What has been confirmed is the recently trailed shift from threatening to invoke Article 16 of the NIP to the much more confrontational threat to pass UK legislation to supposedly unilaterally and permanently override much of the Protocol. This, in itself, is an implicit admission of the failure of the Article 16 threat tactic that has dominated the UK’s approach for well over a year. In truth, it was never viable because, whatever some Brexiters persuaded themselves to believe, it couldn’t do what they thought it would. Another delusion bites the dust, though it continues to be mentioned.
On the ‘legislation’ plan, having failed to act on the rumoured intention to include it in last week’s Queen Speech, it was then set to be announced this week by Liz Truss. This duly happened, on Tuesday, marking the end of any possibility that Truss would ‘re-set’ relations with the EU. But, again contrary to some other previous rumours, the legislation was not tabled and may not be until the summer. So there’s been some slight softening of stance over just a few days. And talks will continue with the EU, although it has previously rejected the substance of Truss’s outline proposals, and the atmosphere will be even more sour as a result of this new threat.
As presaged in my last post, this is a significant escalation but not a decisive moment. Next October is now being spoken of as the deadline for a resolution, its significance being that that is when new elections would have to be held in Northern Ireland if no government has been formed there. But we have seen such deadlines come and go before.
Meanwhile, on Monday, to coincide with a visit to Belfast, Boris Johnson published an article that was more serious and somewhat more emollient than anything he has said before, and he has generally seemed to downplay the significance of the proposed legislation, for example by referring to it as being concerned only with “some relatively minor barriers to trade”. So this seems like a ‘softer’ approach than Truss’s.
The government's tactics are as unclear as ever
Thus, beyond continuing the game of Tom Tiddler’s Ground that has been dragging on for months, it remains unclear what the government’s tactics are. Is the idea of the new threat to satisfy the DUP sufficiently for them to join the power-sharing executive in Northern Ireland? If so, it seems already to have failed since their leader, Jeffrey Donaldson, has suggested that only with the passing of the legislation will that happen.
Is the idea, as discussed in my previous post, to try to garner US support by tying this new approach so closely to upholding the Good Friday (Belfast) Agreement (GFA)? Certainly Truss made this central to her announcement, although border expert Professor Katy Hayward, writing in this morning’s Irish Times, argues strongly that the government’s present approach is actually “giving succour to those who want to destroy" the GFA. Moreover, Suella Braverman, the “stooge” Attorney General, has apparently made the “primordial significance” of the GFA key to her advice that the legislation would be legal, although several leading experts say this term is legally meaningless and that there is no hierarchy of treaties whereby the GFA would 'trump' the NIP.
This marks a shift in tactics from early attempts to justify the UK position primarily in terms of the economic effects on Northern Ireland (presumably in part because Northern Ireland is actually doing better than the rest of the post-Brexit UK as a result of the NIP). It is also a shift from framing the legal justification in terms of the supposed priority of parliamentary sovereignty over international law in the way that Braverman absurdly advised over the Internal Market Bill (IMB).
Another possible reason for this focus on the GFA, apart from the US dimension, is illustrated by the revealing comment in an otherwise predictably fatuous article by David Davis this week (£) that it gives the UK “the moral high ground”, which I suppose is an implicit acknowledgment of the evident moral low ground of seeking to renege on an agreement the UK negotiated and signed only a couple of years ago. It is hardly compelling, though, since, like the government, it signally fails to answer the question of why the NIP is a threat to the GFA now, whereas at the time of signature Johnson declared the two agreements to be fully compatible. Nor does it explain why a consent mechanism was created, despite the opposition of unionists already being known, that didn’t require cross-community agreement which is now deemed inadequate because of … unionist opposition.
Is the idea to play ‘mind games’ with the EU to try to get maximum concessions, the kind of ‘madman’ negotiating approach which was attempted throughout both the trade negotiations and last year’s NIP negotiations? If so, the EU may have noticed that, ultimately, the government backed down on ‘no (trade) deal’, on the illegal IMB clauses, and on Article 16. But, in the nature of that approach, this time might be different. Or is the idea to present impossible demands to the EU knowing they won’t be met but then enabling the UK to scrap the NIP blaming EU intransigence? To put it another way, is the UK using madman tactics, or is It actually mad?
