Friday, 25 September 2020
The official negotiations resume next week, whilst the ongoing unofficial talks are reported to be progressing “a bit better than expected” according to an EU official. That perhaps means little given how low expectations must have been after the fury in Brussels caused by last week’s events. One cause of that fury – the wholly spurious claim of an EU threat to blockade Northern Ireland’s food supplies, as discussed in my previous post – has been quietly dropped by most politicians for the nonsense it is, although even that was portrayed in the Brexiter press as ‘Barnier caving in’. The damage, of course, is already done.
The IMB fallout
The bigger cause of that fury remains in play, with the passage through Parliament of the Internal Market Bill (IMB), the measures of which include, on the government’s own admission, a knowing breach of international law. However, the rumours I mentioned in my previous post to the effect that the government would seek to slow down the passage of the legislation so as to avoid a confrontation with the EU until after no deal seems inevitable (if that is what happens) seem to be true (£). And if there is a deal the offending clauses may be pulled. Meanwhile, whilst continuing to consider the possibility of taking legal action (£) the EU is holding off doing so for now. The sense is that, for the time being, both sides want to pull back from last week’s row and, as Peter Foster of the FT puts it (£), “a grudging truce has settled back” over the talks.
Nevertheless, the reverberations of Brandon Lewis’s incendiary statement about breaking international law, which is still being defended by the Attorney General, continue to be felt. Some MPs have tried to downplay the significance of what Lewis said but Theresa May, in particular, launched a blistering attack on it during the committee stage this week. For reasons I’ve given elsewhere I do not buy the line that May’s deal was one that should have been supported, and personally I doubt that history will treat her kindly. Much of the current Brexit mess can be laid at her – and her advisers’ - door for the early decisions she made, and for those she did not. Even so, she has recognizable political principles which is a very marked contrast with the corrupt, incompetent and anarchic mess of the current administration.
One indicator of how that administration operates came with the report (£) that Brandon Lewis’s statement was effectively dictated to him by a Downing Street advisor “who gave [him] the words to say”. The advisor, Oliver Lewis (no relation, I assume), is one of several central figures from the Vote Leave campaign – he was its Research Director – who, led by Dominic Cummings, are now installed as special advisers and seem to have been allowed by Johnson to become the de facto government. Many of them are very young, have little or no experience of government and, it’s perhaps fair to say, a greater degree of confidence in their own abilities than a more objective analysis would warrant.
The report stresses that Boris Johnson was barely involved, but perhaps even more shocking is the idea that a member of the Cabinet should, apparently, be taking orders of this sort from an advisor. But it is a measure of the extent to which this under-achieving but over-empowered cadre are able to wreak havoc, whether through abrasive arrogance or plain incompetence. For Brandon Lewis’s words, spoken at the dispatch box of the House of Commons, will leave a long and damaging mark, regardless of the fate of IMB.
Are you ready? Er, no
Oliver Lewis is Johnson’s ‘no deal’ adviser, and is reported to have repeatedly blocked progress in the negotiations with the EU. Whether or not he continues to do so, this week saw the passing of the notable milestone of it being only 100 days until the transition period ends – there are far fewer working days, of course, and fewer still until a deal, if there is to be a deal, has to be finalized for ratification. A new government communication drive marked this moment by asking “are you ready?”.
The answer from numerous business sectors is a resounding no, almost as much so if there is a deal as if there isn’t. The issue here is partly that businesses are overwhelmed by dealing with coronavirus, but the truly shocking thing is the lack of clarity over what they have to prepare for. This was re-affirmed by reports of a meeting at the end of last week between the government and the road haulage industry, which pronounced it “a washout” as the government was unable to provide the details needed of how border systems will operate. As regards business more generally, the British Chambers of Commerce this week published a list showing that no less than 26 out of 35 key questions about a range of post-transition issues remain unanswered.
Road haulage is a crucial industry, so it is a very serious matter that is not likely to be prepared even if there is a deal. This week a leaked letter from Michael Gove suggested that a staggering 70% of EU-bound trucks might not be ready for the new border controls, leading to thousands of lorries facing two-day waits at Dover (in passing, note that almost all the focus seems to be on Dover: much less is said of the significant problems other ports will face).
Subsequently, speaking in parliament, Gove revealed that only a quarter of businesses believe that they are fully ready for the end of the transition period (and that doesn’t necessarily mean they are, by the way), whilst an astonishing 43% believe that the period will be extended. Unless the data were collected before the end of June that is, effectively, an impossibility and perhaps reflects a complacency born of the repeated Article 50 extensions.
But his most remarkable, almost surreal, statement was that, in order to reduce congestion at the ‘short Channel’ ports, there will be a de facto border for trucks entering Kent, which will need special ‘Kent Access Permits’ to be enforced by the police. Who knew that ‘taking control of our borders’ was going to lead not just to erecting a new one in the Irish Sea, but also one around Nigel Farage’s home county?
Separately, it has recently been reported that the development of the new IT systems that will be needed for the UK-EU border is in chaos, and a study published this week by the LSE shows the extent of the disruption to supply chains, especially in the food and drinks industry, that will occur at the end of the transition, again especially if there is no trade deal in place. And a new British Chambers of Commerce survey finds that 52% of UK firms trading internationally have not yet considered the effects of Brexit. But some industries, such as banking, are continuing to shift jobs and operations from the UK to the EU without waiting to see if a deal is done or not.
Whereas the damaging effects of the new border controls will be immediately obvious – queues, supply disruptions and price rises – those of things like banking relocations and their associated impact on tax revenues will be less visible, but no less real.
Incompetence piled on dishonesty …
Since most of the new customs requirements will exist regardless of whether there is a trade deal, the government has been woefully neglectful in leaving the preparations so late. This can be chalked up to general incompetence but there is also a specifically Brexity twist to it. For years talking about the need for such preparations was either dismissed as more Project Fear or made more difficult to admit or be taken seriously because of the ingrained power of the Project Fear narrative. Relatedly, even now there are still Brexiters, perhaps including some in government, who genuinely believe that there is some form of trade deal which avoids the need for borders, as if it were possible to have “the exact same benefits” as single market and customs union membership.
After all, it was not until February 2020 that the Border Delivery Group was established (as an aside, later, its leadership appeared to be a casualty of the witch hunt for supposedly ‘remainer’ civil servants), and although that was not the beginning of the government’s border preparation work it was the first point at which it was officially acknowledged that ‘frictionless’ trade post-Brexit was impossible.
It is worth pausing to reflect on the almost unbelievable dishonesty of this. Even soft ‘Norway style’ Brexit would have had some implications for border friction, but from the moment in January 2017 when hard Brexit became confirmed as the official position any possibility of anything like ‘frictionless’ trade disappeared. No free trade agreement could prevent that. Many experts on trade and customs, many business groups, and many commentators including relative minnows like me were screaming this. Yet it was three whole years before the government officially accepted that this was so, and even then it was not until July 2020 that it published its ‘Border Operating Model’, less than six months before it needs to come into force.
We already know that one of the government’s responses to the border chaos which on Gove’s admission now seems inevitable will be to blame businesses for lack of preparations, which is outrageous considering that the government still can’t give precise details of what they need to do. But we also glimpsed another of the ways the government will respond because it was pre-figured by DEFRA Secretary George Eustice in Select Committee evidence this week: blaming it on the “failure of the EU to plan”. It’s a charge as predictable as it is ludicrous (see the various reports in the Twitter thread link).
Such responses are at one level just boilerplate political blame deflection but, more profoundly, exemplifies the refusal of Brexiters like Eustice ever to take responsibility for the consequences of their actions. For that reason alone, it’s important to keep recording and reminding people of the promises that were made for, and the lies told about, Brexit.
