform. Instead, they barely mention Brexit any more, preferring to grub around with endless ‘re-sets’, gimmicks about banning civil service ‘woke lanyards’, and, of course, the more serious, but still gimmicky, Rwanda policy.

The nature of those gimmicks reflects how Brexit has been a failure in a different way; a failure not just for the country but for the Tory Party itself. For whilst the causes of Brexit are multiple, there can be no doubt that a significant one was the attempt by David Cameron and others to destroy the electoral threat of the UKIP ‘revolt on the right’. In that respect, its failure has been not just abject but total. Not only has that threat regathered (or perhaps we should say re-formed), as Reform UK, requiring the Tories to continue to seek ways to negate it, but the Tory Party itself has been substantially ‘UKIPified’. In particular, a substantial part of the right, both within and outside the party, regards Brexit as a foundational belief, but believes equally strongly that it has been betrayed.

The silence of the Tory leadership

So the Tory leadership, meaning not just Sunak but the party as a governing party, is now in an impossible situation (of its own making, so weep no tears). It can’t claim Brexit to be a success, because those who do not have a foundational belief in its rightness can clearly see it has failed, whilst those for whom its rightness is a foundational belief also believe that it has been betrayed. But it can’t denounce Brexit as a failure or a betrayal, since it is the Brexit the Tory leadership actually delivered.

This situation grows directly out of the wider political climate which Brexiters, meaning not just politicians but commentators and activists, have created since 2016. They showed no interest in trying to persuade their opponents that, despite their doubts, it could be successfully delivered – remainers were just told to ‘suck it up’, which they declined to do. Yet Brexiters themselves have been the most adamant that Brexit hasn’t been successfully delivered.

So the Tory leadership now has nowhere to stand: it can neither boast of Brexit nor disown it. It has to insist both that Brexit was the right thing to do, which only a minority of voters now believe, and that it was done in the right way, something which only a minority of that minority now believe, which isn’t electorally viable. Hence the near-silence (matched only, though for quite different reasons, by the Labour opposition).

The noisy minority

By contrast, Brexiters who insist Brexit was the right thing, but was not done in the right way, have a much easier time of it, so long as they can avoid the taint of responsibility for how it was done. This is the seam of grievance that is being assiduously and very loudly mined by Reform and by many Tories. For them, things like the Belfast court ruling offer the opportunity to keep punching on the bruise that the Tory government bungled Brexit, and did so through lack of true belief in real Conservatism.

Moreover, they can propound a Brexit 2.0 agenda of leaving the ECHR, as well as even more draconian anti-immigration and anti-asylum policies, far more easily than can the Tory leadership. For, in government, the practical consequences of this agenda would be all too clear. Sunak can make noises about the ECHR, but any government actually derogating from it would encounter massive problems, not least in relation to the GFA and the NIP. Outside government, these problems can be denied, or discounted simply by proposing to violate those agreements as well.

On immigration generally, whilst the government is willing to countenance considerable damage to universities and to businesses with its recent clampdowns, it is less clear that it would be able to weather the storm caused by the kinds of restrictions its even more right-wing critics want. It is one thing for voters to demand much lower immigration, quite another if they are forced to face the reality of the consequences. Even surveys showing majority support for reducing immigration also show majority support for making immigration easier for many key occupations, especially the NHS and social care. Certainly any government actually implementing a very low immigration policy of the sort advocated by Reform UK would immediately run into huge practical difficulties and, crucially, would still be denounced by those outside government as not going far enough.

For practical difficulties do not matter outside government, and, as with Brexit itself, they can be dismissed as ‘Project Fear’, generated by a self-interested globalist elite. That is why, in these dog days of Tory government, those within the party who aspire to its future leadership, perhaps including Braverman or Robert Jenrick, can develop ever-more impractical ideas, just as Reform can.

The same goes for those, like Liz Truss, canvassing for the PopCons, or for Jacob Rees-Mogg, who this week proposed an electoral pact (£), not far short of an effective merger, between the Conservatives and Reform, albeit that Farage immediately rejected that, at least for now. Meanwhile there is talk of self-styled ‘media personality’ Matt Goodwin and self-proclaimed ‘disruptor’ Dominic Cummings each launching new, populist, anti-immigration parties of their own. If so, there will be multiple parties fishing in the same murky, but electorally fairly limited, water, leaving all of them frustrated in their pursuit of power, not least because, in the process, they will abandon many of the centre-right voters upon whom the the Tories used to rely.

Chasing the dragon

Brexit and its aftermath are the key to all of these developments, and, although it is impossible to know how they will play out, there is a good chance that they will yield a long-term fracturing of the political right. That’s something which used to be thought more likely on the left. To an extent, it is what happened when the SDP split from Labour in the 1980s, and it might have been expected in the form of an ‘Old Labour’ split from ‘New Labour’ during the Blair years, or a Blairite split from Corbyn’s Labour, or the Corbynite left setting up a new party in opposition to Starmer. Arguably, the effect, and ultimate fate, of the SDP may have inoculated the Labour Party against such subsequent splits. But the post-Brexit right, high on dreams of purity and addicted to the dramas of betrayal and purges has, perhaps appropriately, not had the benefit of the vaccine.

It's against this background that many current events should be understood, including the perhaps not very important or enduring one of the Belfast High Court ruling. That ruling is, at one level, a reminder of the mess that Brexit has created as regards Northern Ireland and of the impracticality of separating the UK from all of the international obligations that Brexiter ideas of sovereignty entail. At another level, it is one more piece of ammunition for the Brexiters to propose making an even greater mess in Northern Ireland, since their ultimate aim is to renege on the NIP and the Windsor Framework (and in some cases probably the GFA, as well), and to redouble on their fantasy of sovereignty by reneging on the ECHR (£). The more general application of that logic is, perhaps, the ultimate trap that Brexit has created: anything and everything that shows the folly of Brexit is, for Brexiters, the justification to commit even worse follies.

If that seems like political madness given the electoral system, and public opinion, it is sustained by the memory of the high of 2016 when, very briefly, the Brexiters could lay claim to embodying the ‘will of the people’ and could believe that they really were the silent majority, not the noisy minority. It was a heady moment. The hit proved short-lived and ultimately disappointing, but, for Britain’s political right, it proved to be a gateway drug, and there is not much they will not do in search of another fix.

Friday 3 May 2024

Brexit border bewilderment

I don’t suppose that there is much political interest today in anything but the local election results, about which I’ll say nothing here except that anything now happening to the Tory Party is inextricably, even when indirectly, bound up with Brexit.  And, as the length of today’s post testifies, it’s not as if there is any lack of other Brexit news to discuss. Much of that news concerns, in different ways, the issue which both defines and bedevils Brexit: borders.

