There’s a palpable sense that Boris Johnson’s reputation has reached an inflexion point. For years it seemed as if however dishonest and incompetent he was he could do nothing wrong in the eyes of his supporters. Suddenly, he can do nothing right. We know that he has reached such a point because almost every newspaper columnist and editorial writer tells us so, and in this case conventional wisdom is reliable because what else can reputation consist of other than what is reputed to be?
As the political sociologist William Davies puts it, Johnson is like a financial asset that has lost the confidence of the market. And he is more vulnerable than most politicians to changing sentiment because he has so little substance in terms of policy agenda or ideological belief, which in turn means that there is no loyal group of ‘Johnsonites’. His politics are solely those of reputation and people buying in to that reputation, whether it be as ‘a character’ or, relatedly, as an election winner.
Labour’s increasingly effective attack line that “the joke isn’t funny anymore” acutely captures that vulnerability because it highlights that whilst Johnson hasn’t changed, the collective view of him has. So the man who first came to public prominence as a droll panelist on HIGNFY this week suffered the indignity of being openly mocked by Ant and Dec on I’m a Celebrity.
Of course there’s still scope for contrarian investors to keep faith with Johnson. Although his personal approval ratings have fallen considerably, and voter support for the Conservatives in opinion polls slightly, he might very well win a General Election if one were held tomorrow. And he has a track record of bouncing back from adverse headlines and scandals. However, It is significant that so many within his own party are now openly critical of him.
Most importantly, what seems different this time is the range of issues over which he is being criticized, from sleaze and cronyism, through specific policies such as rail building, sewage management and social care, to his ludicrously shambolic speech to the CBI this week, and the way that these are being knitted into a single narrative about his personal and political failures.
The marriage of Johnson and Brexit
This inevitably links to Brexit. The Guardian columnist Jonathan Freedland captures something of this in a recent article about the multiple dishonesties of Johnson’s government. He writes that “the mother and father of these dishonesties remains Brexit, still the organizing principle of this government and the adhesive that binds Johnson to his party”. I think that’s right, but the inextricable linkages of Brexit and Johnson’s administration are complicated.
Johnson might well have become Prime Minister even if Brexit never happened, and Brexit might well have happened without his support. So they are only contingently related. But it and his premiership are indelibly marked by each other.
On the one hand, when he did come to power it was not only on the back of Brexit but on the basis that he would be a ‘harder’ Brexiter than Theresa May. On the other hand, whilst the case for Brexit was always based on dollops of fantasy and hefty doses of dishonesty, it was Johnson’s fraudulent boosterism that gave Vote Leave its most compelling public face. He also supplied it with the bogus political rationality of what may well be the entirety of his personal and political credo, the proposition that it is possible to ‘have one’s cake and eat it’ or ‘cakeism’.
Cakeism has become a cliché and a joke, but its significance and its appeal as an idea shouldn’t be underestimated. It suggests that choices are free of consequences and decisions can be made without regard for trade-offs. With Brexit, that was an enabler of using ‘Project Fear’ to discredit any assessment of costs and risks. Even worse, it set up the paradoxical yet pervasive idea that Brexit was a crucial change, and yet, somehow, nothing much would really change at a practical level. From this frankly infantile view of the world grew the far more toxic way that as the costs and negative changes have transpired, they have invariably been ascribed to EU punishment or remainer treachery rather than being entailed by Brexit.
Johnson continued to maintain the doctrine of ‘cakeism’ even as he agreed the Trade and Cooperation Agreement (TCA), which he actually called “a cakeist treaty” and claimed that it proved his critics wrong as they had said there could be no free trade with the EU without obeying EU law. But of course this was a lie: critics of cakeism had said that the UK couldn’t have the advantageous terms of trade of a single market member without being a member. The TCA demonstrated that. From this, and the associated non-tariff barriers to trade, which he also dishonestly said had been avoided, flowed almost all the problems that have since bedeviled UK-EU trade.
Exactly the same bogus rationality is evident in the ongoing situation as regards the Northern Ireland Protocol (NIP), which now looks set to drag into the new year. Here, the cakeist proposition was that there needed to be a border and yet there didn’t need to be a border. Ultimately, that led to the disgraceful idea that the UK could make an agreement but that didn’t mean that it had agreed to it, which is exactly the knot that has tied up UK-EU relations ever since. Again, it is also what leads to the charge that the UK is the victim of EU ‘inflexibility’ or ‘legalism’ in applying what was agreed.
However, although Johnson’s own irresponsibility and dishonesty were well-suited to those of the Brexit project it would be wrong to conflate the two. It was a marriage of convenience for him and a polyamorous one for the Brexiters. Johnson, as is well known, might not have backed Brexit at all had he calculated that supporting remain would have advantaged him more. Meanwhile, Brexiters like David Davis, with his claim that there was a form of trade agreement that yielded the “exact same benefits” as single market and customs union membership, were perfectly capable of cakeism without any help from Johnson.
From Brexit to ‘Brexitification’
What can be said is that, by the time he became Prime Minister, Johnson and hard Brexit were inseparable. He made Brexit loyalty the sole defining test for ministerial office, and surrounded himself with ideologues from Vote Leave and associated groups to advise him. He also made ‘Brexitism’ his government’s modus operandi meaning, in particular, the hostility to and disdain for established norms associated with both the Vote Leave nihilists and the ERG Jacobins. That was immediately evident in the attempted prorogation, and has continued in the form of contempt for parliament, the civil service, the judiciary, universities, the media, and for the rule of national and international law. Thus Johnson’s is a Brexit government in the double sense of Brexit being its defining policy and of presiding over a ‘Brexitification’ of British politics.
