In the years before the Referendum – long before this blog started, so I haven’t kept links – I quite often came across pro-leave people explaining, usually in rather lofty tones, that leaving the EU would be very simple because everything was all set out in Article 50 of the Lisbon Treaty. Prior to that, there had been no formally defined exit mechanism. Its creation had been partly as a reassurance for the countries that joined in 2004, but it had the support of what were then called Eurosceptics in the UK in the hope that, one day, it would be their portal to ‘freedom’.
Invoking Article 50
If we have learned nothing else since 2016, it is surely that Article 50 offered only the broadest of frameworks for withdrawal, and “invoking” it was only the beginning of a complex process. So having so enthusiastically lauded Article 50 as the answer to their prayers, the most committed Brexiters actually approached it in a variety of quite contradictory ways.
One, espoused by the Vote Leave campaign documents (slide 11), was to say that “we will negotiate the terms of a new deal before we start any legal process to leave”, meaning prior to invoking Article 50. This was impossible (and rejected by the EU before the Referendum votes had even been counted) and was rarely mentioned again after the Referendum result. The second, espoused from time to time by UKIP, was simply to leave without invoking Article 50 at all. This would have been perverse, since it wouldn’t have made any of the issues involved in leaving disappear, though, quite astonishingly, it seems to be what Dominic Cummings still thinks could have happened, and he also believes the EU would have entered negotiations prior to triggering Article 50.
The third, soon dominant, idea was that Article 50 should be invoked as soon as possible, and that any delay represented backsliding and was the province of the “enemies of the people”, so immediate invocation became a test of Brexit fidelity. A final idea, which for many months Theresa May’s government, including at the time Boris Johnson, appeared to believe, was that both exit and future terms could be agreed within the Article 50 period. This was simply false.
The underlying mind-set
All this is old history now, but worth recalling because it reveals a mind-set which has not gone away and which is coming to the fore again. It was evident on the many occasions in 2018 and 2019 that Brexiters – including Rees-Mogg, Farage and Johnson – talked of ‘invoking GATT Article XXIV’ as a way of, supposedly, securing a temporary trade deal even if no exit (let alone trade deal) had been done. It was nonsense and, notably, although Johnson referred to it during his campaign to be Tory leader during an excruciatingly embarrassing interview with Andrew Neil, he never mentioned it after that. But the same mind-set is on display now in the numerous calls and threats to ‘invoke Article 16’ of the Northern Ireland Protocol (NIP).
What is the mind-set? I think it has three, related, aspects. One lies in the image it conveys of the UK having unilateral control – it ‘invokes’ things and, as such, appears to be the active party without having to have regard for other players, notably the EU. The second is that, for all their supposed disdain for expertise, Brexiters are adept at using what to the general public sounds like ‘expert jargon’ which, when delivered in dismissive or authoritative terms, gives the impression of great mastery of technical detail when, in fact, none exists. Thirdly, and perhaps most importantly, it suggests that there is a quick and easy short-cut to solve complex and intractable problems.
As regards the NIP, it is now abundantly obvious that Johnson’s government also saw that as a short-cut to ‘solving’ Brexit, without understanding or caring what it meant. The same goes for the Brexiter MPs and MEPs who voted for it in the British and European parliaments, although some of them seem to have persuaded themselves, or been persuaded by others, that it would lapse once a trade agreement was reached. Hence, even now, dullards like Iain Duncan Smith say (£) that the NIP was “always seen by both sides as a temporary solution”. This is a flat-out falsehood. Unlike May’s ‘backstop’, this was a ‘frontstop’ agreement that existed permanently and independently of any trade agreement or of there being no trade agreement at all. The two were connected only to the extent that had the trade agreement been a ‘deeper’ one, then the nature of the Irish Sea border would have been correspondingly ‘thinner’ (e.g. in terms of the extensiveness of checks).
Invoking Article 16: and then what?
Whether it was always intended or only later decided that the NIP would be reneged upon, the idea that ‘invoking Article 16’ offered a way out of what had been agreed first surfaced as early as January 13 2021, when Johnson spoke of doing so in the House of Commons. That date is of note for two reasons. Firstly, because it was less than two weeks into the actual operation of the NIP, showing how early it was being threatened (and, of course, Johnson and others had denied from the outset that the NIP meant there would be an Irish Sea border). And secondly because it predates by two weeks the EU’s own short-lived and abandoned threat to invoke Article 16 over vaccine supplies, of which Brexiters and the government now make so much.
As I wrote at the time, that was a major blunder by the EU, with no justification. Even so, and apart from the fact it never happened, what it would have meant has been heavily misrepresented. It would not have meant creating an Ireland-Northern Ireland border, as some Brexiters now claim, but only that vaccines destined for Northern Ireland would never have left the factory in Belgium. Moreover, it would have been a specific measure to deal with a particular and unforeseen emergency. In this, even as a possibility, it was entirely different to the way that the Brexiters, and the government, are now talking about how the UK might try to use Article 16.