The consequences of no deal would of course be that much greater – as set out in an excellent, comprehensive report this week from the UK in a Changing Europe thinktank, covering not just trade but implications for transport, data, citizens, Northern Ireland, and security amongst other things. One issue not mentioned, but in the news again this week (£), is the ongoing saga of Galileo, the EU’s GPS satellite navigation system, with the announcement that the UK has abandoned attempts to build its own alternative system and the suggestion at least that the UK might try to rejoin Galileo.
This is a convoluted story, going back to 2018 when Theresa May pulled out of talks with the EU because of its insistence that the UK could have only limited, third country access to the system and announced that the UK would build its own version (although some experts thought that a compromise deal was possible) at an estimated cost of £5 billion.
That idea was enthusiastically taken up by Johnson (and reportedly driven by, again, Cummings against, or without, expert advice) who decided to buy a bankrupt satellite firm, OneWeb, to deliver it. But in June this year substantial problems emerged (the whole sorry story to that date is well told by Alex Andreou in Byline Times) and the idea has now been dropped. It is unclear at this point what will happen, but the impacts for businesses and for defence are massive. Again, there is less than 100 days to sort this out, but that timescale is a luxury compared with that faced by some UK citizens living in the EU who are customers of those banks which this week announced their accounts would be closed – in some cases before the end of the year.
Piled on even more incompetence
It is becoming clearer by the day, especially in the light of the predictable resurgence of coronavirus, that Johnson’s refusal to extend the Transition Period when he had the chance was a major and possibly catastrophic error of judgment. Far from putting pressure on the EU to ‘blink at the last minute’, it has left Britain woefully unready to cope even if there is a deal. As with the inevitability of an end to frictionless trade, the government was warned over and over again by business bodies and others that this would be the case but chose to ignore them.
Whilst far smaller in magnitude, I think it was also an error of judgment for Keir Starmer not to have at least placed on the record at the time that this was a huge mistake. Even now, in his first conference speech as leader, he said very little about Brexit and did not mention the failure to extend transition at all. I understand perfectly that he needs to avoid being depicted as a ‘remainer’, as Johnson wishes to do. But in taking the line that it is for Johnson to deliver the deal he promised, there is room to make reference to his unilateral decision to compress the time available to reach such a deal, if only as a marker for the future. It would sit well within his more general positioning of Johnson as operationally incompetent.
That critique now has real purchase, to the extent of becoming the dominant narrative, because of the way it is being taken up by so many Conservatives and former allies and supporters of the Prime Minister. Just in the last week or so it seems as if a switch has been flicked in this respect, in a way that is remarkable considering he won a majority of eighty less than a year ago. Coronavirus is of course the main driver of that, but I think that the reverberations of the IMB and the ‘breaking international law’ debacle has played its own, not insignificant, role.
On the one hand, it has created a breach between Johnson and some of the hard core Brexiters like Michael Howard. On the other, it has opened up the entire question of competence in a new way for, as Theresa May pointedly asked, “if the consequences of the Withdrawal Agreement were so bad, why did the government sign it”? This in turn links back not just to Johnson but to the arrogance and hubris of his Downing Street operation, for increasingly there are reports (£) of the resentment that experienced MPs and ministers (and, I would assume, senior civil servants) feel about the transparent contempt with which they are treated by the Vote Leave wunderkinds. Bad enough to be subjected to that indignity by those who are competent; intolerable when it comes from those who are serial bunglers.
So, deal or no deal?
All that may well turn out to be bad news for Johnson’s premiership, but it’s not at all clear what it means for the prospects of a trade deal with the EU. That can be argued in two diametrically opposite ways. One is that, stung by the criticism of his failings, making a deal becomes Johnson’s priority so that at least he can claim to have ‘delivered Brexit’, his central policy, in defiance of the ‘doomsters and gloomsters’. The other is that he pushes the button on his no deal threat in order to gain the adulation of the Brexit Ultras and stoke up the populist culture war he thrives on, and once again ignores all of the warnings of just what a disaster that would cause.
Both have very clear risks. Even the thinnest of deals will enrage the Ultras, whilst not avoiding a level of disruption that compounds the narrative of his incompetence. A thicker deal might be a little less disruptive, but enrage them even more. But no deal would be a gift to Labour and, whilst it might appeal to his core vote, the disruption, would, especially on top of the coronavirus suffering, be deeply unpopular. In particular, there is strong polling evidence of how unpopular no deal would be in the ‘Red Wall’ seats.
I’m assuming, of course, that Johnson’s calculation will be based solely upon his own self-interest and advantage, but that’s not an audaciously unrealistic assumption. Where it will lead him, I have no idea and I’ve seen nothing in any of the UK or EU commentary that suggests that anyone else has either. There is certainly no consensus view.
A straw in the wind may be the fairly upbeat report from James Forsyth in The Times this morning (£), because recently his speculations have had an uncanny knack of proving right, suggesting that he has well-informed sources. But it is perfectly possible – even likely - that Johnson himself doesn’t yet know what he intends. In any case, it should never be forgotten that, as Neale Richmond, the Irish politician who has played a leading role in shaping his country’s response to Brexit, pointedly remarked this week, the negotiations are not an internal Westminster debate, despite what the reporting of some parts of the UK media might suggest.
What is clear, for reasons I’ve argued before, and as trade expert David Henig has argued cogently this week, is that from a UK ‘national interest’ perspective a deal is important. As he says, it’s not that a deal will avoid all the disruption – there will still be plenty of that – but that it would at least begin to re-normalise UK-EU relations. I believe this would also be generally welcomed by the EU.
This is really the next big challenge for the UK, and one which erstwhile remainers can and should try to influence. Sir Simon Fraser, former Permanent Secretary at the Foreign Office, has recently set out the many challenges for post-Brexit foreign policy. They are considerable, because of the strategic incoherence of Brexit. But a key part of meeting them has to be to move UK-EU relations away from the entirely antagonistic framing that Brexiters give them, even after having left. That will be hard enough, but without a deal – even a very limited one – to build on it will be made impossible for years to come.
Clearly that hope is precisely why the scorched earth Brexiters want there to be no deal. For the rest of us it is important they don’t get their way. They have had their Brexit – and what a colossal mess they are making of it – but that does not give them licence to permanently poison our relationship with our closest friends.
Friday, 18 September 2020
This was a dishonest linkage to make, because there is nothing in the IMB which would prevent this mythical ‘blockade’ (though there are rumours that the forthcoming Finance Bill will do so). The two areas in which the Bill proposes powers to defy international law are – as detailed in the previous post – goods flows from NI to GB and the state aid rules in the NI Protocol (NIP). This point was made in a very effective parliamentary performance from Ed Miliband during the IMB second reading debate this week, in which he challenged Boris Johnson to explain his claim – which, unsurprisingly, as it would have been impossible, the Prime Minister refused to do.
The myth of the ‘blockade’ threat
As so often in the Brexit saga, disentangling the different strands of what is being said and why is complex. The first time a linkage between the IMB and the ‘blockade’ threat was suggested seems to have been in a report in The Sun on Tuesday of last week, where it was said that Michel Barnier had made “veiled threats” about GB to NI food flows during the trade negotiations and that it was these which had provoked the government to its move against the NIP (quite how the timings of this would have worked is unclear, by the way).
The story was given legs by a reference in Barnier’s statement at the end of last week’s talks when he said that “more clarity is needed [about GB’s proposed future sanitary and phytosanitary regime] for the EU to do the assessment for the third-country listing of the UK”. Such listing will be needed for GB agricultural produce to enter NI at the end of the transition. The UK position – as articulated by David Frost - is that this is a non-issue as GB will continue to follow EU standards, and if it proposes to change these will give the EU and the WTO plenty of notice.