Early in the Brexit process, I wrote a post on ‘why Brexiters don’t understand borders’, which touched on some of the topics which will feature in today’s post, and it concluded as follows:

“I referred earlier to a very good article in the Daily Telegraph [by Peter Foster] on the implications of Brexit for Ireland and Northern Ireland and, within it, there is a revealing sentence from an unnamed British civil servant working on Brexit: ‘It seems as if every day something new we hadn’t thought of comes up’. That could almost be the strapline (and perhaps will be the epitaph) for Brexit. At every stage in the debate, Brexiters insist that it will be easy and that those who say otherwise are doom mongers; but every time those claims meet reality there turns out to be far more complexity than Brexiters believed (or at least than they told the electorate). Borders and what they mean are perhaps central to the Brexiter mindset: it is to say the least unfortunate that they don’t understand them. It is doubly unfortunate that we are all going to have to pay a very high price for their enlightenment.”

That was written in March 2017, but it is a suitable introduction to this week’s main Brexit developments.

Bordering on the ridiculous

The ongoing saga of the introduction of import controls reached a key moment on Tuesday, when the latest phase of controls came into force – except for those which didn’t, and for those hauliers who were waived through even when they had non-compliant paperwork, and for those consignments requiring the attention of inspectors who clock off between 7pm and 7am – further adding to the uncertainty and confusion surrounding the process. I’ve discussed this exhaustively, or at least exhaustingly, for years now, most recently in last week’s post, but it is still a notable moment not least because it has brought an upsurge in media attention, including reports in the Mail, on the BBC, and a particularly hard-hitting item on ITV News, as well as questions from MPs.

Amongst these media reports, an especially informative one came from Ellen Milligan of Bloomberg because it focused on the impact of the controls upon EU exporters, taking the important example of Danish bacon exports to Britain, tracing them from pig farm to arrival at the port of Immingham on the east coast of England. This was proper, detailed reporting getting, almost literally, out into the field, and it exposed the sheer bureaucratic complexity and cost Brexit has imposed on EU firms exporting to Britain (which, of course, has a mirror image for British firms exporting to the EU). In the process, it illustrated why smaller firms simply cease to engage in such trade. A report covering similar themes, but considering the case of Polish exporters appeared in The Times (£).

Counting costs

Apart from being informative in their own right, these articles were a useful addition to the bulk of the reporting, which was more focused on the UK importers, who also bear some of the new burdens, such as having to pre-notify and declare imports. Quite what all these costs amount to is a matter of dispute. The ITV report commissioned expert analysis suggesting a figure of £2.9 billion per annum, whereas the government claims it is only £330 million. A discrepancy of that magnitude suggests that totally different methodologies are being used, but since neither figure has any published details of how it was arrived at it is impossible to judge. However, Dr Anna Jerzewska, a leading international expert on trade and customs, was asked to provide an independent evaluation of the analysis underlying ITV’s figure, and stated it to be “robust”.

One yardstick by which to judge the government’s figure is that the Times report quoted the extra costs to just one Polish haulier of fresh poultry to the UK as being in the region of £1 million to £1.5 million per year. If correct, that makes the figure of £330 million a year for the total cost inherently implausible and, whilst of course I cannot prove this, I suspect that it is based only on the direct costs to UK importers. And whilst it is impossible to know without seeing the government’s – specifically DEFRA’s – calculations, it would not be unduly cynical to think that it has chosen a methodology to downplay the costs. Apart from anything else, if the costs really are so small, then what is the justification for the repeated delays in implementing the controls?

Mounting risks

It's true that there may be other answers to that question, in addition to cost, with one possibility being a desire to avoid the bad publicity for Brexit of border queues. But whatever the answers are, the delays demonstrate irresponsibility, given that the Department for Environment, Food and the Rural Affairs (DEFRA)  itself is saying (accurately) that “a robust and proportionate border regime is vital to ensure we can protect our food system against biosecurity threats” and that “these border checks are fundamental to protecting the UK’s food supply chain, farmers and natural environment against costly diseases reaching our shores.” What, then, of the continuing elevation of the risk of those threats from the ongoing delays in implementing the border regime?

Indeed, there is much disingenuity in the entire way the government is presenting this issue (just as there is in the way that Kemi Badenoch presented the latest trade figures this week). The DEFRA announcement just referred to includes another example, suggesting that the new regime represents a “saving” because it is (supposedly) cheaper than the original plan for the post-Brexit regime. Perhaps so, but it still represents a cost of Brexit. That fact is also continually smudged when the government (and some media reports) imply that all this is not so much about Brexit as about the government’s decision to develop an entirely new Border Target Operating Model (BTOM) for imported goods, for reasons of bio-security policy.

This misleading implication is possible because it is true that the BTOM is designed to cover imports from the whole of the world, not just from the EU, and in that sense has elements which are not directly to do with Brexit. However, it would not need to include EU imports (or not to anything remotely like the same extent) had it not been for Brexit, and it is highly unlikely that, but for Brexit, the BTOM would have been introduced for rest of world imports. For, despite much misunderstanding, some of it apparently wilful, along the lines that there is no reason why imports from the EU should be any riskier now than when Britain was a member of the single market, this is not so. The government is introducing controls on EU imports, albeit far too slowly, not for the fun of it but because they are now necessary for such imports, just as they have always been for non-EU imports.

What happens now?

This story still has some way to run. Not only is this phase of controls not yet fully operational, but there are new phases coming in October, and still more next year, including the introduction of import controls on goods from Ireland. Equally, there is a time lag between controls at the borders and the knock-on effects on the viability of businesses, prices, and product availability on the shelves. More in future posts, no doubt.

Border bafflement

Meanwhile, borders also feature in another of this week’s big news stories, the row between the UK and Ireland over asylum seekers. I don’t think that in all the years I have been writing about Brexit, I’ve ever come across an issue so convoluted and difficult to unpick, especially as the story was still unfolding whilst I wrote this post. As a result, I’m still not sure if I have got the details right, and (as always, in fact) I’m more than open to correction.

Initial reports suggested that the Irish government intended to pass a law so as to be able to return asylum seekers who are entering Ireland via Northern Ireland (NI), to the extent of accounting for 80% of “recent arrivals” of such asylum seekers (ASs) in Ireland, although this figure has subsequently been questioned. Moreover, it was held that the reason this was happening was the British government’s ‘Rwanda policy’. The political context of Ireland’s announcement is the increasingly violent far right anti-immigration and anti-asylum seeker protest movement, so it can be read an attempt to appease this, rather as Britain’s Rwanda policy is an attempt to appease similar movements and political pressures in the UK.

It has been questioned whether the Rwanda policy is what is driving any increase there may be of ASs moving to Ireland via NI. Clarity is not aided by the British government’s contradictory response, with, on the one hand, a Downing Street spokesperson saying “it is too early to jump to conclusions” about whether the Rwanda policy was having this effect whilst, on the other hand, Rishi Sunak implicitly endorsed the claim that it was by saying that it shows the policy is already “working as a deterrent”. Those things can’t both be true. Moreover, if there is such an increase, whatever the cause, then unless, I’ve missed them, there is no reporting on how this is happening. Presumably it would entail ASs arriving in Great Britain and making their way to Cairnryan in Scotland and thence by ferry to Larne (which, as I understand it, requires passengers to provide photo ID). But, if so, there would surely be reports of large numbers of them doing this?