It is therefore no coincidence that the proximate cause of his current fall from grace was the ill-fated attempt to save arch-Brexiter Owen Paterson from punishment, nor that the means of doing so was to propose to rip up the parliamentary procedures and also to smear the independent Commissioner for Standards as biased against Brexiters (£). Nor is it a coincidence that the government is engulfed in accusations of cronyism, because this grows from what in a post last April I called the “anti-ruleism” that defines the Brexit government. It is all the more toxic for its interconnections with the sense of privileged entitlement that has long characterized the Conservative Establishment, to which it adds the bizarre Brexit twist that anyone who objects is part of the ‘remainer elite’.
This Brexitification – I know it isn’t a word but it really should be, if only because it is so appropriately ugly – is not just about contempt for rules, norms and laws. It is also about the importation of the political rationality of cakeism into policy-making as a whole. Writing on the Conservative Home website this week, former Justice Secretary David Gauke suggests that across the board what we are seeing is the dysfunctionality of a politics which doesn’t accept the complexity and trade-offs of political reality and thinks that “a bit of oomph and optimism” will overcome them. I assume the Brexiters would dismiss this analysis because it comes from Gauke, one of the 21 rebels who lost the Conservative whip in 2019 for opposing no-deal Brexit. If so, that in itself is an example of Brexitification in that it views everything through the prism of Brexit tribalism. Yet, in general terms, it’s the same critique that many pro-Brexit Tory MPs are making of the government’s careless handling of policy detail.
Johnson as architect and prisoner of Brexit
If Brexitification has infected the wider policy arena, it also continues to shackle government policy towards Brexit itself. Hence it was not just that Johnson’s CBI speech was bizarre in content and inept in delivery. It was also, as a scathing editorial in The Times complained (£), that it had nothing to say about “post-Brexit skills shortages and trade barriers” nor about the poor performance of the FTSE-100 ever since the referendum. It was not “a serious speech for serious times”, whereas Sir Keir Starmer’s, which included commitments to improve on the TCA and to improve the tone of relations with the EU, was reported favourably.
Johnson isn’t in a position to make the kind of suggestions Starmer did, because he is both the architect and the prisoner of the problems Brexit is bringing daily to almost every sector from hospitality to construction to social care to financial services to touring performers. The terms of the TCA, which is up for review in 2026, could fairly easily be improved even within the restrictive parameters of hard Brexit – for example through increased regulatory alignment and a mobility chapter. Averting the as yet postponed but soon to come business nightmare of the ‘independent’ UKCA mark would also be a pragmatic step (see my post of last August for discussion). Dropping the endless antagonism towards the EU despite having left would be another, and indeed the precondition for substantive improvements in the relationship.
It is not inherent in Brexit for such modest initiatives to be impossible. But they would incite the wrath of the Brexit Ultras and be incompatible with the ‘Betamax’ approach of David Frost who has virtually sole charge of Brexit policy (Johnson having lost interest and the Foreign Office appearing simply to ignore the EU altogether). Even the very slight improvement in mood that seems recently to have appeared in the NIP talks has already been denounced as Frost “crumbling” to EU pressure. This is possibly why he has now started talking up post-Brexit tax cuts and vague regulatory reforms, these being the sort of things to get the Ultras salivating and the lack of which is one reason for their growing disaffection with Johnson. Indeed this is the main reason why the government is stuck with no serious post-Brexit policies: it can neither satisfy the Ultras nor can it ditch them.
That, too, goes a long way to explaining the inadequacy of the government’s response to Covid, especially in England, because of the very strong connection between pro-Brexit and anti-lockdown (or anti-restriction) theology. Notably, Frost’s speech also celebrated the lack of vaccine passports and mask-wearing compulsion. We also learned this week how planning for a no-deal Brexit materially damaged pandemic planning so, again, both Brexit and Brexitification have deformed policy-making in ostensibly non-Brexit areas. And, again, this intersects with Johnson’s cakeist approach in his reluctance to accept hard choices, as if it is possible both to defeat Covid and to avoid the inconveniences of tackling it. It’s as if his hero Churchill had promised to fight on the beaches so long as it didn’t disturb anyone’s dinner plans.
Vile
On the subject of beaches, nowhere is the linkage of Johnson’s waning reputation, Brexit, and Brexitification clearer than in the nationalistic panic about cross-channel migrants. As with Brexit itself, Nigel Farage is playing a key role in promoting this vile agenda. For the time being he no longer has a political party, but his media platform is enough. Thus for well over a year he has taken to hanging around grubbily on the English coast spying on migrant boats, rather like a leering suburban Peeping Tom bedecked in topless trousers and sweatily hoping for a glimpse of mottled flesh through his next-door neighbour’s steamed-up bathroom window.
His pains have been rewarded. Inevitably Johnson’s government has embraced rather than challenged Farage and the more general media viciousness about refugees and asylum seekers. After all, this was in part the fetid midden from which Brexit itself grew – recall the ‘Breaking Point’ poster - and the current discourse is entirely Brexitified. It has the same recourse to garbled, technical-sounding but false claims, notably ‘under international law they’re obliged to seek refuge in the first safe country they reach’ (cf. ‘GATT Article XXIV’), the same subliminal yet always denied racism, and the same objectification of migrants. And it has the same Brexiter simplism, reducing complex issues to tough-sounding but ineffectual slogans, whilst shifting blame to the EU or France and presenting Britain as the put-upon victim of an ‘invasion’ caused by its own ‘generosity’ (warning: the latter link contains some truly despicable claims).