Whether this issue is being used as negotiating leverage in the trade talks or not I don’t know. But it certainly doesn’t amount to the threat of a ‘blockade’ with its connotations of naval interdiction. Rather, it is a reminder of the procedural, rules-based nature of the EU as an institution and, for that matter, of international trade. It is not enough for the UK just to say it will follow the EU’s Sanitary and Phytosanitary (SPS) standards and, as Boris Johnson asserted at this week’s liaison committee, that the EU should automatically list the UK with its failure to do so meaning it is not acting in good faith. Rather, like any third country, which is what the UK has chosen to be, it needs to submit the relevant documentation for assessment.
If it is compliant, then the EU would have no grounds to refuse third country listing, and there is no suggestion that it would do so. Even if it did, the UK’s correct response would be to seek redress through the WA dispute system (and, perhaps - I am not sure - through the WTO) and in the meantime to make use of the existing provision within the NIP whereby “serious economic … difficulties” can be addressed by unilateral action, thus avoiding any ‘blockade’.
In short, there’s no reason to think that the EU is minded to punish the UK in this way, even if it was it couldn’t, even if it could the UK has no need to break international law to respond to it, and even if it did need to the IMB doesn’t provide the means.
My guess is that the UK has not wanted to submit its SPS plans because of the likely contradictions between following EU SPS rules and making trade deals with other countries, especially the US (although it is reported that the government now says it will do so by the end of October). For the EU’s part, there is presumably a reluctance just to take it on trust that the UK will comply and will give adequate notice of any changes. Similarly, it is reluctant to take on trust that the UK’s post-Brexit State Aid regime will be robust and wants to see the precise detail before agreeing a trade deal.
Such a lack of trust is the inevitable consequence of the bellicose, negative and sometimes duplicitous way that the UK has approached the Brexit negotiations over the last four years. Doing so has consequences, and those consequences have caught up with Britain. They can only be compounded by the current threat to break international law, so if that threat was indeed meant as a counter to Barnier’s position about third country listing then it is counter-productive anyway.
The wider attack line
However, the initial reporting was not the same as what came to be said, in that it only suggested the IMB clauses were being used to ‘talk tough’ in reply to the EU’s ‘threats’. It was not until a few days later that it began to be falsely claimed that the Bill was actually a way of neutering those threats.
The obvious reason is that the ‘blockade’ line offers, to Brexit supporters in the population and the media, something that sounds sufficiently serious to justify the breaking of international law. Perhaps it was developed in part because of the backlash against that plan. However, it is only one strand within a wider and much more dangerous narrative that the Brexiters are developing. For the ‘blockade’ allegation is part of a thoroughgoing attempt to claim that the EU are not negotiating in ‘good faith’. As noted above, the Prime Minister himself explicitly linked third country SPS listing with good faith this week. But the wider attack is that not just for this reason but more generally it is the EU and not the UK which is in breach of the Withdrawal Agreement (WA) and, therefore, of international law.
It takes quite some brass neck – actually, it takes a sociopathic lack of self-awareness and pathological dishonesty - to make such a claim, but none of these qualities are alien to the Brexit Ultras. As usual (cf. GATT Article XXIV) they seize like barrack-room lawyers everywhere on some half-understood (if that) legal text to give themselves a veneer of authority with which to impress the gullible. Currently, it is Article 184 of the WA (see p.287 of link) according to a semi-literate briefing produced by the ERG (described by law Professor Steve Peers as “perhaps the worst legal analysis I have ever seen, and I am including students who leave their exam booklet blank”).
This article requires both sides to negotiate in good faith and to use their best endeavours to secure agreements on the future relationship. Risibly, the Brexiters interpret this to mean that if the EU doesn’t give the UK a deal that it wants then that violates the article and means the EU is not acting in good faith. They also conveniently ignore that Article 184 refers to the agreements to be sought as those referred to in the Political Declaration – the very document which, with its references to level playing field conditions, they and the Brexit government have disowned. Even in its own terms it’s nonsense since if, as claimed, the EU is in breach of the WA then, as with the ‘blockade’ non-issue, the remedy is to use the dispute resolution procedure within the WA rather than unilaterally to break its terms.
Never mind. Like so many other bogus Brexiter claims this one – along with other equally footling ideas such as that the NI Protocol was only designed to be temporary – are now being pumped out by any and every Brexiter MP and their social media foot soldiers. So too is the Brexiters’ idea that since the Miller case (which forced the parliamentary vote on triggering Article 50) confirmed the primacy of parliamentary sovereignty over the Executive then ‘therefore’ this means parliament doesn’t have to obey international law. It’s hard to be too scathing of the woeful intellectual inadequacy and dishonesty of such gibberish.
The motivation here is obvious. Even in these post-truth times it strains public credulity that a government that signed a deal six months ago can now claim it is deeply flawed. Admittedly Bernard Jenkin now openly says that “the UK made a mistake in signing the WA” – something he and the rest of the ERG voted to do - but if that becomes the Brexiter message then it suggests that the entire basis on which the Tories campaigned and won the General Election was also a mistake. It might even invite the heretical thought that if MPs can change their minds about what they voted for then so too could the electorate that voted for Brexit.
So, instead, the blame is being ascribed to the EU for bad faith and for making ‘extreme’ interpretations of the WA. This, rather than Brexiter delusion or duplicity, is then used to justify reneging on parts of it or in due course – as I have been suggesting for some time is the Ultras’ hope – on its entirety.
The IMB at home and abroad
For the time being that only extends to the provisions of the IMB, assuming it passes. This is now likely because it seems the government has conceded to its ‘rebels’ that the provisions which would break international law can only be activated with a further parliamentary vote (and with some other new caveats). It is only a fig leaf, with little substantive meaning, although it does show that there are still lines – even if only shakily drawn in the sand – that Johnson isn’t quite able to cross.
But as so often in the Brexit process – the Chequers Proposal and the ‘Malthouse Compromise’ come to mind – attempts to broker domestic agreement, even if successful, myopically ignore international consequences. In particular, the existence of this legislation even in very slightly softened form is anathema to the EU.
There seems to be some dispute as to whether simply passing (or even just proposing) such a law would, in itself, be grounds for the EU to take legal action, or whether that would require the powers granted to be exercised. It is also a political question as to whether the EU would do so even if legally able, to which the answer seems to be ‘not yet’. Either way, assuming the relevant clauses pass in any form the damage will have been done to the last residue of the EU’s trust. The EU won’t walk away from the trade talks, and a deal is still possible, but the inviolability of the WA as a condition for such a deal has been forcibly reaffirmed. And it will taint the UK’s international reputation as Ursula von der Leyen has warned (£), with potential effects going far beyond Brexit.
Already this week we have seen signs of that, with robust statements from Joe Biden and other US politicians re-confirming that a UK-US trade deal is unthinkable if the Good Friday Agreement is compromised. Breaching the Northern Ireland Protocol (NIP) in the ways proposed by the IMB doesn’t in itself necessarily do that, but it could be a move in that direction.
Indeed Dominic Raab’s visit to the US, which occasioned these statements, showed how this could be. For in defending the IMB he made the extraordinary comment that it was only necessary because the EU was trying to erect a regulatory border down the Irish Sea. Yet that it is precisely what the UK has agreed to. So if Raab actually understood and meant what he said – an open question, since he appears to be totally out of his depth - then the entire basis of the provisions in the NIP which prevent a land border with Ireland, and therefore the GFA, would be compromised.