An additional complexity is understanding just what it is that the proposed Irish legislation would do. The early reports seemed to suggest it would mean legislating to deport the relevant ASs to the UK, However, it quickly emerged that Ireland’s plan was actually to legislate that Britain is a “safe third country” to which ASs can be returned in the face of a recent Irish High Court ruling to the contrary (this ruling was not, however, because of the UK’s Rwanda policy).

Whatever form any eventual Irish legislation takes, it is not obvious what would follow. On the face of it, deporting ASs who had arrived via the UK back into the UK would be no more feasible or legal than the idiotic claims by hard line Brexiters that ASs arriving in Britain from France could simply be returned en masse to France. One such is Richard Tice of Reform UK, who – like a schoolboy boasting to his friends that he has a wonderful girlfriend, but they wouldn’t know her ‘as she goes to a different school’ – insisted this week that he has ‘advice from his own lawyers’ saying this would be legal. It is an irony, though, given those claims, that the Brexiters have been so outraged by suggestions that Ireland might apply the same approach to Britain that they want to apply to France.

Agreement, what Agreement?

At all events, Sunak has unequivocally rejected the idea of any agreement to take ASs back from Ireland, at least unless the EU agreed that the UK could return ASs to France. However, this is where things get particularly opaque, because politicians, not least the Irish Taoiseach Simon Harris, and many media reports have spoken of an already existing post-Brexit bi-lateral agreement under which such returns are possible, and Sunak seems to accept there are ‘operational arrangements’, albeit no legal obligation (£), to effect returns. The agreement referred to appears to be related to the operation of the Common Travel Area (CTA), the system, going back to 1923, although with some intermissions, whereby there is freedom of movement for British and Irish citizens across and throughout both jurisdictions.

However, despite all the references to it, no one seems to be clear about what this asylum deal actually is. The continuation of the CTA after Brexit was affirmed by a Memorandum of Understanding (MoU) between the British and Irish governments, created in May 2019 and it seems possible that this is the agreement in question, although it says nothing specific about asylum seekers [1]. It also doesn’t tally with the 2020 date given in media reports for the MoU, and although there was a CTA MoU in that year it related specifically to healthcare. The 2020 Withdrawal Agreement also makes reference, in the Northern Ireland Protocol, to the maintenance of the CTA, but again does not seem to suggest any specific agreement on asylum returns, and anyway anything that was in this Agreement would, unlike a MoU, be legally binding on the UK.

On social media, attention has also been drawn to an unsourced fragment of text which refers to the two countries facilitating the return of individuals to “their country of origin” if they have entered the CTA unlawfully. A lot of digging reveals that the source of this is a still operative, but pre-Brexit, 2011 Joint Statement by the two governments about securing the CTA’s external border, which relates in turn to the somewhat secretive and still ongoing joint Operation Gull programme which serves that purpose [2]. However, this doesn’t mean returning such individuals to the country within the CTA from which they came, it means (potentially) the country from which they originated, and it certainly isn’t the post-Brexit agreement Harris and others appear to have in mind.

Nevertheless, to the extent that there is CTA dimension to this, which is to say a specifically UK-Ireland agreement, and even more if there has been a specific post-Brexit agreement relating to asylum returns, then the parallels between UK-France or UK-EU arrangements do not hold.

Brexit aspects

So here Brexit begins to enter the story more explicitly, albeit in complicated ways. One aspect is that, pre-Brexit, the Dublin III regulations enabled, in some though by no means all cases, Ireland to return ASs to the UK (and vice versa) if that was where they had made their first application for asylum. And this indeed happened. According to Bernard Ryan, Professor of Migration Law at Leicester University, in the period 2008-2014, the UK made 1334 such requests to Ireland, resulting in 753 transfers of persons, and Ireland made 815 requests to the UK, resulting in 357 transfers. However, post-Brexit, the UK is no longer a part of the Dublin regulations (a side-issue here is that these regulations are themselves in the process of change).

Amid much confusion in media reports and social media discussions this week, Law professors Colin Murray and Steve Peers produced an excellent detailed briefing on the current legal situation. What it revealed is a complex hodge-podge of EU law, Irish law, UK law, the particular post-Brexit provisions for NI, and, indeed, the provisions, both legal and customary, of the CTA. It is well worth reading in full, but on my interpretation (which I stress again is highly tentative) there is nothing here which, in any ordinary meaning of the term, constitutes an agreement, whether relating to the CTA or not, whereby ASs arriving in Ireland from the UK can simply be returned.

Instead, as Murray and Peers put it: “Amid the tangle [of] post-Brexit arrangements, both countries appear to be talking at cross purposes”, a situation not helped by the “low trust context” which militates against them “engaging with each other in the close collaborative relationship that the CTA requires”. They don’t say it explicitly, but I assume they mean by that the context created by Brexit and the manner it was undertaken.

A second aspect is that several Brexiters have responded to the current row (£) by suggesting that it somehow means that Ireland and the EU are reaping the results of having insisted during the Brexit negotiations that there could be no land border between Ireland and Northern Ireland, and specifically no checks on people moving between the two jurisdictions by virtue of the CTA. They are also suggesting that Ireland is about to install such a border, though this is based on what would seem to be a misunderstanding of a report that the Irish government has deployed extra police on “frontline” duties of prevention and deportation.

Undoubtedly those now claiming a ‘gotcha’ moment (£) are those who have never understood or accepted that the Good Friday Agreement effectively precludes such a border. In any case, they are now missing the rather crucial fact that it was British Brexiters, more than anyone else, who had been adamant that the CTA would continue and, moreover, that this was their supposedly definitive rebuttal of the ‘Project Fear’ warnings issued by Tony Blair, John Major, and others, about what Brexit would mean for the Irish border.

How did we get here?

Most notably, this was the position of Boris Johnson and of the then Northern Ireland Secretary (and keen Brexiter) Theresa Villiers. It was a position founded on ignorance, to the extent that, as the Brexiters (or, at least, the ones who had to take responsibility for enacting Brexit) gradually came to grasp, the issue about the border was not just about the movement of people but also the movement of goods and livestock, and the various processes and checks needed (the same, indeed, as with the GB-EU border controls discussed above). Hence, by a long and slow route, we ended up with the Irish Sea border, with all that that has meant, including the Windsor Framework.

Along the way, discussion of the free movement of people across the island of Ireland became curiously muted. Amongst the pre-referendum warnings of the remain campaign, Major and Blair had highlighted not just the matter of customs controls but that of immigration from the EU. For example, Blair said that if there were no immigration controls between Ireland and Northern Ireland then: “It would make a nonsense of their entire argument for leaving which is all to do with the free movement of people in the European Union.”

At stake was that if there were no border checks then what would stop someone coming to Ireland quite legally from any EU country, under freedom of movement rights, then entering the UK via Northern Ireland and living or working illegally? I was not alone in thinking, in the early days of the Brexit process, that this was going to be a major question. Indeed, at that time, the government itself mooted the idea of moving frontline UK immigration controls to Ireland’s ports and airports (no one seemed to give any consideration at all to the possibility of movement in the other direction, from the UK to Ireland, whether that be of ASs or non-EU nationals residing legally in the UK).

