Friday 6 March 2020

Negotiating events

With Britain having left the EU, this week saw the beginning of the negotiations about the future terms of UK-EU trade and other relationships. That anodyne sentence ought to anger leave voters as it is not what they were assured by the Vote Leave campaign which stated that “we will negotiate the terms of a new deal before we start any legal process to leave “ (p.11 of link). Given that we are constantly told that the government is enacting what people voted for it is perfectly reasonable to continue to record that what is happening is very far from that.

The talks begin in an atmosphere of deep distrust (£). Many believe that they will collapse with no deal being done, and some believe that this is actually the government’s plan. By contrast, the respected trade expert Sam Lowe of the Centre for European Reform makes the ‘relatively’ optimistic argument that a deal is still possible. But this, he says, is “largely due the UK’s lack of ambition”. In other words, a quite limited zero tariffs, zero quotas deal is conceivable although, as Lowe notes, even this will entail compromises to be made by both sides.

Here, too, we are a long way from what was promised. Not only was a deal supposed to be easy, but it was supposedly going to be a deep and special relationship, going well beyond a basic Free Trade Agreement. The flaws in that claim have been widely remarked upon, but the more fundamental – though related - issue is, indeed, that of the distrustful atmosphere, since it is this which now makes an extensive deal so unlikely and no deal at all quite possible.

The consequences of Brexiter negativity

There was no inevitability about that. I’m not by any means someone who imagines the EU to be perfect or faultless. But very little of this is down to them. The Referendum result was greeted with sadness and some bemusement, and subject to reasonable conditions as extensive a relationship as the UK wants has been on offer. The EU has been remarkably consistent about this, and has behaved very much as the UK would have wanted it to had it been another country leaving and the UK remaining a member. It has certainly been fairly rigid in its approach, but that’s an inevitable feature of being a multilateral rules-based entity. If it were not, Brexiters would be the first to denounce it for doing shabby back-room deals without regard for the consent of its members and the rules that bind them.

Rather, it has arisen because, from the beginning, Brexiters have reacted to their victory not with happiness but with anger, and this infected first Theresa May’s approach to Brexit and now Boris Johnson’s. Immediately, there was talk of not paying the divorce settlement, suspicion about the EU’s motives, disparaging comparisons with the USSR or Nazi Germany, and bellicose sabre-rattling.

Ridiculous expectations of what the UK could have as an ex-member were held even as the red lines ruling these out became harder and harder, and as it became clear these expectations would not be met the invariable reaction was to treat this as punishment. And when agreements were made, as at the end of phase 1 of the Article 50 talks, the UK immediately repudiated them as non-binding. This has developed to the current situation where radically different claims about what the Northern Ireland Protocol means threaten to derail the negotiations entirely. Here again we should recall that this only arises because of the false claim of the Leave campaign that Brexit would have no implications at all for the Irish border.

This is not ‘remainer negativity’. It is about, precisely, ‘Brexiter negativity’. Had they approached Brexit in a confident, positive, generous even joyful fashion then the outcome might have been very different. But instead the story has been one of hostility and dog-in-the-manger resentment, stoked up by a vitriolic media. Moreover, the onus was on Britain, as the initiator of the divorce, to set a magnanimous tone. Only at brief moments, such as May’s Florence speech, has there been such a tone, and that speech sounded more like a case for Britain joining the EU than for leaving. Johnson’s passive-aggressive references to ‘our European friends’ certainly lack any such magnanimity, whilst the childishly insulting antics of Farage and other Brexit Party MEPs in the European Parliament have undoubtedly done much damage to UK-EU relations. No such discourtesy has been evident from the EU.

Brexit beyond logic and reason

So we have now arrived at a point where out of sheer, dogmatic, remorseless antipathy to anything and everything remotely connected with the EU the UK is ripping up almost every form of co-operation, regardless of the costs. Examples include the Galileo Global Navigation Satellite System programme. This is a complicated story, involving two different aspects, the first being British companies’ rights to bid for certain sorts of contracts and the second being British access to its full military capabilities. In both these respects, what was offered to Britain, as a third country, was very limited. Still, negotiations were ongoing, and there was potential scope for an agreement, but in 2018 Theresa May pulled out of the talks and announced that the UK would develop its own system at massive expense, initially estimated to be £3-4 billion. This week, it emerged (£) that this system was delayed, over-budget, and mired in disputes.