Brexiter MPs reacted with fury to Biden’s intervention but, like it or not, as a consequence of Brexit Britain has, as it were, blockaded itself into isolation, and can be booted around by the big players whether that be the US, EU or China. Arch-Brexiter John Redwood may blithely opine that “trade deals are nice to have but not essential … Getting back full control of our money, our laws and our borders is essential”, but that always hollow slogan now sounds increasingly like the last desperate cry of a country sinking into oblivion. Not waving, but drowning.
Domestically, the IMB may initially have looked smart. The Tories could depict Labour’s opposition to the Bill as “siding with the EU”, and many voters will surely take the view that breaking international law isn’t ‘really’ breaking the law. And as one said on a vox pop on Radio 4 this week ‘it’s not as if we’ll be torturing people’. Plus for many Tory core voters almost anything that seems to further the Brexit cause, or even just sticks fingers up at the EU, or even just enrages the liberal metropolitan elite, will be greeted with rapture.
Yet those voters – and more importantly the Brexit Ultras – may be infuriated at having been marched up the hill of flouting the WA only to be marched half-way back down again when Johnson encountered some opposition. There are also rumours that the legislation may now be delayed, despite the initial claim that it was so urgent it had to be rammed through quickly, which would be a further climbdown.
So the IMB is beginning to look like yet another Johnson fiasco. He has raised the Ultras’ hopes of ditching the WA – or at least of ‘sticking one’ on the EU - then backtracked. Yet the damage to relations with the EU and to the UK’s wider reputation is done anyway, and won’t be forgotten for a very long time. In this respect, too, he seems to have blockaded himself into a corner.
The underlying problem: trying to turn lies into policy
Aside from their immediate motivations and effects, these latest events re-emphasise something more fundamental about Brexit. It has always been based upon a denial of, or at best a naivety about, reality. In particular, as Tom McTague wrote in The Atlantic this week, a denial of the reality of the meaning of Brexit for Northern Ireland (or of Northern Ireland for Brexit). Consider the absurd dismissal of this reality by Boris Johnson and others in 2016, insisting that Brexit would have no impact on the Irish border because of – again, invoking a bit of legal-sounding mumbo-jumbo – the longstanding existence of a Common Travel Area. But there has to be a border somewhere. Having for reasons of expedience accepted that it would be across the Irish Sea, Johnson is now trying yet again to deny the need for a border.
Brexit wasn’t just a denial of the reality of Northern Ireland but also of the nature of the single market, the nature of the EU, and much else besides. Looking at the Vote Leave campaign documents now, there is scarcely a sentence in them that anyone could now seriously defend. The line in the final page summary about “having better relations with our European friends” has a particularly hollow ring to it this week, whilst the core economic claim that “there is a free trade zone from Iceland to Turkey to the Russian border and we will be part of it”, always a lie, now looks like the ravings of a lunatic.
As I wrote in March 2019, you can lie but you can’t turn lies into policy. The attempt to do so is the reason the UK is being driven to more and more extreme positions. It is that which has given the events of the last few years their strangely repetitive quality as, like moths dashing themselves against a window pane, the Brexiters keep trying to buck reality. A small example of that came this week when Geoffrey Cox refused to support the IMB on the basis that it broke international law by unilaterally over-riding the WA. Cox – himself a Brexiter, demonstrating that they are not all Ultras – had also as the then Attorney-General refused in the face great pressure to advise that the government could legally unilaterally exit what was then the backstop in May’s WA. That was eighteen months ago, but the Ultras are still convinced there is a way around having to honour what you agree to.
What we see in the government’s present contortions over the IMB is, as Rafael Behr wrote with customary insight this week, “the dawning, desperate realisation that there is no way to reconcile responsible statecraft with the fulfilment of Eurosceptic fantasy”. But the realisation, if that is what it is, has come too late. The UK government and Eurosceptic (or Brexiter) fantasy are now inseparable and – in their aims to reshape the civil service and judiciary – they threaten also to capture the institutions of the state.
Of course, for those who have the true faith, it is neither fantasy nor lies, and no event or experience can shake them into accepting reality. Some, at least, still genuinely believe that there is some kind of trade agreement that can largely replicate single market membership without any of the obligations. They still believe that either now or after a few months without a deal the EU will make such an agreement, no doubt at the behest of German car makers. They still believe that it doesn’t matter much anyway, as ‘WTO terms’ will be just fine. They still believe that the Irish border issue is one confected by Brussels and perhaps Dublin. The real blockade is of their brains: fanatical Brexiter ideology prevents the entry of reality.
Their fantasy will, as it always has done, seek to drive Brexit policy in a harder and harder direction. It is the only way of outflanking encroaching reality – if we push harder our dreams will come true, and if they don’t come true it is because we aren’t pushing hard enough - and is also the only way of sustaining the populist culture war that secures them the votes they need. Derogation from the European Convention of Human Rights is the already emerging next step, perhaps after a no (trade) deal Brexit and, if so, the subsequent ripping up of the WA in its entirety. For there is surely no way that either the financial settlement or the NI provisions would survive Brexiter pressure in the absence of a trade deal (though one must pray that those for citizens’ rights would).
That seems a perfectly feasible short-term scenario, and at the beginning of this week might have seemed the most likely. Certainly Sir Ivan Rogers, who has been right about most things to do with Brexit, believes that that there will be no deal. But in this febrile atmosphere, and with a Prime Minister so lacking in consistency, principle, or even basic competence, Brexit predictions are more difficult than ever. So as the week ends it still looks possible that after all the chaos of this autumn (of which there is much more to come) clears away, some kind of fairly limited deal will be done. At least, there are a few straws in the wind – as regards both fisheries and even state aid – that this might be so.
If so, the economic consequences will be bad but not dramatic and not very visible, just a gradual decline of prosperity. Relations with the EU will be sour but not totally destroyed. Resentfully the UK will comply with the Irish Sea border, and the complex, rickety mechanisms for doing so may just about work. There will be years of ongoing negotiations on a piecemeal basis, and constant attempts by the UK to push to the limit and beyond what it had agreed. The Brexiters will be sulphurous and constantly urging more antagonistic stances, and still convinced that their fantasy would have been possible had it not been betrayed.
It’s hardly an inspiring vision, yet, limited though it is, an optimistic one which in another week may seem hopelessly unrealistic. For there are many obstacles to reaching even this very modest destination. Brexit has blockaded Britain from any more convivial one.
Friday, 11 September 2020
We have seen numerous political and cultural conventions slashed aside by the Brexit Jacobins – the full-frontal media assault on the judiciary and the illegal prorogation of parliament being the most egregious examples. Now, a cabinet minister speaking at the dispatch box of the House of Commons has, almost casually, announced that the government is proposing to “break international law” in pursuit of its Brexit policy. The qualification that it will be only “in a very specific and limited way” was almost immaterial and its ludicrousness is obvious if imagined as a defence in any criminal law trial.
Earlier the same day, Sir Jonathan Jones, the senior civil servant who heads the government’s legal department resigned. He joins a growing list of such resignations, with Brexit always at the centre, and in this case with extra force since it was clearly the result of his refusal to go along with the government’s proposed law-breaking (£). This represents a very serious moment, not just in the history of Brexit but in modern British political history more generally, and it is vital not to be inured to its significance by the continual outrageous acts of the Brexit governments. For when has a government minister ever announced an intention to knowingly break the law?
This is a very big event. Even Theresa May, who in her time often behaved with contempt for parliament and in other highly divisive ways, was moved to warn bluntly of the consequences for any international trust in the UK if the government went down this route. Another former Prime Minister, Sir John Major, subsequently made a similar point as – perhaps even more significantly given his pro-Brexit credentials – did former Tory leader Lord Howard. The Attorney-General, former ERG Chair Suella Braverman, then sought to provide a legal justification of the government’s position which attracted thunderous criticism from across the legal fraternity, with Mark Elliot, Professor of Public Law at Cambridge University, describing it as “utterly risible”.
