Friday, 15 October 2021

The moral turpitude of Brexit brinksmanship

As has been expected for some months, the autumn crisis over the Northern Ireland Protocol (NIP) began in earnest this week. Its outcome is difficult to predict, but has the potential be pivotal for UK-EU post-Brexit relations. There is some time to run before we get to that point, though. Indeed it is perfectly possible that the current phase will still be going on in time for the second anniversary of Boris Johnson’s election victory, won – it should not be forgotten - on the then dishonest and now discredited slogan that he would “get Brexit done”.

It has long been obvious, and Dominic Cummings confirmed this week, that, even whilst proclaiming that slogan, the government never regarded the NIP as a settled or legitimate arrangement. Indeed, from the outset, its fundamental provision of creating an Irish Sea border has been denied by numerous ministers, up to and including the Prime Minister, and ever since they have been chipping away at it. And within just two weeks of the NIP becoming operative Johnson was already threatening to invoke Article 16.

The critique that it is an agreement negotiated and signed by the government, whilst wholly justified, cuts no ice with Frost, Johnson or Brexiters in general. For those interested in why this is so, I’ve prepared a separate page on this blog, so as to avoid having to keep repeating it. For now, the point is that this latest crisis grows directly from the dishonesty and incompetence of what Johnson’s government did before, during and immediately after the 2019 election. It is a crisis of some complexity, hence this long and rather dense post.

The NIP row resumes

The summer holiday hiatus was set to be broken when the EU made its formal response to the UK’s July Command Paper* on Wednesday of this week. Its contents, which had been widely trailed in the preceding days, offer substantial compromises to the UK in terms of reducing border checks and customs formalities. There may be questions of whether they are as significant as is being claimed and reported, and an Institute for Government summary shows there are many gaps between the UK and EU positions. Still,  they go a long way to meeting previous UK demands, and would seem to deliver pretty much everything that businesses in Northern Ireland have been asking for. Notably, the proposals were very much framed by the EU as a response to these practical problems on the ground, rather than to the UK’s demands as such.

Although the government has said it will consider and negotiate with the EU on these proposals, before they had even been formally revealed David Frost had already effectively (though not quite in terms) indicated, both in a Tweet last weekend and then in a speech in Lisbon on Tuesday, that they were not acceptable. As so often before, Frost threatened to ‘invoke Article 16’ but, as ever, gave no hint of understanding what would come afterwards, or why he imagines that it would do anything to resolve matters. Porcine and graceless in delivery, and littered with patronizing and insulting asides, it was exactly the anti-diplomacy that Frost, whether through ambition or genuine conversion to Brexitism, has made his specialty.

The speech isn’t worth detailed discussion – Frost’s crude and self-serving narrative about why the agreement he negotiated only two years ago is a crock hasn’t evolved beyond that which I’ve analysed at length in the past. It was full of all the familiar Brexiter canards (listed in the new page mentioned earlier), and replete with the mixture of aggression, passive aggression and aggrieved victimhood that has characterised Brexit throughout. As Rafael Behr stingingly put it, it “was a whinge disguised as a hymn to national self-determination”. Its intellectual anchoring, if so it can be called, as with his Brussels lecture last year, is Edmund Burke’s outmoded eighteenth-century understanding of sovereignty, notable if only for being even more superannuated than Brexiters’ nineteenth-century understanding of trade.

What was important in the speech is, first, that, unlike the Command Paper, which was light on detail, it was accompanied by a full legal text of what amounts to an entirely new agreement.  This has been sent to the European Commission, and although it hasn’t been published it clearly isn’t a finesse of the existing NIP but a complete replacement. And, second, Frost put a new and strong emphasis on completely removing the role of the ECJ from the NIP.

There is some sophistry, as usual, about whether this is a new demand. Frost points out that it was mentioned in the Command Paper, and that is true, but it was only in passing. It certainly hasn’t been emphasised as a problem until now. The more important point is that not only was the ECJ’s role written into the NIP, it was part of the government’s own 2019 proposals for what became the NIP**, which also included explicit recognition of the need for regulatory checks between Great Britain and Northern Ireland and which envisaged regulatory alignment “over a potentially prolonged period of time”.

In other words, almost all that Frost now objects to, including the ECJ’s role, was at one time not just agreed to but proposed by the UK. This also means that the suggestion that the government’s own preferences were thwarted by the remainer parliament is false.

And even if there’s a case to trigger Article 16 on the (anticipated) grounds of the diversion of trade which is occurring (which is questionable, since it’s arguably not “anything beyond what could have been reasonably anticipated”) it cannot be argued this is so as regards the role of the ECJ. For that has not created a single practical problem and is highly unlikely to do so. It is only now coming to the fore as a purely ideological demand for theoretical ‘sovereignty’. Perhaps more significantly, it is a demand that the government must know the EU won’t accede to (at least in substance: a fudge is conceivable).