It is also directly linked to Brexit given that welcoming anything like a remotely fair share of refugees and asylum seekers is deemed a betrayal of Brexit promises. As Sir Edward Leigh spluttered pucely this week, we were meant to have “taken back control of our borders” (even if not as yet going so far as Leigh’s own solution of taking back control of Calais, lost in 1558). Yet here is an obvious case of the failure of Brexiters to understand that choices have consequences. For if, as they think desirable, Britain wants to send asylum seekers back to EU (and EFTA) countries it can no longer do so using the Dublin Regulations, from which it voluntarily exited as part of Brexit.
Meanwhile, the UK’s preferred approach of creating bilateral agreements with EU countries for the same purpose has come to nothing, and any idea of such an agreement with France, in particular, looks unlikely given the parlous state of Anglo-French relations post-Brexit. The latter issue perhaps also reveals the consequences of hiving off UK-EU relations to Frost with his default setting of pugnacity and insistence on sovereignty at all costs. That hardly helps when you suddenly discover that you need cooperation and goodwill. Nor does Johnson’s long history of jibes at the French, as suggested by this morning’s news that his latest intervention, regarded by France as “unacceptable”, has prompted the withdrawal of an invitation to Home Secretary Priti Patel to discuss the situation.
At all events, far from being a solution, Brexit has added to the supposed problem and certainly done nothing to avert the horror that happened in the Channel this week which is all too likely to be repeated despite – indeed in part because of - Patel's crocodile tears. This creates another policy area in which Johnson is failing, and it’s an inevitable consequence of seeking to appease rather than challenge the Faragist narrative. Such appeasement is bound to lead to failure because it refuses to recognize the real problems and their possible solutions and also because whatever the government did wouldn’t be enough for Farage.
At the other end of the migration spectrum, a scheme announced by Patel six months ago to attract Nobel Prize winners and other field-leading figures to the UK has this week been revealed to have had precisely zero applications. It’s hardly a surprise considering how post-Brexit Britain appears to the outside world, something to which Brexiters are entirely oblivious. That includes the vileness of attitudes to refugees, of course. For whilst Brexiter politicians may purr about welcoming ‘the brightest and the best’, the general climate they have created means it’s by no means fanciful to imagine anyone who did come under the scheme being spat at, abused and told to ‘go back where you came from’, or worse.
It’s also another example of the boosterish but insubstantial nature of Brexitified politics. As Professor Andre Geim of Manchester University, himself a Nobel Laureate, put it, the scheme suffered from the “verbal diarrhoea of optimism”. Building and maintaining a science base, like many other policies, requires long patient slog to build capacity, not gimmicks or endless rhetoric about being ‘world-leading’.
After Johnson
If it’s the case that Johnson is the joke that isn’t funny anymore, it doesn’t follow that Brexit is similarly discredited. For one thing, for all that Johnson may have sold it as a larky adventure, Brexit has never been remotely amusing. More important is to recall that the connection between Johnson and Brexit is contingent rather than necessary.
This means that his demise, when it comes, will not reverse Brexitification (and, of course, will certainly not reverse Brexit). It’s all but unthinkable that his successor as Tory leader will not be an ardent Brexiter, and probably a more convinced one than Johnson. Nor is it clear that a UK government under any other party will be able, or will even necessarily try, to undo the toxic effect of Brexitificaton.
The tragedy of that will linger long after the joke has ended.
Friday 26 November 2021
Friday 19 November 2021
A pause to reflect
Brexit is in limbo, with talks on the Northern Ireland Protocol (NIP) continuing. The situation is febrile, with Boris Johnson repeating the UK’s threat to invoke Article 16 and Maros Sefcovic re-iterating that doing so would have “serious consequences”. Today’s meeting between Sefcovic and David Frost is important as according to Irish Foreign Minister Simon Coveney it should become clear whether progress is possible. Most likely all that will mean is the usual ‘both sides are committed to getting an agreement, but differences remain and we will continue to talk’. But the now crucial issue of the UK demand for an end to any form of ECJ involvement in governance is unlikely to be resolved.
However, a well-sourced and plausible report in the Financial Times yesterday (£) suggests that Johnson and some others in the government are now deeply worried about provoking a crisis and so, unlike Frost, are losing the will to use Article 16. Meanwhile, Frost himself was reduced to producing a tweet clarifying that he was 100% clear that Article 16 might, but then again might not, be invoked at some unspecified time. This was a marked shift from the implication in his Lisbon speech and elsewhere that such invocation was imminent if the UK’s demands were not met.
I’ve been arguing for at least a month now that, contrary to the widespread view that it would be to Johnson’s political advantage, a major crisis with the EU would actually be fraught with risk as it would add to, rather than distract from, all his other domestic problems and would remind voters that Brexit has not, as was promised, been ‘done’. At the same time, the Brexit Ultras who would push for confrontation are, at least for now, weakened because of having driven the fiasco stemming from their attempt to protect Owen Paterson.
More ludicrously, it seems from the FT report that Johnson wants a “quiet Christmas” after having had to ‘cancel’ it last year. If this, rather than any deeper motivation, is the rationale then there must be a possibility of hostilities over the NIP merely being suspended, and for the government to resume complaints and threats in the new year – although that will not bring any reduction to the risks of using Article 16.
Three ongoing Brexit processes
As ever, there’s really not much point in charting each ebb and flow of the talks and speculating on their outcome. Instead, whilst this hiatus continues, it’s worth reflecting on the strangeness of this situation, which, as I suggested last week, is an attempt to re-run the Brexit process in the hope of achieving a better outcome. Implicit within that is an acknowledgement that Brexit has in at least some respects ‘gone wrong’. That in turn links to the wider issue of whether Brexit is seen as having been successful or not. This is very much a live question, the answer to which will shape British politics for many years to come. It’s also a very complicated question, because it involves something which is simultaneously in the process of being done, being re-done, and being judged.