Needless to say, Galileo did not even figure in the Referendum campaign, any more than did Euratom which the UK is also leaving in order to replicate its functions at national level at huge cost. Even Dominic Cummings has described that decision as “near-retarded” and, far from being the will of the people, only 10% of the public support it.

Certainly no one knew Brexit meant, or wanted it to mean, the latest government decision to pull out of the Unified Patent Court (UPC) – having ratified membership well after the Referendum, in 2018 - which is not even an EU body. This decision will have major consequences for knowledge-intensive businesses, in particular. Nor, especially now, is it likely to be a public priority to leave EWRS, the EU’s pandemic warning system, but that is what the government have just decided to do along with also deciding not to pursue participation in the European Arrest Warrant. Needless to say, again, none of this was set out even during the recent election campaign.

These last three examples all show a hardening of the UK’s position under Johnson even compared with May, and, along with other cases, they flow from two things. On the one hand, an almost pathological aversion to even the most minimal and peripheral roles for the ECJ. On the other hand, an idea that anything sought in the non-trade arena that is outside of a ‘Canada-style’ relationship will give the EU a negotiating advantage in the trade arena by conceding that the UK wants more from Brexit than such a relationship.

This assumes that the EU would drop its Level Playing Field (LPF) conditions for a trade deal since, on non-trade issues, the UK demonstrably ‘only wanted to be like Canada’. But that is a non sequitur, as the LPF demand is connected to the size and proximity of the UK economy to the EU – and hence to the trading relationship – and will exist quite independently of the non-trade considerations.

So, on either of these rationales, all that is achieved is a quite spectacular British cutting off of its nose to spite its face. And this is where, certainly, there is a distinction to be drawn between the EU and the UK in their approaches to Brexit. For the EU has been both rigid and, yes, ruthless in pursuit of its interests. There’s nothing wrong with that, and nothing wrong with the UK doing the same. But the UK is doing things which can in no conceivable sense be in its interests. That isn’t the same as saying that Brexit is not in the national interest – I think that is so, but clearly the government and a large part of the population disagree – it is saying that Brexit can be pursued without this attempt to totally eviscerate even the most limited and benign forms of mutually advantageous administrative cooperation.

Of course, some will say, that is because the Conservative Party is just acting in its own interests. But there are few votes in leaving the EWRS, for example. Of course, others will say, but it’s all about their shadowy hedge fund backers. But there is little money to be made from leaving the UPC, for example. And neither the EWRS nor the UPC will do much to stoke up the culture war, and are certainly not needed to do so.

In the absence of any discernible logic it’s difficult, therefore, to overstate the total insanity with which Britain is now approaching Brexit. It goes way beyond anything that is remotely necessary to ‘respect the 2016 vote’ and way beyond what any but a tiny handful of voters ever imagined Brexit to mean. It is certainly way beyond even the hard Brexit that Theresa May embraced for all that, as noted, some of it roots back to that time.

A question of loyalty

In these circumstances, it is hardly surprising that the conflict between the government and civil servants is intensifying, as discussed in my previous post. As if in confirmation of that analysis, almost immediately after that post came the dramatic resignation of Sir Philip Rutnam. In the post I alluded to the conflicts in the Home Office and also said that we could expect further push back from the civil service against the position in which it has been put by Brexit. These conflicts certainly shouldn’t be complacently downplayed as just the familiar fights between ministers and civil servants that have long occurred.

Whilst the issues about Priti Patel’s alleged behavior go beyond Brexit, it does lie at their heart in that the clashes with Rutnam began over the workload entailed by Brexit, and the risks entailed by seeking to deliver that work in the very short time frame the government is insisting upon in order to meet its self-imposed refusal to seek an extension to the transition period. Certainly the media and social media debate that followed Rutnam’s resignation demonstrated that it split along remainer versus leaver lines. Perhaps the most dangerous aspect of that debate was the suggestion that since Patel is pursuing ‘the will of the people’ any behavior would be justified.

