Friday 1 May 2020

The flawed logic of 'sovereign equals'

This week’s Brexit news, such as it is, continues to circle around arguments for and against extending the transition period. The government’s substantive arguments against doing so – state aid rules, budget contributions, and ability to deal with the coronavirus crisis - were rehearsed in a good article by Arj Singh in HuffPost. The article also included useful critical discussion of each of these, from Professor Anand Menon of King’s College London, and Georgina Wright and Maddy Thimont Jack, both of the Institute for Government.

However, one development of note was flagged up in Michael Gove’s comments during a Select Committee appearance. Some of these were boilerplate stuff about there being no need to extend the transition period as there is enough time for a deal to be done. In support of this contention there was, as usual, a bogus historical comparison (on this occasion, with the time taken for the 1957 Treaty of Rome to be completed, ignoring that there were many years of prequel and sequel to that) and a slightly absurd call for the EU to ‘concentrate its mind’ on Brexit in view of the coronavirus crisis.

This is all largely by-the-by and was really only a riposte to Michel Barnier’s pointed criticism of the UK at a press conference the week before which might be summarised as a call for Johnson’s government to ‘get real’. Considered as such a riposte, it could in turn be summarised as ‘shan’t’ and, indeed, all such calls have been resisted for four years now.

The UK’s new approach to the Brexit negotiations

By contrast, the interesting aspect of what Gove said lay in his repeated references (subsequently re-enforced by ‘Number 10’) to the UK as being an ‘independent’ or ‘sovereign’ state and, with that, his complaint that the EU was failing to treat the UK as such. This terminology has been emphasised for several weeks now, beginning at least with the publication of the government’s negotiating approach at the end of February. It is also frequently used by the UK’s Chief Negotiator David Frost who regularly re-iterates that the negotiations are between ‘sovereign equals’, and it was deployed forcibly this week in the UK’s insistence on certain fishing rights being “just fundamental” to what “an independent state” means.

At first sight, this might be taken as just another outing for Brexiter sloganising about ‘taking back control’, but it codes a much deeper shift in how the UK is approaching Brexit under Boris Johnson. Throughout May’s Article 50 negotiations, the frequent accusation was that Britain was trying to ‘cherry pick’ the advantages of EU membership, whilst avoiding the constraints and obligations of such membership. Both the EU and many UK commentators remarked that this failed to understand that, after Brexit, the UK would be a ‘third country’. At the same time, many Brexiters were suspicious of such an approach, believing that in practice it would keep the UK tied too closely to the EU’s orbit.

In the new approach, the government has flipped this criticism around so as constantly to emphasise that what it is seeking is a series of arrangements which are in line with precedents from third country relationships with the EU. The precedents vary, according to what aspect of the future relationship is being referred to, but in the negotiating approach document they include Canada, Japan, Australia, New Zealand, South Korea, USA, and Norway. The term ‘precedent’ or cognates of it appear 30 times in the 30-page document.

The significance of this is two-fold. On the one hand, it is a message to the EU but also to both pro- and anti-Brexit actors domestically, that the UK is neither asking for anything which is unreasonable for a non-member nor for anything which is in any way incompatible with Brexit. On the other hand, and here the notion of ‘sovereign equals’ is important, it implies that these arrangements are or should automatically be on offer to the UK since they are selected from the menu of what independent states are able to agree with the EU.

A naïve and misleading approach

In this respect, it is an approach which is at best naïve and at worst deliberately misleading. It seems to derive from transposing the rules-based nature of EU membership on to the EU’s external relationships. EU membership entails rights and obligations within a system of rules, since that is the only way of holding together a group of (yes) sovereign, independent countries. It is that which precludes cherry-picking, which would fatally undermine such a rules-based system. Once the rules are bent, they cease to be rules. Hence the impossibility of being both a beneficiary and a non-member. What the government’s new approach implies is that the same logic applies to third countries. That is, that they, too, have a certain set of rights, albeit different to those of member states. David Frost has expressed this quite unambiguously in saying that the British approach is “to claim the right that every other non-EU country in the world has”.

If that were indeed so, then, of course, there would be no reason why the UK shouldn’t have, say, a New Zealand-type veterinary agreement or a Japan-style agreement on financial services regulation, to give two examples envisaged in the UK negotiation approach document. In particular, to take the central and most contentious example, there is no reason why the UK should not have a Canada-style Free Trade Agreement without the need for additional Level Playing Field Commitments. All of these are ‘within the rules’ for third countries, have ‘precedent’ and, therefore, the UK has a ‘right’ to them by definition.