At one level it is about the intricacies of all that has happened since 2016, but the judgement will ultimately settle into a more broad-brush picture, rather in the way that images of power cuts, the three-day week, ‘Britain going cap-in-hand to the IMF’ and ‘rubbish piling up in the streets’ have come to define the 1970s collapse of the post-war consensus. That these things happened at different times and under different governments, as well as all the details of them, is forgotten and a received image holds sway. Historians may still have good reason to debate its validity, but the collective, generalized political memory of the 1970s has become one of crisis and decline.
The economic narrative about Brexit may be beginning to settle
Obviously that is partly just about the passage of time, but it is also the outcome of political and cultural contestations over what gets remembered or forgotten, what gets foregrounded and what gets erased. With Brexit, this process has barely started, but I would suggest that, already, the economic narrative is just starting to settle to one where the received image is one of failure. It’s true that Brexiters still leap on the odd piece of news such as, this week, Shell’s decision to headquarter in the UK. But even if these can genuinely be ascribed to Brexit and are genuinely good news (both are questionable in the Shell case) they don’t do much to dent the more general flow of bad news since, especially, the end of the transition period.
Thus opinion polls now show a sustained view that Brexit has been bad (44%) rather than good (25%) for the economy as a whole, and has had a bad effect (53%) rather than a good effect (13%) on prices in the shops – although it is of note that the number of ‘don’t knows’, running to 30%, is quite high, so it would be wrong to over-state how settled a view there is as yet. Indeed another recent poll (£) found that 46% think it is too early to say whether Brexit has been success or a failure (but of those who think it isn’t too early, 37% think it a failure and 11% a success) – although here the caveat is that this question was about Brexit as a whole and not just the economic effects.
On the question of whether, in hindsight, it was right or wrong to leave the EU, 49% now think it was wrong and 38% think it was right (13% don’t know), with ‘wrong to leave’ having been ahead in almost every poll since the end of the transition period (and ‘don’t knows’ virtually unchanged throughout the year). Meanwhile, on the admittedly now slightly odd question of whether people would now vote to leave or remain, there has been a sustained majority for remain since June 2017, and a recent uptick showing remain leading 55%-45% (excluding don’t knows).
Of course many Brexiters would argue that any emerging narrative of Brexit as being economically damaging is firmly down to media reporting, and would no doubt criticize the BBC in particular. It’s not very convincing, though, partly because the broadcast media in general, including the BBC, have been notably reluctant to explicitly link Brexit to this year’s economic problems, and partly because much of the print media, especially, is ferociously pro-Brexit. Moreover, it’s probably the case that by so vociferously denying that supply problems are anything to do with Brexit, it is Brexiters themselves who have done most to link the two in the public mind. In any case, official statistics leave little serious basis for doubt about the impact on trade. There’s some ‘quibble-room’, but Brexit wasn’t meant by its advocates to be something that ‘might not be too bad if you look at sub-section 4, column d’, but something which would be plainly and overwhelmingly positive.
In fact, my overall sense is that neither the government nor Brexiters in general any longer even try to argue any economic case for Brexit at all. It’s true that there are boosterish announcements about trade deals, the latest example being Johnson’s foreword to the government’s export plan this week, where he extols all the trade deals which have been done since “reclaiming our own chair at the WTO”. But almost anyone likely to read it will be equally likely to realise that almost all of these deals were simply roll-overs of pre-existing EU agreements, whilst the biggest of them, that with the EU itself, is massively worse than what it replaces. More generally, the central problem with using trade deals, even new ones if ever they are signed, as showing an economic case for Brexit is the miniscule difference they actually make to GDP whilst ignoring the substantial negative impact on GDP of Brexit itself.
Other than that, and the brief but now apparently abandoned attempt to claim wage rises as a Brexit benefit, the silence is remarkable. Certainly the Chancellor didn’t embrace that suggestion, and Brexit was hardly mentioned in his budget. That may not be true amongst the keyboard warriors and some of media camp-followers, but my sense (it’s only an impression, but I am quite immersed in it) is that amongst what might, with a certain amount of charity, be called the more thoughtful Brexiters there is now a tacit acceptance that, economically at any rate, Brexit is turning out to be a failure.
The political narrative is as contested as ever
However, it’s here that the political narrative becomes crucial. As many have remarked, the Brexit Ultras bear a remarkable resemblance to those communists who used to announce (and perhaps still do) that their creed had never been tried ‘properly’. Specifically there is now an increasingly widespread claim that the failure of Brexit to deliver its promises can be blamed on what happened in parliament between 2016 and 2019.
The ‘remainer parliament’
At the most general level, the charge, as recently made by the Tory MP Lucy Allan for example, is that “the biggest threat to our democracy was the period 2016-2019 when elected representatives were doing their best to thwart Brexit and block the will of the people”. This then leads to the specific claim, made repeatedly by David Frost and others, that Johnson’s Withdrawal Agreement, especially the NIP, was only signed because of the circumstances of the 2017-2019 parliament.
The general charge is demonstrably nonsense. Far from seeking to thwart Brexit, in 2017 MPs voted overwhelmingly to trigger Article 50. They never voted to remain in the EU, they never voted to revoke Article 50, and they never even voted to hold another referendum. They did vote to hold a meaningful vote on the Withdrawal Agreement, something which at the time Brexiters denounced as treachery but which, when the meaningful votes came to be held, the Brexiters used with delight in order to avert May’s deal which they regarded as not being ‘true Brexit’.