Meanwhile, the EU requested an immediate meeting of the UK-EU Joint Committee following which it issued an extremely robust statement about this “extremely serious violation of the Withdrawal Agreement and of international law” and calling on the UK to drop its proposed measures by the end of the month with the at least implicit warning of legal action. The UK statement, which was blander in tone - although Michael Gove, the UK co-chair, was reportedly less than polite during the meeting - stated that the UK would not do so. The stage is therefore set for a colossal crisis.
What just happened?
It’s important to hold in mind these reactions because whilst the implications are huge, the underlying issues will, to many, seem arcane and even dull. In brief (more detail: here) the government plans to pass domestic legislation - the UK Internal Market Bill - which would contradict some of the provisions of the Northern Ireland Protocol (NIP), a part of the Withdrawal Agreement (WA), by allowing the UK unilaterally to make changes to its terms, rather than doing so by mutual agreement with the EU via the Joint Committee established to oversee the WA.
In particular, the legislation means that the UK government could unilaterally change or do away with customs formalities on goods travelling from Northern Ireland to Great Britain, and unilaterally remove the role of EU law and regulation in state aid policy in Northern Ireland. The latter has a significance beyond Northern Ireland in that it also aims to prevent the NIP creating any backdoor role for the EU on state aid policy within Great Britain (of which more later). When the draft legislation was published, legal experts confirmed that it empowered the government to breach international law and, indeed, that is made explicit in the Bill.
The significance of this is not that, in itself, it entails ‘ripping up the WA’ but that it creates a conflict between domestic law and the WA, which is a legally binding international treaty. The potential legal consequences of this are that the EU could take immediate action at the ECJ on the basis that even proposing this legislation breaks the ‘good faith’ clause of the WA. Alternatively, If the powers the legislation gives government were actually exercised that could give rise to a case and, potentially, penalties within the WA’s dispute mechanism.
That is (or may be) for the future. What matter now are the political implications for Brexit (and, though I don’t focus on it here, its implications for Scottish and Welsh devolution). In particular, it explicitly and officially confirms that the UK is ready to make unilateral interpretations of what was jointly agreed and, more widely, opens up the prospect that the UK regards adherence to the WA as in some way conditional upon whatever future agreements are or are not made with the EU.
This directly undercuts the central purpose of the NIP which is to provide guarantees for Northern Ireland’s situation that apply irrespective of anything else that may happen, unless or until any further agreement is reached jointly by the UK and the EU. Moreover, by treating one part of the WA in this way, it does, ultimately, open up the possibility of the UK reneging on the agreement wholesale.
That, as I warned in June, would be to embark on the road to international pariahdom. In that post I said we weren’t on that road yet, but could see the signposts pointing us in that direction. This week, the UK took the first step along it. It is undoubtedly the case that the first such step is the most difficult to take. From here on in it will get easier to continue that journey, and harder to resist those urging that it be made.
Why is this happening?
These latest developments, startling as they may be for those who have tuned out of Brexit in recent times, have not come out of nowhere. In early June Boris Johnson was already talking about the WA as being “defective” and in need of revision (even earlier, in February, there were well-sourced rumours of plans to circumvent the NIP). That of course was the deal that he himself had signed and acclaimed less than six months before. So one part of what we’re seeing is the latest and perhaps strangest example of what I wrote about last week – the way that throughout the process the UK has been internally debating what Brexit means at the same time as actually enacting it. Thus although we’ve long known that fisheries would be a contested issue, it is only more recently that state aid emerged as another such issue. And although the arrangements for Northern Ireland had apparently been settled, the UK is now re-opening them.
There are two reasons for this. One is that Dominic Cummings’ latest obsession is an activist government policy of financial support for technology firms. This isn’t the place to discuss the merits or otherwise (£) of that policy – except to note that it is all of a piece with Cummings’ drearily cliched ‘disruptor’ world view, cribbed from 1990s airport lounge business books. Nor does it really matter that there’s no good reason to think that a robust UK state aid regime – indeed the EU state aid regime – would preclude such a policy (cynics might therefore wonder if the real problem is that such a regime would prevent the Johnson-Cummings government handing out public contracts to its cronies).
What does matter is the extraordinary democratic affront that the peccadilloes of this single unelected advisor should drive national strategy and, worse, that at this late stage it should be introduced as something that might actually scupper a trade deal, with all the economic damage that will cause, and, worse still, that it should lead to the WA itself being put in jeopardy.
The second reason is equally, if not more, shameful. As was clear to many at the time and is now undeniable, Johnson, his government, and his MPs voted for and signed the WA, including the NIP, either without understanding or without caring what it meant. This lack of understanding was not just to do with state aid, but also the border arrangements for Northern Ireland and (although not a feature of this week’s debacle) the Geographical Indications agreement.
There’s no justification for this in general, and certainly none as regards the implications of an Irish Sea border, since these were loudly flagged up by many, including the DUP, at the time. More than that, such a border had already been described by Theresa May in February 2018 as completely unacceptable (£), even though she had agreed to it at the end of the phase 1 negotiations in December 2017. It was this which led to May’s backstop agreement, which Johnson then ‘renegotiated’ to return to the sea border solution – and which he claimed as a great triumph, despite having promised categorically during the Tory leadership election that he would not agree to it. This convoluted and contradictory history is a matter of documented record, and it is simply a lie for the government and Brexiters now to deny it.
So what happened was not an accident, it was wilful, deliberate policy so as to enable Johnson to say that he had got Brexit sorted out and to put that to the electorate as an ‘oven ready deal’, and then – again at his choice - to rush it through parliament with next to no scrutiny, and with the support of every single Tory MP including every member of the ERG. In the process, he repeatedly denied that the Irish Sea border he had agreed to would have the effects that he later admitted it would and which he now wants to repudiate. He was simply too lazy, too dishonest, too impatient, too greedy, too ambitious, too selfish, and too irresponsible to care.
As for Cummings, it seems that he had already essentially lost interest in the details of Brexit (£), being instead fully occupied with both his technology wet dream and his punitive attack on the civil service. Such is the arrogance and irresponsibility of the ‘disruptor’. Having done so much to foist the Brexit disaster on us, he just ceased to care until belatedly realizing that the hitherto obscure (except, for different reasons, to Lexiters) issue of state aid might get in the way of the new toy he is playing with (that toy being what was formerly called the future of our country).
As for the MPs who voted it through, they were partly cowed by the bullying of the new Johnson-Cummings regime – which had dealt so ruthlessly with the 21 members of the ‘Gawkward squad’ in September 2019 – partly, again, too lazy and arrogant to care, and partly on the basis that whatever was agreed with the EU wasn’t really binding. Bernard Jenkin, the arch-Brexiter MP, said exactly that this week, claiming that he and others of his persuasion only voted for the WA because of assurances “that it would be superseded by a full FTA; and if needs be it could be repudiated”*.
There is no way to describe this other than grotesquely dishonest or, if there is, then the only other possibility is grotesquely stupid. How could anyone, with even the scantest knowledge, possibly have thought that this was the case? How could anyone have thought when campaigning in the election, as Jenkin and his colleagues did, to ‘get Brexit done’ with Johnson’s ‘great oven-ready deal’ that it was the case? They knew, or should have known, otherwise but went along with it for reasons of temporary expediency. Now, they are pretending that they never accepted what they had agreed to and are not bound by it.
Back to no deal 1.0?
But, again, this hasn’t come out of nowhere. As I have been warning since the general election, the Brexit Ultras have never accepted the legitimacy of the WA, and have gradually become more and more vociferous in demanding that the UK renege on it entirely. That includes the ERG MPs like Iain Duncan Smith who voted for it, as well as the Brexit Party whose ever-present shadow hangs over the Tory Party (and whose MEPs also voted for the WA, in the European Parliament).