Do the oscillations in the ‘hardness’ of tone reflect differences within the government between, especially, Johnson and Truss, as some reports have it (£)? Or is it Johnson’s own habitual dithering? Or does it (also) reflect blowing in the winds of, on the one hand, diplomatic pressure from the US and feared economic pressures from the EU, and, on the other, of contradictory political pressures from different groups of Tory MPs? Certainly, as so often throughout these Brexit years, negotiations with the EU seem almost secondary to internal negotiations within the Tory Party.
Within that, what is the significance of David Frost’s now constant background chorus of bellicose, and often frankly silly, rhetoric both in the UK (£) and in the US? Of course it may well reflect his ambitions for new political office, despite the failures, abundantly obvious to all but himself, of his previous ministerial career. But is he, as a result, also now taking a similar role to that played over the years by Nigel Farage (now rather silent about Brexit though, tellingly, he and Frost are now cosying up), pressuring the government from the sidelines to stay true to ‘pure Brexit’?
The government’s strategy is as unclear as ever
Along with, and plainly related to, these tactical questions are the bigger, strategic questions of what the government actually wants. Sometimes, Johnson and other ministers have talked as if the entirety of the NIP, and certainly its core provision of an Irish Sea border, is unacceptable in principle, and many Brexiters have called for it to be entirely scrapped because they have never accepted the need for any border at all. Yet at other times they talk as if what is at stake is only operational reforms to the practical application of the agreed deal, albeit going beyond what the EU has offered so far. In Truss’s proposed changes, this question is fudged: she says she does not want to scrap the Protocol, whilst seeking to change the operations so drastically that, in effect, it would amount to doing so.
One problem with this lack of strategic clarity is that, if the real aim is to gain fresh concessions, it reduces the incentive for the EU to offer them: why do so, if it will just lead to the demand for even more, or if the UK isn’t really seeking concessions but an excuse to collapse the whole agreement? But if the real aim is to collapse the agreement, then for how long can it be credible to keep making threats without carrying them out?
Perhaps an even bigger problem is that, despite what Brexiters think, the EU really isn’t pre-occupied with Brexit in the way that, at times, it once was. So even if there is some cunning British negotiating strategy designed to wrongfoot Brussels, it’s more likely to irritate and exasperate than produce sleepless nights. There’s certainly no longer any great interest in accommodating UK domestic politics. That largely ended when the Withdrawal Agreement was signed. Ironically, having left the EU, Brexiters and the Brexit government spend far more time and energy thinking and talking about the EU than the EU spends on Brexit or Britain. That lack of interest, quite as much as border checks, is part and parcel of what it means to be ‘a third country’.
There can be no clarity because there is no honesty
These and related issues can be endlessly debated. But I think the key to making sense of all of them is to recognize that the government can’t be clear about what it is doing because it can’t be honest about how it got to where it is now, and can’t be honest about where it wants to get to in the future. As was always likely, the skein of contradictory lies told over the last six years is thickening and spreading so as to overwhelm the entire post-Brexit polity. So, like knotweed, it is now choking the very Brexit it created and, with that, British politics more generally. That Northern Ireland should be the most visible manifestation of this is not surprising because, certainly since the announcement of ‘hard Brexit’ by Theresa May in her January 2017 Lancaster House speech, it has been at the epicentre of these contradictory lies.
First and foremost are all the lies of the referendum campaign and since, lies about what Brexit would (or would not) mean for Northern Ireland but, more broadly, about how it would be possible to have hard Brexit and yet have frictionless trade, or have ‘the exact same benefits’ as the single market and customs union membership yet without belonging to either. Perhaps most fundamentally, the lie was the idea that the UK could leave the EU and yet, in some ways, still be treated as if it had not. The implication was that Brexit would be a fundamental change, and yet many things would remain exactly the same, or at least could do, if only the EU did not want to ‘punish’ Britain, or was not ‘sulking’ about Brexit, accusations that have become articles of faith to Brexiters (as much as, once, it was an article of faith that ‘we hold all the cards’).
Johnson was the front man for all this and his “cakeism” precisely encapsulated its central ‘out and yet keep the benefits’ dishonesty. But it’s important to understand that he was not the architect of the lies, nor by any means their sole spokesperson. These were the lies of Brexit itself, and they are why the entirety of Brexit, and not just Brexit in Northern Ireland, is failing.