So if it is those votes which were blocking the will of the people and thwarting Brexit, then on the first two occasions Allan herself voted against May’s deal. But if this was standing up for Brexit, then she, like many other Brexiters, including Rees-Mogg and Johnson, did vote for May’s deal on the third occasion – so was this an attempt to thwart Brexit? Of course, the real point about these votes is that they showed the total incoherence of Brexit itself – voting both for or against May’s deal could be, and was, depicted by some Brexiters as ‘betraying Brexit’.
The only other candidate for MPs trying to thwart Brexit is the ‘Benn Act’, and it is this – which he persists in calling the ‘Surrender Act’ – that Frost invariably identifies as having forced the government’s hand to sign the NIP. But nothing like ‘no-deal Brexit’ had ever been proposed during the referendum as what Brexit would mean, so at the very least preventing it was no different to when Brexiter MPs like Johnson voted against May’s deal on the basis of it not being the Brexit people had voted for.
In fact, to the extent that the parliaments of 2016-2019 were ‘remainer’ parliaments, in the sense that the majority of MPs had campaigned and voted for remain and, very likely, still wanted to remain, the most truly remarkable thing about them is the exact opposite to what they are accused of. It is precisely that despite that being the majority view they did not thwart Brexit.
Back to the NIP …
On the narrower point made by Frost that the Benn Act deprived the UK of negotiating leverage in 2019, that can never strictly speaking be disproved because we don’t know what would have happened otherwise. But the proposition that a threat to do something far more damaging to the UK than to the EU would have resulted in the EU dropping its fundamental requirements about the Irish border is, on any reasonable understanding, extremely unconvincing – and will be all the more so if a climbdown in the current NIP row eventuates.
However, what is different about this, compared with narratives about the economics of Brexit or the politics of the remainer parliament, is that it’s not an ‘assessment’ of what has happened so much as a re-play of it. This means a re-run of fantasies that no border is necessary at all or that a border could have been created between Ireland and Northern Ireland that was entirely invisible and virtual (due to new technologies).
Of the first, nothing can be said other than that it shows a total ignorance of customs and regulatory territories. An equally ignorant variant is that it was only the EU that said it needed a border, and so if they erected one that was their business – the reality, of course, is that both sides need a border because both sides would – at the desire of the Brexiters – have different customs and regulatory territories.
As for ‘technological solutions’, if these are realistic then why not use them at the Irish Sea border now? It this is not possible, why would they work at the land border? And if they would work at the land border, why reject May’s deal, which would only have required the backstop ‘unless or until’ such an alternative was in place? Brexiters have no better answers to these questions now than they did in 2017-2019.
Nor does it help to say, as Frost frequently does, that the NIP was agreed before the final trade terms were known (a re-hash of the familiar and longstanding Brexiter objection to Article 50 sequencing). For the final trade terms were those of a ‘Canada-style’ deal which is precisely what gives rise to the need for a border, albeit that the complexity of border provisions is less than would have been the case in a ‘no-deal’ scenario. And nor is it relevant to say that because, currently, there is little regulatory divergence with the EU the risks of limited border controls are small. For the whole Brexiter prospectus is one of having freedom to diverge – the corollary of which freedom is border friction.
Beyond all this, it is plainly untrue that Johnson had to agree his deal because the Benn Act had prevented ‘no deal’. He could have sought an extension of the Article 50 period, for one thing. He certainly didn’t need to claim it was a great deal, and sell it to the British people as such, if he didn’t believe it. And he actually signed the treaty with the EU when he had an 80-seat majority and did so with the backing of all his MPs. As I noted at the time, many of them did not genuinely support the deal but support it they did, and not in a situation of parliamentary weakness.
But since the NIP …
Whilst much of this just goes over the same old ground as before, the way in which the government are going back into the past of the Brexit process is particularly perverse. It focusses relentlessly on the NIP and especially the GB-NI border despite the fact that opinion polling shows there is majority, and increasing, support for the Protocol in Northern Ireland. And the threats to trigger Article 16 are deeply unpopular with businesses there which would be most affected by it, as they are with border communities. In fact, Northern Ireland could be said to have a better Brexit deal, economically speaking, than any other part of the UK, and the easements proposed by the EU will remove many of the difficulties businesses have experienced.
If the argument is that the problem is political, not economic, because it treats Northern Ireland differently and therefore violates the East/West balance of the Good Friday Agreement and alienates the unionist community then a) this is inconsistent with Johnson’s original suggestion in January 2021 that the reasons for invoking Article 16 would be the economic ones of diversion of trade and supply problems, b) the government already knew it treated Northern Ireland differently, not least because of the DUP’s objections at the time, c) the government’s stated stance that it wants to change but not scrap the NIP is not enough to meet unionist objections, and d) the government should have sought to calm down rather than inflame opposition to the Protocol.
Yet whilst putting so much effort into disputing the NIP, the government has been laggardly in implementing the more general GB-EU border, as a recent report from the National Audit Office (NAO) explains. That can be attributed in part to the years in which the need for border controls was denied or played down, leading not only to a lack of government action but also a lack of business preparation. Remember that it was not until February 2020 – after Britain had left the EU – that any government minister formally and publicly acknowledged that border controls would be necessary. It also reflects the shameful irresponsibility of refusing to extend the transition period. Even so, the government does not dispute the need for such a border, and as the NAO spells out, it is not viable (£) to leave the present situation of largely incomplete import controls unrectified. Nor have I seen any Brexiter dispute this need.