For these people, the issue isn’t this or that detail of the agreement, such as those of state aid or customs formalities, but an ideological fixation with a totally cretinous idea of ‘sovereignty’ in which Britain can simply act with total unilateral autonomy, and do so without any consequences. Tellingly, this was in essence the claim of the Attorney-General’s reasoning as to why the UK can break international law. So not only are they prepared for the ‘no deal 2.0’ of having no trade deal, they want to go back to what the 2017 parliament prevented by reinstating the ‘no deal 1.0’ of having no Withdrawal Agreement.
I also warned in July that, as has happened throughout the Brexit process, what seemed like the fringe opinions of a few obsessive extremists would quickly become mainstream. That is what has started to happen this week. They don’t seem to have been the direct architects of these events – Cummings despises the ERG, and Johnson has never been of the true faith – but they and their media cohorts leapt on the possibility of undermining the WA with glee.
If pandering to them was not the government’s motive then it was certainly its effect. Johnson has already treated the Political Declaration as an irrelevance. Now he is saying that the – his – “Brexit deal never made any sense”, and that he will break international law to flout some of it. That is bound to ramp up expectations amongst the Ultras that their dream of reneging totally is a real prospect. And, indeed, with grim inevitability, within hours of the publication of the Internal Market Bill, ERG members were talking of amendments to extend its provisions even further. As always, the moment they get one thing, no matter how extreme, they will immediately demand something even more extreme.
‘The adults are no longer in charge’
The endless dramas, zig-zags and downright chaos of the UK approach to the Brexit process are in marked contrast with that of the EU. For despite the constant refrain of ‘sovereign equality’, the two have certainly not been at all similar in the dignity of their conduct. The EU has been consistent, rational and principled in its approach. It is hard to think of anything that it has done in the last four years which is in any sense surprising and which hasn’t been long-trailed.
That is not said in a spirit of starry-eyed worship. It’s not, after all, some huge triumph to meet the base line for how we expect international relations to be conducted by liberal democracies. It is how, in the past, the UK would have been expected to behave. That it has not has caused bewilderment and, now, real anger in the EU and is a source of shame for those of us who are British and actually care about our country’s reputation, of which the Brexit faux-patriots are so careless. To get a measure of the damage, it is only necessary to imagine how the Brexiters would react if it were the EU which proposed unilaterally to tamper with the provisions of the WA, and to shamelessly admit that it was ready to do so in defiance of international law.
But as Bobby McDonagh - former Irish Ambassador to the EU, UK and Italy, so not one likely to use undiplomatic language lightly - observed this week, “the adults are no longer in charge in Downing Street”. Instead, he compares those running the UK to tantrum-throwing toddlers. And, indeed, such tantrums have been a recurring feature of Brexiter behaviour, with repeated cries of ‘it’s not fair’ throughout the long process. In the early years, Theresa May played the role of a governess misguidedly trying to soothe these shrieking man-babies. Now they are in charge.
This makes it harder than ever to understand what the government is doing or to predict what it will do next. It’s almost pointless to try to understand this week’s events in terms of whether or how they might be ‘negotiating ploys’, for example to make the talks so toxic that the EU would walk out in exasperation (as some politicians in the EU are now suggesting) so it could be blamed for no deal; or to make the EU believe that the UK is ready to rip up the entire WA if there is no trade deal, so as to secure such a deal. For what it is worth I don’t think either of these things will happen. As for the motivation, as likely as not all we have seen is an example of the Cummings mantra of ‘doing the unexpected’, as if that had a virtue in itself.
What are the effects of this week’s events?
Whatever the intention, the immediate effect is obvious. In what was already an atmosphere of almost no trust from the EU, the UK government have now eviscerated what little remained. Whilst the issues posed by the Internal Market Bill are a matter for the Joint Committee, their malign influence is bound to spread to the trade negotiations as well. These negotiations have not been helped by the parallel developments this week about UK state aid policy, which have also been very convoluted.
Whilst the Internal Market Bill is partly aimed at avoiding the application of EU state aid rules in any way in the UK, the question remains as to what the UK state aid regime is to be. This is a central bone of contention in the trade negotiations. The EU has softened its initial wish for the UK to follow EU rules, but has asked the UK to specify what its own rules will be. This week, the government announced that, on the one hand, post-transition, it would follow WTO state aid rules and, on the other, that it would develop its own system but not until next year (£).
WTO state aid rules are very different from those of the EU and they do not apply to services, and would obviously not meet the EU’s requirements for a trade deal with the UK (something confirmed by Michel Barnier’s statement at the end of this week’s talks). Yet the UK’s announcement did not rule out developing a new system that would do so, and was explicit in saying that it might agree new obligations within future free trade agreements (including, presumably, with the EU). So this part of the announcement does not scupper the trade talks, but does not advance them, either.
Equally, though, the announcement that the UK’s own system will not be developed until after the transition is over means that the EU request for details of it has been refused which is, as one EU official is quoted as saying, “tantamount to taunting us” (£). So this part of the announcement makes a trade deal more difficult. In effect, it asks the EU to take on trust that the UK will develop a suitably robust regime, just at the moment that with the Internal Market Bill bombshell trust has been so badly undermined. If there is a logic to this, it is impossible to discern. Unsurprisingly, this week’s trade talks ended with no apparent progress having been made.
There will also be repercussions beyond the negotiating tables, as ordinary citizens across Europe view the extraordinary reports of the UK’s behaviour. And there will be repercussions well beyond Europe and Brexit, given the many international disputes in which the UK calls for respect for international law. Such calls will now invite an obvious retort of hypocrisy. Already, senior US politicians are warning of the folly of the government’s conduct (£) and a CNN report suggests that “it could take the UK’s reputation years to recover from the backlash”.
Where might this lead?
I doubt, though, that any of this will concern the Brexit Ultras. Always a nihilist cult, the passage of time has made them utterly indifferent to anything other than Brexit in its most extreme form, and always moving the definition of what that means to a new extremity. They are now willing to sacrifice anything and everything to a cause that has long since ceased to bear any resemblance whatsoever to the promises they made. It has now become – and I don’t use this term lightly or carelessly – a form of political insanity, and it is an insanity which has spread to the entire government.
It’s not clear who can stop this insanity. It’s possible that this latest debacle might finally galvanize sensible voices in the Conservative Party – and there are still a few – to finally draw a line they will not allow the Ultras to cross. Michael Howard’s intervention in particular might be a sign of that, and there are some stirrings of backbench rebellion at the prospect of breaking international law. Even Bernard Jenkin seems slightly uneasy about it. So the most optimistic version is that this new low also marks a floor beneath which we will not sink. But other ERG MPs, such as Andrew Bridgen, remain obdurate. My sense is that things are simply too far gone now for the party to be reclaimed from them.
That aside, the opposition parties can do little in the face of the Tory majority and Keir Starmer, mistakenly in my view, appears unwilling to go anywhere near anything related to Brexit, though that too could change. The House of Lords may delay the Internal Market legislation but is relatively powerless to prevent the wider drift to extremism. Civil servants have limited power, and their final weapon of resignation only strengthens the ideologues. Much of the media are cowed or complicit. The public, for now anyway, are largely apathetic and perhaps understandably more concerned about coronavirus than Brexit.
So it seems that little stands in the way of the government taking ever-more extreme stances. I think that when the dust settles on this week’s events their legacy will have been to bring reneging on the WA, in its entirety, more centrally into political discourse and to have moved the UK one step closer to actually doing it. If this seems far-fetched, then consider that until a few days ago the idea of the UK overturning even one part of the WA would have been laughed at by most, and that of the government announcing its willingness to break international law deemed preposterous.