Johnson’s serial dishonesty
That said, it would be politically astute, and not unfair, for the Labour Party in particular to denounce what has happened as Johnson’s Brexit. To do so would certainly be more realistic and reasonable than the present approach of barely talking about it all. For, indeed, much of the current situation does bear the imprint of Johnson’s trademark dishonesty. For it partly arises from his invariable attempts to avoid hard realities and difficult decisions by lying, which have now caught up with him, badly.
Thus the reason he can’t be clear if the strategic aim is to scrap the NIP as unacceptable in principle is because he lied to the electorate in 2019 when he told them he had negotiated a great oven-ready deal. As a result, this week, under robust questioning, he had to say that he had signed the deal but had not anticipated that the EU would implement it in the way it did. However, because he can’t be clear if his aim is to scrap the NIP, he is unable to satisfy the DUP (and other unionists parties) or the ERG because he lied to them in promising that he would do so and, at least as regards the ERG, secured their support for his deal on that basis. For them, in principle and not just in practice the NIP is unacceptable. So anything the EU might conceivably agree to will not satisfy the ERG, if only because they have become so extreme that the very fact of the EU agreeing it would be enough to damn it in their eyes. As Rafael Behr put it in a superb article this week, “there is no concession big enough, no deal good enough” for them.
Yet if Johnson could give these hardliners what they want, and somehow bamboozle voters into forgetting his electoral promises about his 2019 deal, he would face opposition from what’s left of the centrist or traditional right amongst Tory MPs. It’s clear that Theresa May – who no doubt also reflects on how Johnson’s disloyalty and dishonesty undermined her – and some other Tory MPs will oppose a move to break international law, as will many Tory Peers, just as they did the illegal clauses of the IMB. Some, it seems, may tolerate the threat (but not the passing) of legislation as a ‘negotiating ploy’ with the EU to obtain further flexibilities within the NIP, but that just brings back the same questions: is it such a ploy, or is there a real intention to unilaterally disapply the NIP? Johnson can’t tell them the truth of that, either.
The realities of power
Beyond these domestic considerations, if Johnson does satisfy the hardliners then he faces the formidable problem of EU economic power and US power full stop. Neither the old Brexit lie that ‘they need us more than we need them’, nor the wider Brexit fantasy of untrammelled national sovereignty, survive contact with the realities of those powers. As I said in my previous post, a full-on trade war is not in immediate prospect, not least as the whole process of passing, let alone using, legislation to disapply the NIP will take many months.
But there will be at least some EU retaliations if the hardline path continues, and ultimately it will become impossible to avoid the issues which in essence go right back to 2016-17 and the arguments about ‘sequencing’: the prior condition for a trade agreement with the EU was and is the Withdrawal Agreement, with its three planks of the financial settlement, citizens’ rights, and Northern Ireland. Hardline Brexiters conned themselves that there was no need to accept that, and still blame May for doing so. But the reality is that she did, and she did so because in reality she had to.
Thus, in the very final analysis, if the UK completely reneges on the NIP then the EU will, justifiably, regard the trade agreement as void, as already more than hinted at by Maros Sefcovic. Because all the Brexit lies of 2016 are still lies now. If anything, ‘German car makers’ are even less likely to care than they did in 2016, and the UK is even less well-placed to surviving ‘on WTO terms’ than it was when ‘no deal Brexit’ was in prospect. But, again, Johnson and his fellow Brexiters are not able to admit those truths, either to themselves or the electorate.
So although this will all drag on for a long time yet, what is happening is that Johnson’s reported psychological desire to be liked by everyone, his political modus operandi of telling different lies to please different audiences, his predilection to defer making decisions, and his basic ‘cakeist’ refusal to accept that decisions really need to be made are all, finally, catching up with him. You can’t fool all of the people all of the time. Now, no one believes him, and for this lack of trust, at least, Labour do seem willing to criticize Johnson’s Brexit policy. However, to re-iterate, Johnson’s dishonesty and untrustworthiness, whilst important, have exacerbated rather than created the dishonesty inherent in Brexit.