This is highly significant, for it shows that, at some level, they do now accept that leaving the single market and customs union does entail extensive new border controls. But, if that is so, then it is even less defensible for them to continue to claim this is not so at the GB-NI border (which, of course, is the GB-EU border as regards goods trade) or that it would not be so if there were a UK-EU border between Ireland and Northern Ireland.
In short, second time around the Brexiter position on Northern Ireland has all of its original problems, plus many additional ones that flow from what has happened since. The greatest of these, of course, is that the NIP has since been signed.
Where will the narrative settle?
So, as the negotiations with the EU over the NIP continue, there are three confusingly different yet interconnected processes in play. One is the continuation of the Brexit process itself, in terms of the implementation of what was agreed in both the Withdrawal Agreement and Trade and Cooperation Agreement (TCA). The second is the attempt to re-run that process in the belief that there will be a different outcome, at least as regards the NIP. The third is the attempt to write or re-write the history of these still ongoing processes so as to evaluate what happened.
The first two may, either soon or eventually, come to be resolved through agreement with the EU over the NIP, through implementation of the agreements in general, and through further refinements of the TCA in particular. Although most current media attention is on the NIP talks, it is the third of these processes which, in the long-run, is the most important.
It will be resolved, if at all, when a settled, widely shared, narrative of what Brexit meant emerges. That doesn’t mean one that is undisputed, just one that is the received wisdom for most people. I suspect that, rather like Suez – though Brexit is on a far bigger scale – or perhaps appeasement, both policies which at the time were deeply divisive and contested, in due course there will be such a received collective image of Brexit. It may take years, even decades, but there are already the very early signs that this image will be one of an unjustifiable, almost inexplicable, folly.
However, a well-sourced and plausible report in the Financial Times yesterday (£) suggests that Johnson and some others in the government are now deeply worried about provoking a crisis and so, unlike Frost, are losing the will to use Article 16. Meanwhile, Frost himself was reduced to producing a tweet clarifying that he was 100% clear that Article 16 might, but then again might not, be invoked at some unspecified time. This was a marked shift from the implication in his Lisbon speech and elsewhere that such invocation was imminent if the UK’s demands were not met.
I’ve been arguing for at least a month now that, contrary to the widespread view that it would be to Johnson’s political advantage, a major crisis with the EU would actually be fraught with risk as it would add to, rather than distract from, all his other domestic problems and would remind voters that Brexit has not, as was promised, been ‘done’. At the same time, the Brexit Ultras who would push for confrontation are, at least for now, weakened because of having driven the fiasco stemming from their attempt to protect Owen Paterson.
More ludicrously, it seems from the FT report that Johnson wants a “quiet Christmas” after having had to ‘cancel’ it last year. If this, rather than any deeper motivation, is the rationale then there must be a possibility of hostilities over the NIP merely being suspended, and for the government to resume complaints and threats in the new year – although that will not bring any reduction to the risks of using Article 16.
Three ongoing Brexit processes
As ever, there’s really not much point in charting each ebb and flow of the talks and speculating on their outcome. Instead, whilst this hiatus continues, it’s worth reflecting on the strangeness of this situation, which, as I suggested last week, is an attempt to re-run the Brexit process in the hope of achieving a better outcome. Implicit within that is an acknowledgement that Brexit has in at least some respects ‘gone wrong’. That in turn links to the wider issue of whether Brexit is seen as having been successful or not. This is very much a live question, the answer to which will shape British politics for many years to come. It’s also a very complicated question, because it involves something which is simultaneously in the process of being done, being re-done, and being judged.
At one level it is about the intricacies of all that has happened since 2016, but the judgement will ultimately settle into a more broad-brush picture, rather in the way that images of power cuts, the three-day week, ‘Britain going cap-in-hand to the IMF’ and ‘rubbish piling up in the streets’ have come to define the 1970s collapse of the post-war consensus. That these things happened at different times and under different governments, as well as all the details of them, is forgotten and a received image holds sway. Historians may still have good reason to debate its validity, but the collective, generalized political memory of the 1970s has become one of crisis and decline.
The economic narrative about Brexit may be beginning to settle
Obviously that is partly just about the passage of time, but it is also the outcome of political and cultural contestations over what gets remembered or forgotten, what gets foregrounded and what gets erased. With Brexit, this process has barely started, but I would suggest that, already, the economic narrative is just starting to settle to one where the received image is one of failure. It’s true that Brexiters still leap on the odd piece of news such as, this week, Shell’s decision to headquarter in the UK. But even if these can genuinely be ascribed to Brexit and are genuinely good news (both are questionable in the Shell case) they don’t do much to dent the more general flow of bad news since, especially, the end of the transition period.
Thus opinion polls now show a sustained view that Brexit has been bad (44%) rather than good (25%) for the economy as a whole, and has had a bad effect (53%) rather than a good effect (13%) on prices in the shops – although it is of note that the number of ‘don’t knows’, running to 30%, is quite high, so it would be wrong to over-state how settled a view there is as yet. Indeed another recent poll (£) found that 46% think it is too early to say whether Brexit has been success or a failure (but of those who think it isn’t too early, 37% think it a failure and 11% a success) – although here the caveat is that this question was about Brexit as a whole and not just the economic effects.
On the question of whether, in hindsight, it was right or wrong to leave the EU, 49% now think it was wrong and 38% think it was right (13% don’t know), with ‘wrong to leave’ having been ahead in almost every poll since the end of the transition period (and ‘don’t knows’ virtually unchanged throughout the year). Meanwhile, on the admittedly now slightly odd question of whether people would now vote to leave or remain, there has been a sustained majority for remain since June 2017, and a recent uptick showing remain leading 55%-45% (excluding don’t knows).