Why ‘hardball’ diplomacy is the problem not the solution

It is entirely unsurprising that, if not this, then something like it would happen. As I’ve outlined numerous times on this blog, the Johnson-Frost approach is not that of ‘normal diplomacy’, seeking concessions and offering reciprocal concessions, but one of ever-hardening demands, with each concession given seen as a sign of EU weakness and a demonstration that the ‘madman approach’ is working. The ultimate aim of this approach – more usually applied to nuclear warfare - is to secure all your negotiating demands under threat of being ‘mad’ enough to ‘press the nuclear button’ if the other side does not agree to them, regardless of any damage you, yourself, suffer as a result. It very much resembles the way the ERG came to dominate the Tory Party.

To say it isn’t normal diplomacy would not, of course, be regarded by Frost and Johnson as criticism but as praise. That’s because what is missing from their understanding is that their approach really doesn’t work very well. It’s true that the ERG got their Brexit, but ever since they have complained that it isn’t real Brexit. It’s true that the government got its trade deal, but it was defined not by what the EU had conceded but by what the UK had excluded itself from. And it’s true that Johnson got Theresa May’s “hated backstop” removed from the NIP, but only by replacing it with something he now professes also to hate.

The other side of the coin is that not only the Johnson-Frost approach but that of May and David Davis before it has entailed enormous costs to trust and goodwill with the EU, and it is actually this which has created so many of the problems which the UK government now complains of. The very fact that the EU was determined that an arrangement for Northern Ireland be agreed in advance of any trade deal and as part of the legally binding Withdrawal Agreement was partly because, from the outset, the Brexiters downplayed or denied the Irish border issue. And when in December 2017 the phase 1 agreement on what that arrangement would be was reached, David Davis immediately disowned it as not being legally binding, making it all the more important for the EU to create a watertight agreement that the UK would not wriggle out of. What else to do, when the UK had demonstrated that it could not be trusted on its word alone?

Subsequently, the ‘hardball’ tactics of threatening to illegally break the NIP with the Internal Market Bill reduced trust even further and threatened (rather than, as the Brexiters imagine, facilitated) the Trade and Cooperation Agreement. Now, the EU’s insistence on a role for the ECJ in Northern Ireland arises at least in part because it does not trust the UK with a more flexible, and therefore high-trust, arrangement.

In another tweeted comment this week, Cummings sneered at those bemoaning his admission of the UK’s lack of good faith in negotiating the NIP, saying “cheating foreigners is a core part of the job”. That may sound hard-headed in his geek-macho universe, but in reality it just makes it impossible to be trusted in a world where trust is typically needed to get you all of what you want. So the problem with the hardball approach isn’t that it is ‘nasty’ or ‘unconventional’, but that it is counter-productive in terms of producing the outcomes the government claims to seek. Far from being worldly-wise, it’s worldly-dumb.

Against all this, Frost and the Brexiters undoubtedly believe that the very fact that the EU is now tabling proposals to revise the NIP is proof that their approach works, and indeed such claims are currently being widely made. To a certain extent that’s true by definition, because if the UK hadn’t sought to change the terms then they would probably have stayed unchanged. But it misses what I think is a fundamental point, one which is as problematic for the UK as for the EU but is complex to unpack.

The perils of ‘madman theory’

Despite the breakdown of trust, and despite the UK’s abandonment of established rules of international relations, the EU has so far continued to treat the UK as if it is in the domain of normal conduct. To use the metaphor of a previous post, it is acting as if calm and reasonable discussion with an anti-social ‘neighbour from hell’ can still work.

In that sense, the EU isn’t actually responding to the UK’s ‘madman’ approach but to an imagination that its approach is still something more-or-less conventional, and not particularly different in kind to that of other third countries on its borders. No doubt that is in part because, viewed from the outside, it’s difficult to see how far and how quickly British political culture has moved from its long-established norms. In other words, the EU isn’t treating the UK as being ‘mad’, whereas the UK ascribes its ‘success’ to the EU seeing it that way - and so continues with that approach.

This sets up a dangerous little knot. In classic ‘madman theory’, A is really sane but B thinks he is, or may be, mad, and so concedes rather than face annihilation. In the present case, what if B (the EU) thinks A (the UK) is sane – but in fact A really is mad, or at least thinks that B believes he is mad, so no concession to him is enough to avoid annihilation? If that is the situation, then It’s obvious that what is in prospect is the near-inevitability of a really serious crisis, and it will come if and when the EU reaches the conclusion that it can make no more concessions to the UK and calls time.

There are signs that this point is approaching, and if it is then ‘madman theory’ will face its final test: if the UK is simply ‘playing madman’ as a strategy then, at the very last minute, it will back down and accept the EU proposals, or something like them. If, under the toxic influence of Brexiter ideology, the UK really has become ‘mad’, then the practical outcome is annihilation.