In the event, whereas customs and other controls on goods were located across the Irish Sea, the issue of illegal immigrants from the EU was left to detection when in situ by landlords, employers, banks etc., and surprisingly little has been heard of it since. The only time it has become a matter of much public debate was not in relation to EU nationals or to asylum seekers but when it was raised in 2022, by the then British Home Secretary Priti Patel, in relation to Ukrainian refugees accepted by Ireland potentially entering the UK through ‘the back door’, under cover of the CTA. However, I’m not aware of any evidence that this actually happened, or if it did then to any great extent, nor of there being any talk at that time of a ‘returns agreement’. And so things rested until the last week or so.

What happens now?

How this current row will play out remains to be seen. Some reports have suggested that the two governments are keen to dial-down a dispute which has been “escalated out of all proportion”. I am not so sure. It arises out of what, in both countries (as in many others), is an extremely toxic politics around immigration in general, and asylum in particular, which many politicians are all too ready to exploit and exacerbate, especially with both countries facing general elections in the next twelve months.

Not the least of that toxicity is the wholly repellent dehumanization of ASs as some sort of malign parcel to be passed from country to country to ‘deal with’ or worse, according to the depraved comments of Reform’s Deputy Chair Ben Habib, left to drown. Habib later tetchily claimed to have been misrepresented, but his comments, which seemed to shock even the Talk TV shock-jock Julia Hartley-Brewer who conducted the interview, are on the public record for people to judge for themselves.

Whatever the challenges they may pose, these are people, including people broken and traumatized by suffering. And if it should be that some are ‘economic migrants’, whose asylum claims are not valid, well, they are still people and, very likely, people who have become economic migrants as a result of great hardship. Either way, they should have their claims processed quickly and fairly. Doing so does, indeed, pose challenges, as does the successful support and integration of those whose claims are found to be valid. The way to deal with those challenges can only be through concerted global action, both as regards the organization of asylum claims and destinations and as regards the multiple root causes of the need for asylum-seeking. That isn’t easy, to say the least, but it is emphatically made more difficult by nationalism and xenophobia.

This is clearly a bigger issue than the EU and Brexit, and it can hardly be said that the EU or its member states are paragons of virtue (one of the silliest of Brexiter ideas is that those who oppose Brexit see the EU, in this or any respect, as some kind of nirvana or, conversely, that its failure to be perfect in every respect is a good reason not to belong to it). But it is at least an attempt to address asylum collectively in at least one segment of the globe. One of the follies of Brexit is that it has absented the UK from this attempt, whilst another is the antagonism and mistrust it has brought to Anglo-Irish relations. By no means all the costs of Brexit, and perhaps not even the greatest costs of Brexit, are economic.



[1] The 2019 MoU was drawn up at a time when a ‘no-deal Brexit’ (i.e. no Withdrawal Agreement) was possible, and I wonder if the references to 2020 are because, in effect, its provisions became duplicated by the Withdrawal Agreement/ Protocol. If it should emerge that there was a MoU about asylum returns, separate to the Withdrawal Agreement, then Sunak would be right to say that it was not binding in international law, but to renege on such a MoU, relating as it would to NI, would surely have very severe reputational consequences and damage relations with Ireland, the EU, and the US.

[2] The secrecy about this arises, I assume, not because of the asylum issue but because of the still existent NI terrorism threat.

There will be no post next Friday

Friday 26 April 2024

(Still not) facing up to Brexit

During the more dramatic phases of the Brexit process, it was not unusual for some big development to occur just as I was finalizing my post for this blog. It happens less often now, but it did so last week, with two important announcements being made last Thursday, by which time I had largely written what became last Friday’s post, on Gibraltar and Brexit (since this was about a possible deal which hasn’t yet happened, it was a double fault on my part). The first announcement, which I only mentioned in passing in that post, was of further delay in the introduction of import controls on EU goods. The second, which I didn’t mention at all, was about the possibility of an EU-UK Youth Mobility Scheme.

Not taking back control

It’s actually not such a bad idea to have a gap between announcements and analysis, as ‘hot takes’ often miss important nuance. That applies to a degree to the Youth Mobility Scheme (YMS) issue, which I’ll come back to, but hardly at all to that of import controls. In the latter case, there is hardly a ‘hot take’ available, given that almost everything that could be said about it has been said on the five previous occasions controls have been postponed. Last time I discussed the issue, two weeks ago, when the common user charge was announced (about which, interesting new data and analysis of its likely costs was published this week by the UK Trade Policy Observatory), I said in a response to a comment on that post that the reason the checks were going ahead this time was that a further postponement “would be too ludicrous”. So that was yet another blunder on my part, and a particularly foolish one as I ought to know that nothing is too ludicrous when it comes to Brexit.

I don’t see much point in rehashing the reasons for this mess, which has its roots in the refusal by the government, and by Brexiters in general, to accept that such controls were the inevitable consequence of hard Brexit and, as such, have been in prospect since at least January 2017. Yet only in December 2020 did the government produce its policy paper on the ‘2025 UK Border Strategy’, having meanwhile refused to extend the transition period, thus creating a highly unrealistic timescale for a system that is heavily reliant on government IT procurement, as well as a new physical infrastructure (some of which has turned out to be unnecessary as government plans chopped and changed). There is, no doubt, a whole book to be written about the many mis-steps there have been along the way, and it is a reminder that the UK was not only totally unprepared for this very core aspect of Brexit, but is unable to afford it.  

The only nuance to be added about this latest delay is to note that the government has now created an almost dizzying array of partial introductions and phasing-in of measures. Part of that was in-built from the start. Whereas the EU introduced full controls the day after the transition period ended, the UK version was not just later but always included, for example, the phasing of dates by which, first, new paperwork requirements were introduced and, then, physical checks, as well as there being different dates according to the risk categorization of the product in question. But, on top of that, further layers of complexity have gradually been added. Examples include the announcements in March of a delay until 2025 on checks on goods coming from Ireland and, in January, that the risk categorizations of various fruits and vegetables had been changed so as to come within the ambit of checks, but, in these cases, not until October.

This has made it easier for the government to pass off this latest delay as if it were no more than a further ‘technical’ change to risk categorizations, so that only the highest risk goods will have physical checks “turned on” at the end of this month (though the common user charge will begin, regardless of that). As a result, this delay has passed off more quietly than the previous ones, for few people, unless directly affected, can begin to understand, still less to be much agitated by, changes to what has become so byzantine a story. However, those who are affected most certainly are agitated by a system which, in the words of the Chair of the Small Business Federation (£), “is in complete disarray”.

Labouring the point

From a policy, or public administration, perspective, what has happened is a farce, and one which, politically, could have a major impact if, as it risks, there were to be a major outbreak of animal or even human health disease as the result of contaminated products being imported. However, for the moment, the main political talking point is whether this latest delay amounts to a political trap for an incoming Labour government, forcing it to be the one to introduce controls which are likely to create long queues and supply disruptions, as well as price increases and reduced consumer choice.