The most fundamental problem: Brexit itself
One fundamental part of that dishonesty is the avoidance of the paradoxical question: how can you have a border without having a border? That question is central to the running sore of the NIP, but is also implicated in the knots the government is tied in over EU-GB import controls over conformity assessment marking, and over regulatory duplication/ divergence (£)*. Of course one might say that resolving irreconcilable, or even just bitterly contested, issues is the stuff of politics. The peace process and GFA actually provides a good example. However, the politics of Brexit never even attempted the kind of process in which irreconcilabilities and bitter oppositions could be fudged into some kind of workable, durable consensus.
That would have entailed acknowledging the closeness of the vote, the variety of views amongst Brexiters about how it should be done, and the fact that two out of the four nations had voted to remain, as well as the implications for the GFA. This may seem like pointless jobbing back, but it’s crucial to understand that it lies at the heart of the rolling political crisis we have been in since 2016. And the reason is precisely because the realities and the various trade-offs were never honestly admitted, and, worse, that even to try to do so was dishonestly dismissed as undemocratic. That honesty still eludes the British polity, whilst the dishonesty still haunts it.
It has recently become fashionable to say that May’s deal did, if belatedly, face up to the realities and trade-offs but this isn’t really true, or at best it’s only partially true. It is the case that her backstop did so, but the deal was still dishonest because it pretended that this backstop might never need to be used if the subsequent trade agreement was sufficiently deep, or if ‘alternative arrangements’ that would enable a fully open border were to be developed. However, since leaving both the single market and customs union were already red lines, there was no prospect at all of the future trade agreement avoiding the backstop whilst – as realists always said, and has been seen subsequently to be true – there are no ‘alternative arrangements’ sufficient to have replaced the backstop.
If May’s deal is considered honest, it is only by comparison with the infinitely more dishonest deal that Johnson did. But both were dishonest to a degree. May’s by agreeing to what was ostensibly a temporary ‘backstop’ but was actually a permanent ‘frontstop’; Johnson’s by agreeing to what was actually a permanent ‘frontstop’ whilst intending to treat it as a temporary bridge to a much more minimal, or non-existent, border.
The reality is that the only way Brexit could fully be squared with the Northern Ireland situation (and also the only way it could be done without huge economic costs) was through single market membership (perhaps via EFTA) along with a UK-EU customs treaty. Alternatively, within hard Brexit, a deeper trade agreement would – and still could – have allowed a thinner Irish Sea border (and a thinner GB-EU border generally), as would an agreement on dynamic alignment of Sanitary and Phyto-sanitary regulations. Instead of accepting these realities, Brexiters have spent six years lying that there can be a border without having a border and, unsurprisingly, failing to achieve that outcome. In the latest developments, the government is again trying to enact that lie, and it is still failing. And it will inevitably go on failing until reality is accepted (or, perhaps, until Northern Ireland leaves the UK).
The swirl of the current, sometimes confusing, events only postpones facing up to reality, and leaves the country in the limbo which, in one form or another, we have been in since 2016. And it is not cost-free. The general economic damage of hard Brexit is now self-evident except to those who will always deny it. This latest NIP row is also economically damaging, especially to investment (a country on course to a possible trade war with its biggest trade partner isn’t very attractive), as well as being damaging to the fabric of Northern Irish society. It is also damaging to the UK’s international reputation even to be making, yet again, these threats to international law and it is obviously damaging to the UK’s strategic interests in strong, harmonious relationships with the EU and US, especially given the Ukraine war.
But our politics is stuck. It can neither admit reality but nor can it entirely deny it. The consequences of Brexit, including for Northern Ireland, are undeniable. Yet their causes, namely the lies inherent in Brexit, are barely discussable, at least in England. The Tories are too invested in Brexit to be honest about it, and Labour are too scared by Brexit to be vocal about it. So we stagger on, choked by the same old lies, and daily adding new ones, a spreading knotweed first suffocating all other plants in the garden and then undermining the very foundations of the country that used to be our home.
*These are all ultimately border questions because hard Brexit has created both a regulatory and a customs border with the EU, so even if not necessarily about what happens ‘at the border’ they all relate to the territory over or within which something (e.g. regulation, conformity assessment, data sharing, tariffs, origin of goods components, recognition of qualifications, validity of passports) applies or happens.
Due to other commitments, I don’t expect to have time to post again until Friday 10 June.