Friday 27 July 2018

Rules mean rules: we reject them at our peril

In a recent post, I suggested that the latest Brexit White Paper should, like an injured horse, be put out of its misery. Yesterday, Michel Barnier went some way to doing so when, in a single sentence, he rejected a central part of one of its central planks saying: “The EU cannot – and the EU will not – delegate its customs policy and rules, VAT and excise duty collections to a non-member who would not be subject to the EU’s governance structures”.

There’s no surprise in this. It was always an impossible idea that the EU could agree to it even if such a “fantastical Heath Robinson” arrangement (as Boris Johnson called it) could have been made to work in a basic, practical sense. It seems unlikely that the government thinks it could have flown, either, rather than being a staging post to something that would. But, if so, it is boxed into a corner with Brexit Ultras – not just on the backbenches but in the cabinet – saying that the White Paper is a final offer, rather than an (extremely belated) opening negotiating pitch. If that view holds sway then, indeed, we are in ‘no deal’ territory.

It seems likely that over the summer nothing much will happen in terms of the negotiations, and that the government will act as if the White Paper proposals are still afloat, even though they have been holed below the waterline. But we can expect the discussion within Britain to polarise even further as the temperature, literal and metaphorical, gets higher.

The rising temperature of Brexit debates

One indication of that came this week with a call from David Bannerman, a Conservative MEP, comparing people with “extreme EU loyalty” to jihadis who should have the Treason Act applied to them (he later deleted the tweet and replaced it with one referring to those “working undemocratically against UK through extreme EU loyalty”*). It’s easy to dismiss this as crankish raving, but we shouldn’t be too blasé. After all, it comes from an elected politician in a mainstream political party and, so far as I know, no senior member of that party has seen fit to disown it.

Perhaps more insidious, several Conservative MPs, including at least one former cabinet member, have publicly committed to funding the appeal of Darren Grimes against the decision by the Electoral Commission to fine him for breaking electoral law during the Referendum. One such, Nadine Dorries, did so in terms of the “need to expose institutional bias”. This (presumably) is a reference to repeated claims by Brexiters that the Electoral Commission is a partisan body, opposed to Brexit, and its judgments tainted as a result. As with similar claims about judges during the Gina Miller case this is very dangerous territory because it seeks to undermine rules and institutions by positioning them within a kind of cultural civil war for the political soul of the country.

Decisions have consequences

This kind of rhetoric is growing in intensity precisely because the real choices and meanings of Brexit are now becoming unavoidable, with the ‘no deal’ discussions pointing them up in their starkest form. Ian Dunt has today written an excellent detailed account of what such a scenario would look like for the availability of food. At its heart is the point – which I’ve also made on this blog from time to time – that the systems we take for granted are not there by some act of nature but by virtue of specific organizational and institutional arrangements. If we choose exit them, then we cease to benefit from them. If we exit them abruptly and with no alternatives in place (which is what ‘no deal’ means) then we suffer the consequences immediately. Yet Patrick O’Flynn, the UKIP MEP, writes of these consequences in terms of the EU trying “to starve the UK into submission”.

The core proposition of this punishment narrative is that Britain could leave the EU and yet there would be no damaging consequences of doing so. Voters were told that claims to the contrary were Project Fear and, now, that they are punishment. The same proposition has been the guiding theme of the government’s approach to Brexit, as I argued in an article in Prospect this week.

A different and much more subtle inflection of the same idea can be found in calls for the EU to be more flexible, as, for example, in an article today by the highly respected and pro-EU journalist Timothy Garton Ash, warning of the dangers of a Treaty of Versailles style humiliation. Similarly, also in today’s Guardian, Henry Newman, Director of Open Europe, argues for the EU to “see sense” about what no deal would mean for the EU, especially in terms of security and international relations.

I’m certainly not and never have been of the view that the EU can do no wrong (for that matter, I’m not sure that anyone is). It is an imperfect institution like all others. But I find it difficult to see what flexibility the EU could reasonably be expected to show in the face of the red lines put forward by the British government (nor is it very clear what this flexibility would consist of). The EU, like any multi-lateral organization, is and has to be rules-based or it will fall apart. That is so not least because, despite what some Brexiters claim, it is not and cannot act like a State.

Britain, prior to Brexit, understood that very well, and one way to understand the present situation is to imagine if it were not Britain but another country leaving. I do not think that in those circumstances many in Britain, and certainly not those of a Eurosceptic persuasion, would then be calling for special arrangements whereby that country could continue to have many membership benefits without accepting those rules it disliked. Which has been exactly the EU’s position, and signalled as such since long before the referendum.

The rejection of rules

What links the various developments discussed in this post is a lack of understanding, or simply a rejection, of a rules-based order. Whether in relation to the EU itself, or specific aspects such as the customs union, or the regulatory systems governing food standards, or the operation of judicial and quasi-judicial institutions such as the Electoral Commission, that rules-based order is treated as irrelevant or politicised as being at odds with the ‘will of the people’. This, which is one of the commonalities between Brexit and Trumpism, is one of the defining features of populism as well as one of its greatest dangers. It is also fantastical, as is clear in the call from Brexiters that the way to escape EU rules is to embrace … WTO rules.

It is strange that Britain – a country whose attachment to rules, captured in the stereotype of our propensity to form orderly queues – should be in the grip of such a mood. It’s worth recalling the lines in Robert Bolt’s play A Man for All Seasons, set in another period when such a mood held sway, and dissent was deemed treason. Will Roper, the prospective son-in-law of Sir Thomas More, declares that he would cut down every law in England to get to the Devil. More replies:

Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat. This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down – and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then?

On 6 July 1535 More was executed, having been found guilty of High Treason under the law which David Bannerman MEP, would like to see updated to cover those with “extreme EU loyalty”.

*We might wonder what this means. I’m not aware of anyone working undemocratically against Brexit. The main call from those opposed to it is for another referendum, which is plainly a democratic way of working, whatever the other arguments – made cogently by Anand Menon this week - against it might be. Yet Brexiters insist that such calls do not respect democracy which might, were Bannerman’s proposals accepted, imply that to call for a vote would be treasonous.

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