My own view is that it is more likely that, fearing such effects, the Conservatives’ intention is more about avoiding that happening before the election than laying a trap for Labour afterwards. That is because one of the few Brexit-related commitments Labour seem clear about is to seek a Sanitary and Phyto-Sanitary (SPS) agreement with the EU which, if made, would obviate the need for most of these controls. That would, however, entail Labour accepting ‘dynamic alignment’ (about which they have been coy) and, even though it is likely the EU will be agreeable, it will take time to negotiate. So it can’t be ruled out that Labour would need to introduce some additional, interim checks beyond whatever is in place by the time of the election.

It is a mark of this strange political period we are living through that there is much attention to what an incoming Labour government would do. It’s not just that, as I wrote recently, we are a country on hold. It’s that this has been going on for so long, and the opinion polls suggesting a huge Labour victory have proved so durable, that political commentators have virtually lost interest in speculating about the next election and are already talking more about the government that will follow or, even, the election which will follow that. In some cases, that next Labour government is already being written off as a failure, doomed to win only a “hollow victory”, to become immediately unpopular with the public, and to be internally “ungovernable” into the bargain. All these things may prove true, but such predictions seem rather premature when we are probably six months from an election that has still to be fought, let alone won.

No mobility please, we’re British

Nevertheless, speculation about what a future Labour government would do is perhaps the key aspect of the other of last Thursday’s news stories. This was what was unhelpfully and misleadingly reported as an offer from the EU to the UK of “free movement for young people” (meaning 18-30 year-olds). It was misleading, firstly, because it was not an ‘offer’ to the UK. It was a proposal and recommendation from the European Commission to the Council which, if accepted, would empower the Commission to launch negotiations with the UK. Secondly, as the detailed text makes clear, the proposal is not for ‘free movement’, even for this age group, but would have severe constraints including on length of time (probably four years) and location (movement would be confined to one EU country, rather than to the EU bloc), and several other restrictions.

The idea behind the proposal is not novel, in the sense that something like it was envisaged in the non-binding Political Declaration that accompanied the Withdrawal Agreement. That never got developed in the Trade and Cooperation Agreement talks because Johnson and Frost declined to do so, in line with their minimalist approach to the negotiations. That the EU should be making such a proposal at this particular moment is a matter of some speculation, but the Commission’s text includes under the heading ‘reasons for and objectives of the recommendation’ the words: “In the course of 2023, the United Kingdom approached several (but not all) Member States with the intention of negotiating arrangements on youth mobility, modelled upon the United Kingdom’s youth mobility visa scheme. This approach would result in differential treatment of Union nationals.”

Thus many well-informed commentators, including Anand Menon, have suggested, and I agree, that this suggests that a key motivation for the timing of the proposal was to fend off UK attempts to make bi-lateral agreements with EU member states, and, conversely, to preserve a union-wide approach to managing UK-EU post-Brexit relationships. This relates to a point I made in last week’s post, about how the UK has never really learned the lesson contained in the very first draft of the EU’s approach to the Brexit negotiations, namely that the bloc would act as a bloc. That failure doesn’t just show a continuing naivety about the EU. In the case of seeking bilateral youth mobility agreements, it also shows a maladroitness of diplomacy since those EU countries excluded from such approaches, and likely to resent that exclusion, are also likely to include some with which the UK is keen to have good relations for other purposes, such as defence or the control of irregular migration.

However that may be, the government immediately rejected the EU’s ‘proposal’ whilst repeating its preference for “country-by-country deals” with some EU members thereby displaying, at the least, a diplomatic tin ear and, at most, and in fact, its failure to learn that wider lesson. With equal alacrity, Labour stated that “it has ‘no plans for a youth mobility scheme’ if it wins the general election later this year” and that “it had already pledged ‘no return to the single market, customs union or free movement’ if it takes office.”

There was little to be surprised about in either reaction. The stranglehold the Brexiters have on the Tory Party needs no rehearsing, and the tedious assertion (£) of one commentator that this development meant that “the EU has finally admitted it needs Britain more than we need it” suggests that some parts of Brexitland still have the 2016 calendar on the wall. As for the Labour Party, as I noted recently, infuriating as many ‘remainers’ find it, there is simply no prospect of it making any fresh commitments about the EU before the election. However, the formulation of Labour having ‘no plans’ for a YMS is one which leaves a tiny amount of wriggle-room, whilst the reference to the freedom of movement ‘red line’ is, strictly speaking, irrelevant given that YMS is not freedom of movement. So it remains possible that they will become bolder on YMS and other EU matters after the election.

What is a certainty is that they won’t do so any earlier. Labour resemble a team in a three-legged egg and spoon race, with the egg being made by Faberge. They aren’t going to risk the tiniest spill by giving the Tories and the Brexit press an angle to attack them. That carries its own risks, even pre-election, as it might boost support for the LibDems, who favour a YMS. It also carries risks for post-election room for manoeuvre. But, like it or not, and agree with it or not, it is obvious that Labour have decided to take those risks.

Them and us

The political dynamics of the YMS proposal for Labour have led to much comment that the Commission’s timing was unhelpful to Starmer. Such comment is misguided, not just because, as discussed above, the timing had a different motivation, but because it is based on a fundamental misunderstanding about Brexit. However, I don’t think that misunderstanding is quite as presented by Menon, when he says that “some in the UK need to rid themselves of the idea that the EU are falling over themselves to get down to business with a new Government”.

I take that point to an extent – the EU’s approach to the UK will be driven by its own interests, not vague sentiment – but I also take the points made in response to it by Mujtaba Rahman of the Eurasia Group, another highly respected expert on UK-EU relations. Rahman thinks, rather as I do, that the geo-political context is now so different to that which obtained during the Brexit negotiations that quite significant developments in those relations are in both the EU’s and the UK’s interests, and are not just limited to security in its narrow sense.

Nevertheless, what continues to have definitively changed as a result of Brexit is that the EU no longer has any interest in tip-toeing around political sensibilities in the UK. There was a great deal of that when Britain was an EU member, just as there is for any member. Brexiters represent it as a weakness of the EU that it needs to accommodate the often-diverging priorities of its members (for example in trade negotiations), whilst simultaneously lambasting the EU for over-riding those priorities. But the reality is that the EU is a constant negotiation between these two poles.

In the UK’s case, its multiple opt-outs from core EU projects showed Brussels’ recognition of the constraints of British politics. That recognition continued even during the Brexit negotiations, but effectively ended once the Theresa May Withdrawal Agreement was finalised*, and the change was crystallised in one specific moment, in February 2019, when Donald Tusk made his ‘special circle of hell’ comment about those who had led the campaign for Brexit despite having no idea about how to deliver it. He did so knowing, but no longer caring, that, as Leo Varadkar warned, the British press would ‘have a field day’ with his remarks.