A complete repudiation, of course, would be a calamity far worse than this week’s news, far worse than no (trade) deal and, actually, far worse than if there had been no (WA) deal in the first place. For, along with all the economic damage, and the likely impact on the Northern Ireland peace process, it would irrevocably mark the UK out as a liar and cheat on the international stage. We aren’t there yet, and it’s not inevitable that we will get there, but we got a step closer this week.
It is worth remembering, as always, that nothing remotely like what is happening now was ever suggested to the voters in the 2016 Referendum or, indeed, the 2019 Election. Indeed there is a level of mendacity in the current re-writing of what was said and promised not years but only months ago which is sickening even to those of us who thought we could no longer be astounded by the incontinent dishonesty, boundless incompetence, and bankrupt morality of the Brexit Ultras.
*So much Brexit history has come and gone that it might easily be forgotten that this proposition – that a WA could be made and then later dropped – did not simply emerge as an artefact of the political situation of Johnson’s 2019 governments. Exactly the same idea had been put forward by Michael Gove in September 2018 in an ill-fated attempt to get the Ultras to support May’s Chequers proposals which, had they succeeded, would have become part of the WA. So it is not unreasonable to claim that such chicanery had long been in prospect. All this, as I’ve explained numerous times on this blog, including last week, ultimately roots back to the basic refusal of the Brexiters to accept, or to understand, the sequencing of the Brexit process.
Friday, 4 September 2020
There’s a distinct ‘back to school’ feeling in the air – and never has the beginning of the school year been the news story that it is in these Covid times – with that slightly chilly tang in the mornings that presages the end of summer. Nowhere is that more so than for Brexit, with next week’s talks marking the beginning of the final phase of the Transition Period, and the likelihood of considerable political drama. Many people who have, very likely, switched off from Brexit in recent months will see it return with a vengeance. Even leaving aside the UK-EU negotiations there will be a substantial programme of domestic legislation necessary in advance of the transition ending.Yet for all that feeling of newness, we will be returning to a very familiar landscape. For the more time goes on the clearer it is that Brexit consists of a series of recurring themes. So before we get back to the grind of the detail of state aid, fisheries (£), conformity assessments, equivalence regimes, geographical indicators (£), border queues and all the rest of it (links are to some of the latest reports/ discussions of each issue), this last post of the summer will consider some of these themes and what they mean for the coming period.
Brexit: more about Britain than exit
Little of substance has happened in the negotiations over the summer, which is not a surprise. Boris Johnson talked of putting a ‘tiger in the tank’, but as usual it was just boosterish phrase-making with no substance. As noted in my previous post, the process is in limbo awaiting political decisions that Johnson hasn’t made, or hasn’t communicated. But looking back over the entire Brexit process so far it is striking how many of these long periods of relative inactivity there have been. Despite the loudly-ticking clock of, first, the Article 50 period and, now, the transition period there’s somehow been a remarkable lack of focus on the actual task of exiting the EU. Indeed it Is only very recently that basic practical preparations for, for example, border management have begun to be made.
Some of those quiet periods have, of course, been caused by the inevitable hiatuses of the political seasons in both London and Brussels. But that aside, instead of what should have been focussed and intensive negotiations with the EU, most of the last four years has been taken up with UK domestic politics. The most obvious example is how, almost immediately she had triggered Article 50 and despite repeated promises that it would not be in the national interest, Theresa May launched her ill-fated General Election, wiping two months out of the original twenty-four month schedule. Then, when the first main extension from April 2019 to October 2019 was agreed, and Donald Tusk pointedly advised the UK “not to waste this time”, it was mainly taken up with the Tory leadership contest.
That domestic and, especially, Tory Party politics have been so central is not accidental. It has arisen because the UK tried to undertake Brexit at the same time as trying to define what it meant and how it could or should be done, something which continues to be true right up to the present moment. That obviously flows from the lack of definition by the Leave campaign, but was very much compounded by the secretive and non-consensual way that May came to define Brexit (i.e. no single market, no customs union, virtually no ECJ role), and especially the unnecessary rapidity with which Article 50 was invoked, on the back of fighting a deeply divisive and also entirely unnecessary legal battle to prevent a parliamentary vote on doing so. It was not as if there had been a time frame promised to the electorate but, as with so much of the Brexit story, keeping the ever-angry, ever-suspicious, Brexit Ultras temporarily mollified trumped every other consideration.
Perhaps even worse than that, the ongoing battle to define Brexit whilst simultaneously enacting it has been characterised by repeated refusals to accept quite obvious facts. The consequence is not just that the debate has moved more slowly than the formal process required, but that it has gone round in endless circles. There are several examples that could be given but I’ll highlight a couple of the most important.
Going round in circles
One is the wilful refusal to accept that the terms of leaving would have to be agreed in advance of the terms of the future relationship, including the future trading relationship. That was built into Article 50, which only specified that the exit terms would be agreed “taking account of” the future relationship between the departing member and the EU.
Yet from the outset many Brexiters refused to accept that this was so and in particular to accept that a financial settlement would need to be made in advance of, and separately to, any trade deal (some, indeed, have never accepted that there is any need for a financial settlement at all and some, even, that the negotiations required Article 50 to be invoked at all). May herself did not seem to grasp the issue of there being two separate deals to be done until April 2017, and even in 2019 government ministers were still saying that a trade deal would be in place the day after exit.
One could actually argue that the EU showed flexibility in agreeing to create two phases for the Article 50 talks, one on the exit terms and, if sufficient progress was made, a second phase on future terms, even though that could not yield a signed trade deal in the period. But that, itself, was resented by the Brexiters who, as David Davis, the then Brexit Secretary, put it, threatened the ‘row of the summer’ (of 2017) over this sequencing.
That row never happened, but the sentiment underlying it continues to this very day, with its lineal descendent being the growing clamour from some Ultras to repudiate the Withdrawal Agreement even if there is a trade deal, and certainly if there is not. Even more bizarrely, despite having wanted to get going with trade talks from the outset, when phase 2 was entered, the UK collapsed into internal dissent about what future terms it was seeking, leading to eighteen months of infighting that culminated with May’s defenestration and replacement by Johnson
The second main way that Brexit has gone round in circles is the refusal of Brexiters to accept – or perhaps their inability to understand – the very basic proposition that leaving the single market (SM) and leaving the customs union (CU) both, in different ways, create borders. This isn’t some ruse of the EU’s, still less is it the EU’s punishment or even choice. It is the logical and legal consequence of leaving the institutions that remove borders.
If, as Brexiters insist, Brexit must mean the UK setting its own regulations and its own tariffs, then there must be a territory within which these apply, and if there is a territory then there must be a border delineating that territory. That is true in general, and it has the economic consequence of making ‘frictionless trade’ with the EU impossible. And it is true in the particular case of Northern Ireland, with all the political ramifications of that, something which again some Brexiters still insist is confected by the EU, or Ireland, or both.
Yet for years the UK continued to talk about frictionless trade as perfectly possible, even after hard Brexit had been announced. Even now, it’s common to see Brexiters talking as if post-Brexit borders will only happen if the EU insists upon it. As for Northern Ireland, the number of times under which ‘alternative arrangements’, ‘technological solutions’ and the ‘Malthouse compromise’ have come and gone in the Brexit debate is almost impossible to count. To these examples could be added other zombie ideas, of which the claims about GATT Article XXIV are perhaps the most infamous.