What that talk seems to suggest is that Article 16 would allow the UK unilaterally to suspend the entirety of the NIP or even unilaterally to disapply the NIP. As Professors Katy Hayward and Dave Phinnemore of Queen’s University Belfast explain, neither of these is the case. The UK would need to identify ‘serious’ problems which were ‘unexpected’ and ‘likely to persist’, and the proposed solutions, for consideration and discussion by the Joint Committee. Diversion of trade is one possible problem which might be identified – and Frost’s recent statements seem to imply it is the one upon which the UK might base an Article 16 invocation - but it can’t just be that which was to be expected because it is inherent in the agreement. It certainly isn’t the case, as, again, Iain Duncan Smith recently claimed (£), that diversion is “forbidden” by the NIP. And most certainly Article 16 isn’t a way of just saying ‘we don’t like this agreement’: its terms would continue to exist, and many of them would continue to operate.
So, rather as with invoking Article 50, it would be the beginning of a process (though not one leading to ‘exiting’ the NIP). Thus whenever invoking Article 16 is proposed, the crucial question that should be asked is: and then what? The answer, inescapably, is further negotiation with the EU, but if that has failed to give the UK the outcome it wants without using Article 16 then it is no more likely (probably less likely) having done so. So what then? Rip up the NIP entirely, with all that will mean for possible trade sanctions from the EU, and, at the very least, diplomatic rows with the US? And, still, what then?
Article 16 can’t solve the deeper problem
For the deeper problem in all this is the same one that has existed since, at least, the UK government decided in January 2017 that Brexit meant hard Brexit. If the UK is to be outside the regulatory regime of the EU single market and the tariff regime of the customs union then the UK itself needs a border just as the EU does. So where’s the border? That question has no easier answer now than it had in all the years since 2017 during which endless models were proposed. The NIP is the least-worst answer that anyone could come up with which both sides would agree to.
The recent spate of self-serving tweets from Dominic Cummings on this subject is again instructive. Although he affects disdain for the ERG, his account is precisely that which most of them have been peddling for years, namely that the Irish border issue was a minor or even non-existent one, and only achieved prominence because of the weakness and incompetence of May’s government and its acceptance of what Cummings calls the “babbling” about the Good Friday Agreement. Had what he calls “we” (apparently meaning the Vote Leave team) been in charge, the UK would just have refused to erect borders and if the EU did then so be it: the integrity of the single market was the EU’s problem, not the UK’s (he still doesn’t seem to realise that the UK needed a border as well). By the time Johnson and Cummings came to power, it was too late and what they both childishly call the ‘Surrender Act’ (meaning the Benn Act) prevented resurrecting a hardball approach, hence the NIP with its associated Irish Sea border. This, of course, rests on the preposterous idea that a no-deal Brexit, which would have damaged the UK far more than the EU, constituted negotiating leverage had the Benn Act not prevented it.
As I say, none of this is new and I’ve catalogued it as the boilerplate position of the Brexit Ultras endlessly on this blog, as well as explaining why it was unrealistic. Apart from anything else it ignores the fact that David Davis thought pretty much exactly the same things, but found that they were unworkable, including the fantasy of an Article 50 pre-negotiation, the denial of the reality of the Irish border issue, and the delusion that Ireland was only a minor player. In short, most of Cummings’s ‘hypotheticals’ are already discredited. More generally, what developed into May’s deal wasn’t a result of the Ultras’ approach not having been tried, but of it having been tried and failed. So it is only of passing interest, and no surprise, that Cummings himself has confirmed that he shares their analysis of the Brexit process and clings – in a way reminiscent of those who used to defend the USSR as not being ‘real’ Communism – to the idea that ‘it just wasn’t tried properly’.
Frost’s flawed logic
Cummings is irrelevant now, hence he has the time to re-litigate the events of the last few years in his barrage of tweets and blogs. But what remains highly relevant is that his analysis is shared by David Frost who, of course, was one of the Cummings’ group when the NIP was negotiated. Frost may not have brewed the Kool-Aid (his skills, to the extent they are discernible, appear to be emulative rather than innovative), but he certainly drank deeply from the cup. So Cummings’s statements underscore the fact that Frost, like all the Brexit Ultras, doesn’t accept the need for the NIP or the validity of the process that led to it. Moreover, it underscores his commitment to the fanciful idea that playing ‘hardball’ pays dividends – the belief, for example, that the illegal clauses in the Internal Markets Bill paved the way to a trade deal being struck (in fact, they nearly scuppered it). The corollary of that belief is a refusal to accept that the UK losing the trust of the EU – and more widely - matters, or is even a relevant concept.
The reason this is so crucial is that it confirms something which, as I’ve argued before, I think many pundits misunderstand about Frost’s approach to the NIP. It is not ‘playing to the domestic gallery’ and it is not intended to be, though of course may end up being, a prelude to a climbdown with the EU. Like every bull market sucker, he genuinely believes that ‘this time’ it will be different. If I am right, then Frost is not making the current hard pitch as a route to a subsequent compromise giving him much but not all of what he demands, but believes he can have those demands met pretty much in full.