It is also hard to resist the conclusion that the resignation, and its manner, were part of a much wider battle in which, in the words of Sir Mark Sedwill, Head of the Civil Service, in a statement the week before, the civil service is asserting its “enduring work to protect and promote the interests of our citizens, communities and country”. The wording is crucial here, since this work is posited as something additional to (and therefore different from) serving the government and, unlike the government, is “enduring”. That is a direct contrast with the convention articulated in the 1985 Armstrong Memorandum that “the Civil Service as such has no constitutional personality or responsibility separate from the duly constituted government of the day”.

Senior civil servants use language with great precision: Sedwill’s message was clear and intended, and it makes sense precisely in the context of a significant gap opening up between serving the government and serving the national interest. It’s a complicated distinction (for who is to say what is in the national interest, and why should civil servants have any particular role in defining it), but it does differ from simply disagreeing with policy.

Perhaps it is more akin to whistle-blowing in organizational contexts. Some may condemn particular instances of it, but most will agree that, in principle, there is a point at which individual conscience and professional values take precedence over organizational loyalties and legal undertakings. We don’t nowadays think much of the ethics of those German military officers who served the Nazi regime whilst not subscribing to it, because they treated their oath of loyalty as sacred (and, no, I’m not comparing the government to the Nazis, just making a point about the principle).

Not that the issue is necessarily, at least not yet, one of a complete divergence between politicians and civil servants. But the latter clearly have to be able to tell ministers if – as seems to have happened – the work needed for Brexit cannot be done in time. There’s no disloyalty in that, nor is there even necessarily any disagreement with Brexit. The problem arises if, as discussed in my previous post, stating such facts is taken to connote such disloyalty, and arise from a lack of true faith and belief. It is the importation of the Brexiter culture war into the corridors of power, bringing with it precisely the distrust and toxicity which has infected the negotiations with the EU, not to mention the entire country.

The power of events

So that brings us back to this first week of negotiations. As they ended, Michel Barnier spoke of the “serious divergences” between the two sides, with the expected issues being named – fishing, LPF, governance – but also security. In the past, the latter might not have figured in the list, and might have been seen as a potentially less contentious area, but the UK has decided not to open this chapter of the talks yet and the reasoning must presumably be that the government sees this as an area of leverage given Britain’s greater resources in this area, especially as regards intelligence capacity.

That has been hovering as an idea since Theresa May’s Article 50 notification letter, but then seemed to be softened in her Munich speech. Now it seems to have been weaponised again.  Even so, the overall sense of the first week’s talks was that they were less confrontational than might have been expected.

It is clearly far too early to predict how things are going to develop, but for what it is worth I am beginning to think that the government is going to become less bellicose and more flexible in its Brexit approach than has so far been the case. The reason for this is not so much Brexit itself but that, having started office in a very gung-ho manner, thinking that its parliamentary majority and disruptor ideology would enable it to sweep all before it, the experience of governing has already been chastening. The resignation of Sajid Javid, the flooding emergency, the court judgment about Heathrow expansion, the now growing row over Priti Patel, the Flybe collapse and, especially, the developing Coronavirus crisis have all played their part.

Suddenly, this feels like a beleaguered administration. The hubris I wrote about just last week is, already, looking just a little faded. In particular, Coronavirus has forced Johnson to bow to pressure to appear in public, forced ministers to appear on shows they had been boycotting, forced politicians and the public to recognize the need for experts and technocratic planning, and demonstrated the power of unexpected events to derail economic and political plans.

This analysis may be premature and flawed – over-reacting to what may be ephemeral news - but if it is right then it could lead to a limited, partial deal being struck in Brussels, under cover of the Coronavirus causing postponement of meetings (£), and this then used to justify some extension of the transition period under a different name in order to resolve outstanding issues. There are already a few speculations to that effect, as the links given show.

That’s not to say that this would be an especially desirable outcome. It might avert a new cliff edge next January, but would mean a continued slow burn of economic damage, deferred investment and so on. And that would further bolster the denialism about the adverse effects of Brexit, as these would be more gradual and more difficult to disentangle from other factors such as, indeed, the economic impact of the Coronavirus as well as all the other expected and unexpected things which will occur. Indeed, one reason to think that this scenario might have some appeal to the government is that it would be consistent with the attempt to lose all talk of Brexit and have it merge with the wider swirl of events.

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