Of course many Brexiters would argue that any emerging narrative of Brexit as being economically damaging is firmly down to media reporting, and would no doubt criticize the BBC in particular. It’s not very convincing, though, partly because the broadcast media in general, including the BBC, have been notably reluctant to explicitly link Brexit to this year’s economic problems, and partly because much of the print media, especially, is ferociously pro-Brexit. Moreover, it’s probably the case that by so vociferously denying that supply problems are anything to do with Brexit, it is Brexiters themselves who have done most to link the two in the public mind. In any case, official statistics leave little serious basis for doubt about the impact on trade. There’s some ‘quibble-room’, but Brexit wasn’t meant by its advocates to be something that ‘might not be too bad if you look at sub-section 4, column d’, but something which would be plainly and overwhelmingly positive.
In fact, my overall sense is that neither the government nor Brexiters in general any longer even try to argue any economic case for Brexit at all. It’s true that there are boosterish announcements about trade deals, the latest example being Johnson’s foreword to the government’s export plan this week, where he extols all the trade deals which have been done since “reclaiming our own chair at the WTO”. But almost anyone likely to read it will be equally likely to realise that almost all of these deals were simply roll-overs of pre-existing EU agreements, whilst the biggest of them, that with the EU itself, is massively worse than what it replaces. More generally, the central problem with using trade deals, even new ones if ever they are signed, as showing an economic case for Brexit is the miniscule difference they actually make to GDP whilst ignoring the substantial negative impact on GDP of Brexit itself.
Other than that, and the brief but now apparently abandoned attempt to claim wage rises as a Brexit benefit, the silence is remarkable. Certainly the Chancellor didn’t embrace that suggestion, and Brexit was hardly mentioned in his budget. That may not be true amongst the keyboard warriors and some of media camp-followers, but my sense (it’s only an impression, but I am quite immersed in it) is that amongst what might, with a certain amount of charity, be called the more thoughtful Brexiters there is now a tacit acceptance that, economically at any rate, Brexit is turning out to be a failure.
The political narrative is as contested as ever
However, it’s here that the political narrative becomes crucial. As many have remarked, the Brexit Ultras bear a remarkable resemblance to those communists who used to announce (and perhaps still do) that their creed had never been tried ‘properly’. Specifically there is now an increasingly widespread claim that the failure of Brexit to deliver its promises can be blamed on what happened in parliament between 2016 and 2019.
The ‘remainer parliament’
At the most general level, the charge, as recently made by the Tory MP Lucy Allan for example, is that “the biggest threat to our democracy was the period 2016-2019 when elected representatives were doing their best to thwart Brexit and block the will of the people”. This then leads to the specific claim, made repeatedly by David Frost and others, that Johnson’s Withdrawal Agreement, especially the NIP, was only signed because of the circumstances of the 2017-2019 parliament.
The general charge is demonstrably nonsense. Far from seeking to thwart Brexit, in 2017 MPs voted overwhelmingly to trigger Article 50. They never voted to remain in the EU, they never voted to revoke Article 50, and they never even voted to hold another referendum. They did vote to hold a meaningful vote on the Withdrawal Agreement, something which at the time Brexiters denounced as treachery but which, when the meaningful votes came to be held, the Brexiters used with delight in order to avert May’s deal which they regarded as not being ‘true Brexit’.
So if it is those votes which were blocking the will of the people and thwarting Brexit, then on the first two occasions Allan herself voted against May’s deal. But if this was standing up for Brexit, then she, like many other Brexiters, including Rees-Mogg and Johnson, did vote for May’s deal on the third occasion – so was this an attempt to thwart Brexit? Of course, the real point about these votes is that they showed the total incoherence of Brexit itself – voting both for or against May’s deal could be, and was, depicted by some Brexiters as ‘betraying Brexit’.
The only other candidate for MPs trying to thwart Brexit is the ‘Benn Act’, and it is this – which he persists in calling the ‘Surrender Act’ – that Frost invariably identifies as having forced the government’s hand to sign the NIP. But nothing like ‘no-deal Brexit’ had ever been proposed during the referendum as what Brexit would mean, so at the very least preventing it was no different to when Brexiter MPs like Johnson voted against May’s deal on the basis of it not being the Brexit people had voted for.
In fact, to the extent that the parliaments of 2016-2019 were ‘remainer’ parliaments, in the sense that the majority of MPs had campaigned and voted for remain and, very likely, still wanted to remain, the most truly remarkable thing about them is the exact opposite to what they are accused of. It is precisely that despite that being the majority view they did not thwart Brexit.
Back to the NIP …
On the narrower point made by Frost that the Benn Act deprived the UK of negotiating leverage in 2019, that can never strictly speaking be disproved because we don’t know what would have happened otherwise. But the proposition that a threat to do something far more damaging to the UK than to the EU would have resulted in the EU dropping its fundamental requirements about the Irish border is, on any reasonable understanding, extremely unconvincing – and will be all the more so if a climbdown in the current NIP row eventuates.
However, what is different about this, compared with narratives about the economics of Brexit or the politics of the remainer parliament, is that it’s not an ‘assessment’ of what has happened so much as a re-play of it. This means a re-run of fantasies that no border is necessary at all or that a border could have been created between Ireland and Northern Ireland that was entirely invisible and virtual (due to new technologies).
Of the first, nothing can be said other than that it shows a total ignorance of customs and regulatory territories. An equally ignorant variant is that it was only the EU that said it needed a border, and so if they erected one that was their business – the reality, of course, is that both sides need a border because both sides would – at the desire of the Brexiters – have different customs and regulatory territories.