Choices have consequences
So the years of the Brexit process have been characterised by a repetitive grinding down of these recurrent refusals to face reality. What could and should have been understood before the Referendum – and certainly before beginning the Article 50 process – has had to be taught, like simple arithmetic to a child who is simultaneously truculent and dull-witted, to the Brexiters (or, as it seems to outsiders, to the UK itself). And these lessons – whilst varying in content - are all of the same general sort: in choosing Brexit, the UK has chosen the consequences of Brexit, which can’t be magicked away. In particular, if the UK is outside the EU (SM, CU) then none of the things which come with being in the EU (SM, CU) any longer apply.
The impossibility of frictionless trade and the unavailability of ‘alternative arrangements’ for borders has now – at least at governmental level – been accepted (though, jaw-droppingly, is now described as “growing the customs sector” as if it were some sensible industrial policy rather than the introduction of massive new costs). Yet it is still necessary and justified for Michel Barnier to remind the UK that ‘Brexit means Brexit’, as he did at the end of the last round of talks.
For although the UK’s negotiating position under Johnson and David Frost has superficially accepted being a ‘third country’ to the EU, it continues to seek things which go well beyond what any third country has* in a whole swathe of areas. And, more subtly, by framing many of its demands in terms of third country precedents, the UK fails to understand that these do not constitute a set of established ‘rights’ for a third country but are contingent upon what – in the specific circumstances of the UK – it is in the interests of the EU to agree.
Brexiters’ negotiating conundrums
This idea that the EU is likely to give the UK a generous deal is one of the strangest features of Brexit. It appears in various slightly different guises. One is that those who most loathe the EU and denounce it for any manner of evils, including that of bureaucratic rigidity and being a ‘protectionist racket’, seem, paradoxically, to have had as their working assumption that the EU would be charitable - or, in Brexiter-speak, ‘flexible’ - in its approach to a departing member.
Another equally contradictory version is that the UK holds all the cards whereas the EU is desperate for a deal (German car makers, trade surplus etc) and in any case moribund and on the point of collapse, but at the same time is a powerful bully, willing and able to punish the UK. Similar ideas are present when it’s claimed that the UK would be fine if there’s no deal and yet when the EU warns of the prospect no deal it is making a ‘threat’ to the UK; or, conversely, that the UK can gain leverage by threatening the EU with the damage of no deal and yet no deal would not damage the UK.
But the underlying issue here is that these negotiations do not conform to the normal idea of two sides each seeking to pursue its own rational interests. On the UK side that is partly because these fantasies about the EU mean that it is treated as this peculiar mixture of ogre and pushover, but it is more because, in pursuing Brexit, the UK is in the position of doing something which is not in its rational interests. If nothing else, that is clear from the fact that, as a trade negotiation, it’s unique in setting out to create worse terms than currently exist for both parties. For the EU, that has been forced upon it, and given Brexit happened it is acting rationally to protect its own interests – which turn out to be different to those ascribed to it by Brexiters, but no less rational for that (in brief: prioritising the protection of single market integrity).
For the UK it arises from the nature of Brexit itself. Brexiters themselves sometimes acknowledge this, when saying that they fought and won an emotional battle for ‘independence’, but don’t then follow through to realise that this has put the UK permanently on the back foot in negotiations over its interests, since these have been defined in irrational terms. That follow through has been avoided by insisting that the costs of the emotional appeal to sovereignty are just Project Fear, and that sovereignty comes, or ought to come, cheaply or even at no cost at all. So the emotional argument is cloaked in a pseudo-rational veneer. No hard choices have to be made because we can gain sovereignty (as Brexiters see it) without losing anything. This is also why Brexiters have repeatedly sought to discredit or conceal projections of the costs of Brexit.
This leads to a negotiating position which is partly captured by the familiar clichés of ‘cakeism’ and ‘cherry picking’, but it’s actually much more perverse than that. The idea of having the cake (of membership) whilst eating the cake (of leaving), or of picking the juicy, enjoyable cherries and leaving the rest does imply a rationality – even if an opportunistic and unrealistic one. But the extreme Brexiter position is so emotionally hostile to everything associated with the EU that actually the cake is tainted and the cherries suspect. So they don’t just want what they can’t have, but they want what they don’t want. They are caught between wanting ‘a’ deal, but not wanting any actual deal.
If all that sounds convoluted, a different way of stating the Brexiters’ negotiating conundrum is this: whatever benefits the EU has economically, they all come at the price of sovereignty – we want sovereignty and we don’t care what it costs – but actually it’s cost free – or it would be if the EU was reasonable and would agree to what we want – then we’d have the exact same benefits as before – but those benefits come at the price of sovereignty - so if they agree to what we want then it isn’t sovereignty, which is what we want at all costs.
This, which has always been the background to, and in many ways incorporated into, the UK’s official negotiating position, effectively makes any negotiated outcome impossible.
The sand in the gears
But there’s always been some sand in the gears of this rickety Heath Robinson of an argument, which is that any government actually in power, even one defined by Brexit, has to have at least one eye on reality. In power, rather than jeering from the side lines, no government can afford the political and economic price of sovereignty at all costs when those costs become manifest. Which is why Brexiters like David Davis, Steve Baker, Dominic Raab and Suella Braverman all resigned from ministerial positions where they had responsibility for enacting Brexit so that they could preserve their fantasies intact.
That was true for Johnson, as well, when he resigned as Foreign Secretary, but the lure of premiership brought him back to the table. So he now faces a similar situation to Theresa May in being forced to at least partly confront reality. She, of course, got shredded by her party for doing so, a fact that won’t be lost on Johnson not least since he led the charge. Since of his own volition there has been no Transition Period extension, he now has no more room to indulge the fantasies he did so much to promote at the expense of the realities he did so much to deny.
Hence we’re now reaching a pivotal moment, because in the next few months, one way or another, the UK-EU relationship is going to be re-framed by a deal of some sort, or by no deal. Either will have a big negative impact on individuals and businesses but, despite the claims of some, no deal will be considerably worse than a deal. In that sense, what happens matters greatly, including the precise nature of any deal which is done as that could have big impacts on specific sectors or activities. But in some ways the outcome won’t have much effect on the underlying situation.
Deal or no deal, the Brexit psychodrama will continue
If Johnson strikes a deal of any sort, then the Ultras within and outside his party will decry it for having compromised sovereignty. If he doesn’t strike a deal, then that won’t just be an end to matters but the beginning of fresh – and very urgent and difficult - negotiations which will be caught in the same insoluble loops and conundrums of the last four years of Brexit.
There is therefore no scenario that won’t have Brexiters saying ‘this is not what Brexit was meant to be’ and there is no scenario in which they will say ‘now we have what we always wanted’. Not only will they denounce any deal, but If there is the no deal ‘clean Brexit’ the most extreme call for they will say that the UK could have had a perfect deal but for betrayal by May and the remainers, and the intransigence of the EU. And deal or no deal (but especially no deal) they will step up their agitation to renege on the Withdrawal Agreement as a price not worth paying.
That is really worth reflecting upon. No matter how much pain Brexit causes the UK it is never going to stop the Brexiters complaining. David Cameron once famously called on his party to “stop banging on about Europe”. That didn’t happen, and so the Referendum was meant to put the issue to bed. When that was won by Brexiters, it might have been thought that that, surely, would put an end to matters. But it didn’t, and nothing will, no matter what is or is not agreed in the coming months. The Tory psychodrama about Europe, into which they have dragged the entire nation, is far from over.
So as the new Brexit term begins, no one should think that it will bring a resolution. We’re not about to graduate from Brexit, we’re just changing schools. The difference is that we are moving from the sheltered junior school of EU membership and the transition period, to the much harsher senior school outside.
*The link at this point is a handy extract of the relevant parts from a speech given by Michel Barnier at the Institute of International and European Affairs in Ireland this week.