But there are no such ‘rules’ or ‘rights’, and the quasi-legal notion of ‘precedent’ is all but irrelevant in this context. To the extent that the EU is, indeed, a ‘sovereign’ it can make whatever external agreements it sees fit, with or without regard for ‘precedent’. What it will do is based upon the calculation of its own interests, refracted through the internal negotiation of the differing interests of its own member states. In particular, what is at issue is the relative negotiating strengths of the EU vis a vis the UK.

A meaningless construct

In this respect, ‘sovereign equals’ is a meaningless construct. Sovereignty applies equally to all countries, but that does not make them ‘equal’ with respect to what they can achieve in trade or other negotiations. The US is the sovereign equal’ of, say, Chad – but in any negotiation between them the US is clearly the stronger party, and it would be absurd to imagine that because the US has such and such a relationship with, say, Canada, it follows that this would be made available to Chad.

The disparity between the UK and the EU is, of course, much less than in this example. But economically, especially, the differences in size between the two is enough to make the EU stronger. Yet, on the other hand, precisely because of the UK’s economic size and proximity to the EU, it is unsurprising that the EU is not willing to offer a Canada-style trade deal without additional preconditions and safeguards.

An alternative reading of being ‘sovereign equals’, and one which is found in numerous government statements, is that it simply means that just as the EU will not accept or be bound by UK law, regulation and jurisdiction so the same thing applies to the UK as regards EU law, regulation and jurisdiction. This is important within the context of the negotiations because it codes, in particular, the idea that any role for the ECJ would be unacceptable to the UK.

But this version of sovereign equality is also naïve and misleading. The global economy relies upon trans-national regulatory systems of which those of the EU and the US are by far the most extensive and powerful. The UK is of course free to set its own standards, and to that extent is the sovereign equal of any other country. But there is no possibility of the UK being an international ‘rule maker’ and to that extent is bound to be a ‘rule taker’. The Brexiter position on this is in any case contradictory given the enthusiasm they evince for trading ‘on WTO Rules’.

The outcome of the negotiations will therefore be a matter of realpolitik, not of a quasi-theological notion of ‘sovereign equals’ nor of a fantasy that some system of rules and rights governs what kinds of deals the EU does or does not do. It is also quite irrelevant here to talk, as Brexiters often do, of what the EU ‘ought’ to do if it had regard for their (the Brexiters’) calculation of its (the EU’s) interests, or those of its member states, or of their industries (the German car maker argument). That’s a matter for the EU, just as it is the for the UK – in that sense, only, are they sovereign equals. Both can make their own decisions and, as it may be, their own mistakes.

How to make sense of all this?

At one level all this is – as so often – more to do with a domestic audience than the EU. Thus the Daily Express reported it as Gove “blasting” the EU for refusing “to accept its own logic” (i.e. a version of the ‘precedent’ argument). That is in part another example of how Brexit continues to be conducted as if it were still in campaign mode but, of course, also an indication of how, especially if no deal is done, it will be blamed on EU intransigence.

At another level, I think it reflects something which many remainers fail to understand. Committed Brexiters really do believe their own propaganda and, in particular, really do believe that ‘sovereignty’ confers unconstrained freedom. In this sense, their fantasy of what being a ‘sovereign equal’ means as a non-EU member is the mirror image of their erroneous belief that sovereignty had been lost by virtue of being an EU member. And allied to that is the persistent paranoia that, as a member, the UK was ruled by the EU and as a non-member is being punished by the EU.

But there are some more fiddly and detailed issues in play here. Firstly, during the May years, as it became progressively clearer how complex the realities of Brexit would be, Brexiters developed the notion of ‘managed no deal’. It was a non sequitur, for it entailed making deals without making a deal. But it lives on in the present negotiations as what might be called ‘managed no deal 2.0’. For whereas the EU approach is to seek a single deal, encased in a single governance architecture, the UK ‘precedent’ approach envisages a series of mini-deals, modelled on this or that precedent.