This seems to be confirmed this week by the government’s immediate rejection of the EU’s proposals for some flexibilities in the application of the NIP as inadequate. It also explains why Frost isn’t doing anything to build trust with the EU in the way suggested in a wise analysis of the situation by Maddy Thimont Jack of the Institute for Government this week. For, wise as it is, trust plays no part on the Frost-Cummings-Game Theory 101 approach to negotiations. It does, however, matter in the real world, and lack of trust in both the UK in general and Johnson in particular is the central stumbling block to Frost’s recent proposals being accepted when viewed from an EU perspective.
Moreover, the antagonistic atmosphere Frost has created arguably partly explains the European Commission’s refusal to recommend that the UK be allowed to rejoin the Lugano Convention (as readers of this blog will be aware). It certainly won’t have helped. Nor is it likely to help in the re-emerging disagreements over Gibraltar. More generally, Frost either doesn’t understand or doesn’t care that it is in the nature of Brexit that the UK will, permanently, be in negotiations with the EU about something or other. Eviscerating goodwill in such circumstances is extremely foolish.
So what now?
Coming back to the NIP, in her characteristically excellent assessment of the present situation, Professor Katy Hayward suggests that Frost’s strategy “simply deepens the hole that the UK has dug for itself”. She argues that the EU has three possible responses. One would be simply to accept all or most of the UK’s demands, but she is surely right to think this highly unlikely. The second would be to take some form of retaliatory action (introduction of some tariffs, exclusion of UK from some programmes). The third is to continue to try to negotiate within the framework of the NIP, as so far continues to be the case.
That might also go alongside a more minimal acceptance of Frost’s demands to the extent of further extensions of the various grace periods. This seemed likely to happen anyway, and even more so now that the EU have announced that it will, as Frost requested, pause the legal action over those grace periods the UK unilaterally extended last March. As I flagged in my previous post, last week it was being reported that the action would proceed to the next stage by the end of this month.
The logic of Frost’s position (assuming, again, that I have read it correctly) would be to respond aggressively to any retaliations, and to bank concessions on the grace periods, regard them as proof that his ‘tough’ approach works, say they don’t go far enough, and invoke Article 16. As noted above, the latter wouldn’t solve anything but it would escalate the political crisis – which is the only direction that the Frost logic points to. In that view of the world, as soon as you back down, or even compromise, you’ve lost. That is what – as Cummings’ statements show – the Ultras think happened repeatedly post-2016 and they won’t do it again. But there is ‘a but’.
Which way will ‘shopping trolley’ Johnson veer?
The analysis that all would have been fine if only the politics of the 2016-2019 period hadn’t prevented the Brexit Ultras’ strategy working is inadequate for many reasons, including its failure to understand basic realities about the EU and the single market. But it also contains its own contradiction in imagining that the Brexit process could ever proceed separately from ‘politics’ or, as Cummings puts it, ‘SW1’ (meaning, I suppose, the entirety of the politico-governmental system). So if Frost’s logic escalates the present tensions with the EU into a huge crisis, politics may well intervene decisively in the form of Johnson.
I’m sure that, in his way, Johnson buys in to the simplism that runs through the Cummings-Frost thinking, just as he once believed that both exit and trade deals could be done as part of the Article 50 process, and that GATT Article XXIV was a get out of jail free card. However, it’s hardly a startling insight that Johnson believes deeply in very little, but cares greatly about his own position and advantage and that on policy, as Cummings puts it, he veers about like a wonky shopping trolley.
So the ‘but’ for Frost’s approach is whether, when it comes to it, he will get Johnson’s support or whether he will join the long list of those Johnson has betrayed. In answering this question, clearly any issues of principle or loyalty can be discounted. Far more shamefully, it seems unlikely that any concern for peace and security in Northern Ireland will figure highly in Johnson’s priorities. On the other hand, if there were intensified pressure from the Biden administration that could matter.
What might be most relevant, though, is the sharp recent decline in the Conservative’s opinion poll ratings and Johnson’s own approval scores. If this is still continuing come an autumn crisis the calculation may be whether a major confrontation with the EU will be popular with the electorate or not. It would certainly appeal to his voter base, and to many of his MPs. It might bring back some of his public support. But it might alienate a larger number of voters, not least since Johnson was elected on the promise that he would ‘get Brexit done’ and yet here he is, still negotiating the terms of the deal formerly known as oven-ready. In particular, it might alienate the type of Tory voters who deserted Johnson in the recent Chesham and Amersham by-election, and alarm his already “jittery” backbenchers (£). If also facing the kind of Labour post-Brexit strategy I discussed in last week’s post, which seems increasingly in prospect (£), Johnson might well conclude that, as regards the NIP, discretion is the better part of valour.
How such calculations play out obviously remains to be seen, but since so much of Brexit has been more about domestic politics than Britain’s relationship with the EU it wouldn’t be altogether surprising if it were to be so again. So it’s not impossible that Frost may soon be joining Cummings in having many spare hours in which to tweet about how Brexit would have been a huge success if only he had been allowed to do it properly.
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