At all events, the point now is that, although Brexiters and the pro-Brexit media remain obsessed with the EU, the EU is no longer interested in them, and still less in placating them. That is not just a matter of indifference. Crucially, it is because, to the extent that there is indeed an EU interest in agreeing closer relations with the UK, that interest is only served by durable agreements with the UK state, rather than any that might be ‘slipped through’ by any particular UK government. In other words, if agreements were only possible through carefully-timed diplomacy that is sensitive to the domestic political constraints of such a government, then they would be inherently fragile.

 So it isn’t just that the EU isn’t interested in placating UK domestic political divisions, it’s that its interests aren’t served by agreements which rest on it placating such divisions. That applies to the YMS, but, writ large, it applies to any and every agreement that might be reached, up to and including the UK re-joining the EU. The consequence is that any progress that a future Labour government might make in repairing the damage of Brexit will require it to build a sustainable domestic political consensus for that repair quite as much as it will require negotiation with the EU.

Us and them

It is clear we are a long way from such a consensus. Indeed, the two stories discussed in this post are amongst many examples of the way that Britain is incapable of facing up to Brexit. In the case of import controls, we literally shy away from the damage of enacting Brexit. In the case of YMS, we can’t give careful consideration to, let alone accept, even a quite modest reversal of the damage which enacting Brexit has done.

I’m sometimes told that it is only ‘people like you’ who are still going on about Brexit, and that no one except a few ‘remainiacs’ cares about it anymore. If that were true, the path ahead would be easy and quick, leading at the very least to a very much closer relationship with the EU. But the reality is that there are plenty of voters, and a very large segment of the political class and commentariat, who continue to care very deeply about Brexit and who have scarcely moved on from positions they held years ago. David Frost, writing with Robert Jenrick in the Telegraph this week (£), is a prime example, still chuntering on about the need to “defend” Brexit rather than treat it as “an embarrassing secret”, still holding out the myth of wonderful Brexit benefits that can be unleashed, and still – incredibly – trotting out the line that the Northern Ireland Protocol was only “temporary” and that the Windsor Framework should either be re-negotiated or unilaterally dropped. Meanwhile, for all that ‘remainiacs’ bemoan Starmer’s rather constipated timidity, Frost insists that even that would be enough for Labour to “undo” Brexit.

It would be nice, and in a better polity it would be accurate, to regard Frost as no more than a fringe figure, promoted well beyond his competence, and seeking to defend his own indefensible legacy. But he speaks for the now rampant Brexitism of the Tory Party, as shamefully displayed with the passing of the Rwanda Bill this week. The Rwanda policy comes from the same ideological maw as Brexit, exhibits the same preference for belief over reality (‘Rwanda is a safe country’) and the same fantasy that ‘sovereignty’ can make it so, shows the same indifference to international reputation, and will share the same fate of simply not being able to do what it promises it will do. The only sense in which it is not the embodiment of Brexitism is that the hardline Brexitists think it doesn’t go far enough.

It is this implacable Brexitism which, without representing the majority of the population, is powerful enough to hold the rest of the country to ransom. It is a large part of what prevents us from undertaking the kind of honest national self-assessment provided by an excellent new book by Financial Times’ journalist Michael Peel, What Everyone Knows about Britain (except the British). Of course, such an assessment, when undertaken collectively, is never going to yield unanimity – in a pluralist society, that’s impossible by definition – but we do need a broadly shared understanding of some key policy issues, most notably immigration, and of Britain’s place in the world. If there is such a thing as national political psychology, then we are in dire need of an intense course of psychotherapy.

Some may bridle at my use of ‘we’ and ‘us’ in all this. The fault, after all, lies with the Brexiters and Brexitists – with ‘them’, not ‘us’. It’s certainly highly tempting to think so, and I doubt I’m the only person to still have a “don’t blame me, I voted remain” mug lurking in the cupboard. But, as time goes by, I’m increasingly convinced that this is part of the problem that Brexit has bestowed, rather than part of any process of solution, and that conviction has been increased by reading Peel’s book. There’s a sense in which we have, collectively – through the kinds of political institutions and political discourse we have allowed to develop or persist – arrived at this point, whatever individual lack of culpability any one of us may, with some justice, feel we have.

I’m not sure where that thought leads (perhaps I’ll return to it in a future post). I don’t mean to absolve Brexiters for what they have done, and are still doing. But I suppose it implies the need for a greater recognition from those of us who oppose Brexit that what lies ahead is going to be a slow and arduous process of consensus-building as regards repairing the EU relationship, as well as of wider political reform. If Brexit teaches us anything, it is to be sceptical of quick, easy, and simple solutions to complex problems, and Brexit has bequeathed us a complex problem.

That said, the costs, both economic and non-economic, of Brexit are so high that we don’t have much time to play with. If consensus-building is the pre-condition of a solution, it won’t happen on its own but will require political leadership. Realistically, that can currently only come from a Labour government facing up to Brexit. So, whilst Labour’s extreme pre-election caution is clearly not going to change, the moment the election is won they must not delay in starting to provide such leadership. How likely is that? I don’t know, but it’s the best hope that we have.



*It could be argued that it re-appeared at the moment that Varadkar and Johnson had their ‘walk in the park’ that led to the revised Northern Ireland Protocol. However, I think that was much more about Varadkar’s and Ireland’s interest in the island of Ireland than it was about trying to accommodate English Brexiters.

Friday 19 April 2024

Gibraltar, and reviewing the Brexit 'bill of goods'

Last Friday saw a potentially significant piece of Brexit news with the joint statement of the first meeting in its current format of political leaders from the UK, EU, Spain and Gibraltar, which reported that “significant progress” had been made towards achieving an agreement about the post-Brexit arrangements for Gibraltar. This was followed by widespread media reports that such an agreement was very close, and “within kissing distance” in the words of Gibraltar’s Chief Minister, Fabian Picardo.

An agreement about Gibraltar was described in the Financial Times (£) as “the last big unresolved problem of Brexit”. That is slightly misleading in the sense that Brexit is, and will remain, an ongoing process, giving rise to ongoing problems, and even to ongoing negotiations, if only because of the joint governance structures that exist in relation to various part of the Withdrawal Agreement and Trade and Cooperation Agreement. But it is true in the narrow, yet important, sense that it marks the end of the negotiations which began in 2017 between the UK and the EU about the institutional form of Brexit.

As such it is a good time to take stock of the Gibraltar strand of Brexit and how that intertwines with the Brexit saga and, ultimately, to the extent that it does represent a certain kind of completion, a good time to take stock of Brexit itself.

Gibraltar and Brexit

Gibraltar’s situation is complex. As a British Overseas Territory it is not part of the United Kingdom but is a part of the UK’s sovereign territory, a sovereignty long-disputed by Spain since having conceded it in the Treaty of Utrecht of 1713. In recent years Spain has sought various models of joint sovereignty over what the UN currently characterizes as a non-self-governing territory. However, Gibraltar has twice, in 1967 and 2002, held referendums showing massive 99% majorities for remaining as UK sovereign territory. Yet in the Brexit referendum, opinion was completely different to that of the UK itself, with 96% support for remaining within the EU. This situation, along with the military significance of ‘the Rock’, its border and economic entanglement with Spain, and its role as a tax haven, means that Brexit posed a particular conundrum.