Of course in the present context we are not talking about literal ‘annihilation’ or anything like it, and for that matter we are not talking about a single, final event. The most likely outcome if there is no agreement on the EU proposals is that the UK then carries out the threat to trigger Article 16 and there would be some reciprocal measures from the EU in terms of heightened ‘market surveillance’ as well as the resumption of legal action against the UK. In other words, despite much talk to the contrary, there almost certainly wouldn’t be an immediate trade war, although that, in some more or less extensive form, could very well follow early next year.

However, this doesn’t change the fact that if Article 16 is triggered it would mark a dramatic and serious deterioration in UK-EU relations, as well as having repercussions for UK-US relations and possible security implications in Northern Ireland. Moreover, this would be happening in the context of the UK being already battered by the worsening Brexit-related supply and labour crisis and the energy crisis, and on top of the still smouldering pandemic. More fundamentally, any eventual trade war would be highly asymmetric in favour of the EU.

What are the politics of this?

So the government now has a choice. It could – and may – accept the new EU proposals, or something close to them, claiming it as a huge victory and gaining domestic kudos for the British Lion having humiliated the EU. But Frost’s pre-emptive strike seems to suggest that he has no intention of accepting them. If that is not the case then it was a remarkably unskilled intervention, making it harder for the government to do so.

For one danger of the Frost-Johnson approach, if it is designed to extract maximum concessions by making impossible demands and then backing-off from those demands when the concessions have been made, is that it excites such high expectations from the most hard-line Brexiters that the final backing-off becomes politically impossible. There are already signs that this is exactly how Brexit Tory MPs like David Davis (£) and John Redwood are responding to the EU concessions, as of course are the DUP. In the wider, and wilder, ‘Brexitosphere’, some are actively welcoming a trade war. In this way, the ‘madman’s’ pretence at being mad can become a terrible trap in which he is forced by his supporters into delivering the ‘annihilation’ he had threatened, even if he hadn’t originally intended to do so.

If – whether as a result of this pressure or because it was his intention anyway – Johnson does reject the proposals and does trigger Article 16, then of course the government will spin it as EU aggression and perhaps gain support as a result. In a sense, that has always been the ‘hedge’ bet of the madman strategy – if it fails then the government gets rewarded for being ‘plucky Britain’ standing up to the EU.

In other words, it is possible that from a domestic political point of view, even if the outcome is economically and diplomatically damaging, it might actually boost the government’s popularity. This might be especially so if it came at the same time as significant French action over Jersey fishing licences, such as the threatened cut to electricity supplies. For the reasons discussed in last week’s post, it is all too easy to imagine Johnson prioritising an immediate surge in popularity over any amount of damage to the country whose interests he is supposed to protect.

All this can be turned round and looked at from the point of view of erstwhile remainers. Some might hope that the EU taking a tough line with the UK might finally bring the country to its senses and dispel many Brexiter delusions. That’s possible, but for the reasons just given might rebound and entrench those delusions even more deeply. Conversely, some erstwhile remainers might fear that if the EU does now get tough it might be at just the wrong moment, giving the Brexit project a fresh injection of jingoism exactly as the supply and labour crisis begins to discredit it. That too is possible, but it might be that a new crisis over Brexit would damage Johnson and the Brexiters by exposing their false claim to have ‘got Brexit done’.

So these are both equally plausible (or implausible) scenarios, but the key point to make is that whatever the EU does or does not do it will almost certainly not be informed by the effect on UK politics – though how it affects Northern Ireland will be a consideration, not least because Ireland is a member state - and still less on what it does or does not do for erstwhile remainers’ ability to discredit Brexit. Those days, to the extent they ever existed, are long gone.

The moral turpitude of Brexit

Needless to say, none of these half-baked game theory constructs has the remotest relevance to those of us who simply wish to have a harmonious and prosperous relationship with our friends and neighbours. Nowhere is that more true than in Northern Ireland, where inevitably in the background there is always the memory and possibility of sectarian violence. Watching the second part of the BBC’s Blair & Brown: The New Labour Revolution this week served as a reminder of the horrors of that past, and also of the extraordinarily complex and intricate mechanisms that created the Good Friday Agreement - into which Brexit has thrown such an enormous rock.

Brexit is an ill-conceived project for all kinds of reasons, none greater than its treatment of Northern Ireland. From the casual dismissal before the referendum of the implications for the border, through the cavalier signing of the NIP, through to the current use of the Protocol as a plaything to demonstrate a bizarre theology of sovereignty at all costs, this treatment shows the moral turpitude that lies at the heart of Brexit.


*A small aside. I sometimes see people saying that Frost’s use of the term ‘Command Paper’ is yet another example of Brexiter, or just British, arrogance, implying that it is issuing ‘commands’ to the EU. There are many sticks with which to beat Frost, but this really isn’t one of them. A Command Paper is just a paper presented to Parliament “by Command of Her Majesty” – archaic, maybe, but nothing to do with Brexit.

**The link is to a Twitter thread by Professor David Phinnemore of Queen’s University Belfast, a leading expert on the NIP, and contains key extracts from the relevant documents as well as further links to the documents themselves.

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