There’s some irony in this, since one could argue that the EU approach is to offer a ‘bespoke’ EU-UK relationship whereas the UK’s is to seek a number of ‘off the peg’ solutions. So the EU is proposing something which, to the cheers of Brexiters at the time, Theresa May and David Davis said was vital – this was the meaning of her ‘red, white and blue Brexit’ - whereas the UK is proposing what she, again to Brexiter cheers, dismissed as unacceptable.

Secondly, what is going on is an outgrowth of another Brexiter nostrum, namely that the EU ‘always blinks at the last moment’. This has been a claim going right back to David Davis’ tenure as Brexit Secretary, much of it based on an erroneous comparison with what often happens at EU Summits between member states and the situation of a negotiation between the EU and a departing – or, now, departed - member. But it took on a new life when Johnson supposedly re-negotiated May’s withdrawal agreement last year.

The ‘supposedly’ gives the lie to the analysis that it offers a template for the current negotiations. For it is not that the EU ‘blinked’ but, rather, that Johnson accepted something that both he and May had previously rejected as unacceptable, namely an Irish Sea border. And, in any case, what that episode reveals more than anything else is that the hasty cobbling together of an agreement to suit an ad hoc timetable created something which has huge practical problems of implementation (as Dr Katy Hayward of Queen’s University, Belfast has pointed out this week) and key aspects of which the UK does not seem to accept anyway leading to rapidly increasing tensions. So if there is a lesson for the EU in it, it is not to do a deal in a hurry.

That aside, the ‘EU will blink first’ idea is given fresh impetus by the new approach of relying on third country precedents, because the assumption is that since the EU has agreed to them for other countries then, when push comes to shove, it will do so for the UK. On this analysis the EU is simply being recalcitrant and, when stood up by ‘an equal’ will back down. Again, that’s clear in this week’s fishing row, when the UK line is that it’s going to take time for the British position to “sink in” with the EU.

One huge difficulty this creates is that it precludes agreeing to an extension by the end of June, when it needs to be decided if it’s to happen, because the assumption is that the ‘last moment’ for the ‘blink’ will not arrive until the end of December. So if the analysis is then proved to be flawed it will be too late, and the UK will have to pay the heavy price of the consequences.

Contradictions and limitations: Europol and Lugano

Finally, within the undergrowth of the detail, this week saw two stories which speak, in different ways, to the analysis offered in this post. The first shows the contradictions of the UK position. For, despite the new ‘third country precedent’ approach there are still elements of the old ‘cherry picking’ approach in relation to Britain’s reportedly “impossible demands over access to Europol databases”. Here, the UK wants to “approximate the position of a member state as closely as possible”, suggesting some continuation of the flawed idea that there is a kind of ‘alumnus’ status available to Britain as a former member.

The second story shows the limitations of the UK position. It relates to what is, no doubt, to many the obscure issue of the Lugano Convention (the obscurity is also yet another example of how the huge ramifications of Brexit were barely discussed during the Referendum campaign). This is a cross-border legal agreement whereby civil and commercial judgments made in one participating country’s courts can be enforced across all the participating countries. It sounds dull, but it’s important to business, and doesn’t present a problem for Brexiters because it doesn’t involve the ECJ.

So Britain, which hitherto participated by virtue of its EU membership (and, currently, the transition period), applied for independent membership earlier this month. The government’s argument is that this something open to countries around the world (so: the third country precedent argument). But Britain doing so requires, amongst other things, the approval of the European Council and it has been reported this week that such approval may not be “in the EU’s interest” (£). The outcome remains to be seen. But the significance of this is clear. The idea that the UK can fall back on an imaginary world of self-determining national sovereignty is entirely flawed. That sovereignty is constrained by, and contingent upon, decisions made by others.

The bigger picture

Crucially, this is not just about specific aspects of Brexit. It goes to the heart of the entire, flawed, Brexit project. Again and again that project relies upon, at best and then only questionably, Eighteenth and Nineteenth Century ideas of nationhood and international trade.

That is most evident in the way that free trade is treated mainly as being about goods tariffs and their abolition (£), which also explains the failure to understand the nature of the single market, services trade, and how removing non-tariff barriers entails ‘losing’ sovereignty through creating international regulations. But it was also evident in David Frost’s recent speech explaining the entire approach to the future terms negotiations as based on Burkean theories of sovereignty.

It is from this approach that the current rhetoric of ‘sovereign equals’ derives. It is totally inadequate for the present day and to use it as the basis for negotiations is almost to guarantee that those negotiations will fail.

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