Even before the referendum, the status of Gibraltar was a fraught issue in UK-Spanish relations, so it is actually quite surprising that negotiations over its post-Brexit situation have dragged on rather quietly for so long, especially given that it gave rise to the first flashpoint in the Article 50 process. 

To briefly summarise that row, immediately after the UK gave notice under Article 50 at the end of March 2017, the EU Council produced its draft negotiation guidelines, which included a paragraph to the effect that no agreement on the EU’s future relationship with the UK would apply to Gibraltar without the agreement of Spain. Quite what that meant at that time was slightly obscure, since there were different understandings in play as to whether the future relationship would require unanimous agreement of all EU members (which would include Spain anyway), and for that matter different understandings of how the future relationship would be negotiated (at that stage, the UK was still pushing for it to be done in parallel with the Article 50 talks).

However, one thing it very clearly meant, even if only symbolically, was that the EU regarded Spain as having some kind of special status as regards Gibraltar and, whilst that might be taken to be no more than a recognition that it was the only country apart from Ireland where there was a land border with the UK territory, it also seemed to recognize, if not to uphold, Spain’s claim to sovereignty over Gibraltar. Certainly that was how it was taken by Brexiters, and it unleashed a torrent of jingoistic nonsense, to the extent that some even speculated about going to war with Spain over the issue.

This episode happened almost exactly seven years ago, and many may have forgotten it, but it is worth recalling now, not just because a Gibraltar deal is finally in the offing, but because even at the time it foreshadowed some more general lessons, which I identified in my post of 2 April 2017, the consequences of which are still playing out.

The lessons of Gibraltar

Lesson #1: The negotiating process

One lesson was, indeed, about the issue of the sequencing of exit and future terms negotiations, and the fact that the EU was clearly not going to accept the UK’s suggestion, in Theresa May’s Article 50 letter, that these be conducted in parallel. The roots of this actually went back much further. Before the referendum, the Vote Leave campaign had promised: “Taking back control is a careful change, not a sudden stop - we will negotiate the terms of a new deal before we start any legal process to leave.” This was always nonsense in terms of the Article 50 process – the only legal leaving process that existed – and an hour before the referendum result was officially confirmed the European Council had already circulated an advisory note to EU members reiterating this.*

In one way, that lesson was fairly quickly learned. Having threatened that it would be the ‘row of the summer’ of 2017, when the time came, shortly after May’s disastrous 2017 election, Brexit Secretary David Davis immediately capitulated to ‘sequencing’.  Yet in other ways the lesson went unheeded in that, throughout the negotiations, UK politicians and the media frequently confused or conflated exit and future terms, and Boris Johnson deliberately did so in the 2019 election, when he proposed his ‘oven-ready deal’ as something which would ‘get Brexit done’ when it was, in fact, only the exit deal.

Ever since then, many of the Brexit Ultra MPs have persisted in the belief that the Northern Ireland Protocol part of that deal was somehow temporary, contingent on the terms of the future trade deal (on the most charitable interpretation, this rests on a confusion between Johnson’s ‘front stop’ Protocol and May’s ‘backstop’, but even that degree of charity entails that those MPs were lamentably incompetent). More generally, even now, Brexiters represent the acceptance of sequencing as the first failure of May to ‘play hardball’ with the EU, and hence it is a foundational component of their explanation of why Brexit hasn’t been done ‘properly’.

It’s a myth which will not die, and was trotted out yet again this week by Liz Truss (as she seeks to drum up sales for a political memoir variously described by reviewers as “self-serving” and “ludicrous”, “shamelessly unrepentant, petulant … and cliché-ridden”, and “weird”). I suspect it will be years, if not decades, before this myth finally disappears from British politics.

Lesson #2: The meaning of a union

The second lesson of the April 2017 Gibraltar row was that whilst the EU would negotiate as a bloc, and in the interests of the bloc, it would do so with particular regard for the interests of those members most directly affected by Brexit, such as Spain, Cyprus (in relation to UK military bases) and, perhaps most of all, Ireland. This again exposed the hollowness, if not downright ignorance, of the Brexiters’ pre-referendum position, most notoriously articulated by David Davis when he asserted in May 2016 that “the first calling point of the UK’s negotiator in the time immediately after Brexit will not be Brussels, it will be Berlin, to strike the deal: absolute access for German cars and industrial goods, in exchange for a sensible deal on everything else. Similar deals would be reached with other key EU nations.”

It was an especially idiotic idea given that one of the Brexiters’ own objections to the EU was that it did not allow its members to make their own trade deals, and such nonsense was quickly exposed as such. However, it never quite died and, throughout the negotiations, the UK frequently used – whatever the Ultras may say – “hard tactics” to try to pressurise individual states or even regions into breaking the EU’s unity, as recorded by a key member of the EU’s negotiating team, Stefaan de Rynck, in his book Inside the Deal (p.61).

That these failed reflects, as the early Gibraltar row portended, the care which the EU took, and will continue to take, over protecting the specific interests of its member states, including small ones like Ireland (compare this with Davis’s airy reference to “key” EU nations). As such, it also served as a reminder of the ways that sovereign power is magnified, rather than extinguished, by EU membership. The contrast with the carelessness, bordering on disdain, with which the London government treated the interests of Scotland, Wales, Northern Ireland and, in a sense, Gibraltar itself, was a marked one. There is still no sign that Brexiters or the British government have learnt any aspect of this second lesson.

Lesson #3: The complexity of Brexit

The third of the lessons identified in my post about the 2017 Gibraltar episode was that, even leaving aside the nature of the exit process, it was an early example of the huge number of complex problems which Brexiters had poured scorn on during the referendum, but which the UK was now going to have to face up to. For although it was certainly not a major campaign issue, the possible implications of Brexit for Gibraltar had been pointed out.

In particular, in May 2016 the then Foreign Secretary Philip Hammond had said: “I genuinely believe that the threat of leaving the European Union is as big a threat to Gibraltar's future security and Gibraltar's future sovereignty as the more traditional threats that we routinely talk about.” The reaction from Brexiters was furious, with Liam Fox enraged that the possibility should even have been mentioned, saying “I think there are limits to what you can and cannot say in any campaign that goes way beyond acceptable limits” (sic). All this had been reported in the Daily Express under an inevitable headline about ‘Project Fear’ yet, just a few months on, and there was actually talk, admittedly ludicrous, of going to war to defend sovereignty over Gibraltar.

As the months and years have gone by, just about everything which the Brexiters said would be simple, quick, and easy has been shown to be complex, slow, and difficult. It’s true that there have been exceptions. Rolling over EU trade deals proved less difficult than many, including me, thought, and so has the creation of a Nuclear Cooperation Agreement with the EU, following exit from Euratom. That’s not to say that either of these things has been beneficial, but they haven’t presented the intractable problems associated with, say, the search for ‘frictionless trade’, or a solution to the Northern Ireland Trilemma.

However, the general picture is that almost everything, from fishing quotas to residency rights, has thrown up massively more complexity than the Brexiters had admitted, or even understood, before the referendum. And this remains the case. Just this week, Trade Secretary Kemi Badenoch spoke of the increased trade barriers with the EU as being something done by the EU to the UK rather than something chosen by the UK. Then came yesterday's truly ludicrous news of yet another delay in the introduction of import controls on goods coming from the EU (more on this in future posts, no doubt).

Gibraltar in limbo

As regards Gibraltar itself, after the initial flare-up in 2017 its post-Brexit future became detached from the main Brexit negotiations and effectively ‘parked’, following an agreement in November of 2018 as part of the attempt to get May’s ill-fated Withdrawal Agreement off the ground, and it was not covered by the eventual trade agreement, simply leaving the single market at the end of the transition period (it had never been part of the customs union).

Since then, the territory has been “in limbo”, operating under the terms of a series of Memoranda of Understanding created in 2018, and then a temporary agreement made in December 2020 which also set the path for negotiations for a UK-EU treaty. This has enabled Gibraltar to be a party to the Schengen agreement, allowing an open land border with Spain, and for Spain to be involved in policing its port and airport – these, along with regulatory alignment, being amongst the most disputed issues in the negotiations.

However, this does not mean that these temporary arrangements have run smoothly. For example, in April 2022 several British citizens were refused entry into Spain from Gibraltar because they did not have documentation showing onward travel or evidence of being able to financially support themselves in Spain. Brexiters expressed outrage, apparently unable to understand that they are not alone in wanting to secure borders from potentially illegal immigration.

Meanwhile, after some fractious pre-negotiation, negotiations for a formal treaty began in October 2021, since when there have been seventeen rounds of talks. As discussed in relation to other policy areas in one of my recent posts, the churn of Prime Ministers and Foreign Secretaries since then may have been one barrier to progress. It is of note that the conduct of the negotiations gave rise to one of the allegations of bullying against one of these Foreign Secretaries, Dominic Raab, which led to his subsequent resignation as Deputy Prime Minister. That allegation arose because a senior civil servant had supposedly jeopardised UK sovereignty over Gibraltar, emphasising how this concept has continued to lie at the heart of the negotiations.  

There were rumours of a deal in December 2022 and again in November 2023, so it is possible that nothing will come of the latest announcement. However, there is now a clearer sense that there has been political agreement, perhaps a result of David Cameron becoming Foreign Secretary, and that the outstanding issues are of a technical nature. It seems likely that any agreement that is reached will entail Schengen area passport checks being undertaken at Gibraltar’s port and airport by EU Frontex staff (rather than Spanish border staff), accompanied by an agreement to keep the Spanish-Gibraltar land border open without checks, and some form of joint UK-Spanish management of the airport (which has a particular sensitivity as it is also an RAF base), as well as full regulatory alignment.

These possibilities have already attracted the ire of Brexiters such as Bill Cash and Andrew Rosindell, and dark mutterings of “the EU taking Gibraltar by stealth” in the Telegraph, but how much actual opposition they would put up to an agreement is unclear. Very likely, as with the Windsor Framework, the power, and perhaps even the interest, of the ERG will be shown to be much reduced.

Crucially, as with the Northern Ireland situation, and in a different way with the import controls situation, the Brexiters have no answer to the fundamental conundrum, which is of their own making: they have created the need for a border but don't want to create a border. More generally, their naïve idea of untrammeled sovereignty has again been exposed to the realities of power and found wanting. But if they are not able to prevent a deal, nor are they able to understand why a deal has been done. The warships will not sail, and Gibraltar will become yet another grievance of Brexit betrayal.

The Brexit bill of goods

As Brexit issues go, Gibraltar has received less attention in the UK, at least, than it should have done (I include myself in that criticism) although, of course, there are good reasons why Northern Ireland, to take the most obvious, somewhat comparable, issue, has received so much more. Yet it is a revealing one, not least as a reminder of the quite casual, careless way in which the Brexiters tossed the lives of so many people into disarray, uncertainty, or even crisis.

It is also an example of the way that the entirety of the Brexit process is a still unfolding lesson in the realities of what Brexit means, as compared with what Brexiters claimed it would mean, a lesson which is only very slowly and painfully being learned as Brexit continues its relentless degradation of national life. Just in the last week there have been more instalments, from news of medicine shortages to news of restaurant staff shortages to news of garden centres having to stockpile goods, whilst the latest import controls delay continues to expose us to increased risks of disease and sub-standard products. But although the lesson is by no means over yet, there comes a moment at which it is reasonable to set a test, and that surely cannot wait for the 25, 50 or even 100 years that, since though not before the referendum, some Brexiters have suggested need to pass to assess their project. Nor can the test of success be, as most Brexiters these days seem to imagine, whether it has been less damaging than the worst predictions made for it. Brexit was, after all, sold as a positive project.

In an interview the other day, the actor Michael Douglas remarked, apparently in passing, that Britain was “sold a bill of goods” (meaning something passed off in a deception or fraud) and that “they should take the old political speeches that were made [before the referendum] … they should remind people of what they were promised”. It’s such an obvious point, and yet one rarely made in British political discourse. People should indeed be reminded of what David Davis promised in the article I referred to earlier. Or of what Daniel Hannan promised. Or of what Vote Leave’s slick, shamelessly manipulative video promised Brexit would mean for the NHS.

This isn’t about picking around in the entrails of long-past events. It is about promises made to the British people less than a decade ago, and made by people many of whom are still active in political life. Moreover, many of those people are now, like Hannan, using the same tricks to urge us towards an equally ruinous Brexit 2.0 of ECHR derogation to, as he put it this week (£), “finish the work of Brexit”, whilst others are now seeking a referendum on immigration.

We live in a time when almost every controversial decision or event is made subject to an independent inquiry. None of them relates to anything of the magnitude of Brexit, which surely warrants such an inquiry. If a Gibraltar deal is about to be done, and the long years of literal Brexit negotiation are finally ended, that would be the ideal time. It won’t happen, of course, but here’s a thought: if, as David Lammy said this week, the coming Labour government will be committed to ‘progressive realism’ in foreign policy, including relations with the EU, then what better place to start than a realistic assessment of whether Brexit has lived up to the promises made for it?



*There are two different issues nested within this. One is about the EU successfully insisting that there could be ‘no negotiation without notification’ (i.e. without triggering Article 50). The other is about whether any discussion of future trade terms could be undertaken prior to the completion of the terms of the Withdrawal Agreement. On the latter, whilst refusing the UK’s attempt to undertake the two sets of talks in parallel, the EU somewhat softened its position to the extent of agreeing that the talks within the Article 50 period could encompass two sequenced phases, the first broadly agreeing exit terms and, subject to ‘satisfactory progress’ on these, a second that would finalise the exit terms whilst also discussing preliminary future terms. Phase one was ostensibly completed with the agreement of December 2017 but, for reasons far too long to be summarised here, phase 2 discussions about future terms never really happened (for details, see just about every post on this blog for the two years after that date, or chapters 2-5 of my book Brexit Unfolded).