As for ‘technological solutions’, if these are realistic then why not use them at the Irish Sea border now? It this is not possible, why would they work at the land border? And if they would work at the land border, why reject May’s deal, which would only have required the backstop ‘unless or until’ such an alternative was in place? Brexiters have no better answers to these questions now than they did in 2017-2019.
Nor does it help to say, as Frost frequently does, that the NIP was agreed before the final trade terms were known (a re-hash of the familiar and longstanding Brexiter objection to Article 50 sequencing). For the final trade terms were those of a ‘Canada-style’ deal which is precisely what gives rise to the need for a border, albeit that the complexity of border provisions is less than would have been the case in a ‘no-deal’ scenario. And nor is it relevant to say that because, currently, there is little regulatory divergence with the EU the risks of limited border controls are small. For the whole Brexiter prospectus is one of having freedom to diverge – the corollary of which freedom is border friction.
Beyond all this, it is plainly untrue that Johnson had to agree his deal because the Benn Act had prevented ‘no deal’. He could have sought an extension of the Article 50 period, for one thing. He certainly didn’t need to claim it was a great deal, and sell it to the British people as such, if he didn’t believe it. And he actually signed the treaty with the EU when he had an 80-seat majority and did so with the backing of all his MPs. As I noted at the time, many of them did not genuinely support the deal but support it they did, and not in a situation of parliamentary weakness.
But since the NIP …
Whilst much of this just goes over the same old ground as before, the way in which the government are going back into the past of the Brexit process is particularly perverse. It focusses relentlessly on the NIP and especially the GB-NI border despite the fact that opinion polling shows there is majority, and increasing, support for the Protocol in Northern Ireland. And the threats to trigger Article 16 are deeply unpopular with businesses there which would be most affected by it, as they are with border communities. In fact, Northern Ireland could be said to have a better Brexit deal, economically speaking, than any other part of the UK, and the easements proposed by the EU will remove many of the difficulties businesses have experienced.
If the argument is that the problem is political, not economic, because it treats Northern Ireland differently and therefore violates the East/West balance of the Good Friday Agreement and alienates the unionist community then a) this is inconsistent with Johnson’s original suggestion in January 2021 that the reasons for invoking Article 16 would be the economic ones of diversion of trade and supply problems, b) the government already knew it treated Northern Ireland differently, not least because of the DUP’s objections at the time, c) the government’s stated stance that it wants to change but not scrap the NIP is not enough to meet unionist objections, and d) the government should have sought to calm down rather than inflame opposition to the Protocol.
Yet whilst putting so much effort into disputing the NIP, the government has been laggardly in implementing the more general GB-EU border, as a recent report from the National Audit Office (NAO) explains. That can be attributed in part to the years in which the need for border controls was denied or played down, leading not only to a lack of government action but also a lack of business preparation. Remember that it was not until February 2020 – after Britain had left the EU – that any government minister formally and publicly acknowledged that border controls would be necessary. It also reflects the shameful irresponsibility of refusing to extend the transition period. Even so, the government does not dispute the need for such a border, and as the NAO spells out, it is not viable (£) to leave the present situation of largely incomplete import controls unrectified. Nor have I seen any Brexiter dispute this need.
This is highly significant, for it shows that, at some level, they do now accept that leaving the single market and customs union does entail extensive new border controls. But, if that is so, then it is even less defensible for them to continue to claim this is not so at the GB-NI border (which, of course, is the GB-EU border as regards goods trade) or that it would not be so if there were a UK-EU border between Ireland and Northern Ireland.
In short, second time around the Brexiter position on Northern Ireland has all of its original problems, plus many additional ones that flow from what has happened since. The greatest of these, of course, is that the NIP has since been signed.
Where will the narrative settle?
So, as the negotiations with the EU over the NIP continue, there are three confusingly different yet interconnected processes in play. One is the continuation of the Brexit process itself, in terms of the implementation of what was agreed in both the Withdrawal Agreement and Trade and Cooperation Agreement (TCA). The second is the attempt to re-run that process in the belief that there will be a different outcome, at least as regards the NIP. The third is the attempt to write or re-write the history of these still ongoing processes so as to evaluate what happened.
The first two may, either soon or eventually, come to be resolved through agreement with the EU over the NIP, through implementation of the agreements in general, and through further refinements of the TCA in particular. Although most current media attention is on the NIP talks, it is the third of these processes which, in the long-run, is the most important.
It will be resolved, if at all, when a settled, widely shared, narrative of what Brexit meant emerges. That doesn’t mean one that is undisputed, just one that is the received wisdom for most people. I suspect that, rather like Suez – though Brexit is on a far bigger scale – or perhaps appeasement, both policies which at the time were deeply divisive and contested, in due course there will be such a received collective image of Brexit. It may take years, even decades, but there are already the very early signs that this image will be one of an unjustifiable, almost inexplicable, folly.
Friday 12 November 2021
Welcome to Brexit 2.0
The ongoing Brexit process is in one of its periodic ‘quiet before the storm’ moments, with the storm threatening at times to be a hurricane and at others just some lingering drizzle. Over the last couple of weeks it was generally being assumed that the UK would ‘trigger Article 16’ of the Northern Ireland Protocol (NIP) as early as next week, when COP-26 had ended, or if not then in early December. Thus speculation shifted to how the EU would respond, from targeted introduction of tariffs up to and including the possibility of giving notice of termination of some or all of the Trade and Cooperation Agreement (TCA).
Possibly as a result, David Frost’s statement in the House of Lords on Wednesday was slightly softer in tone than his recent remarks, with the threat of Article 16, whilst by no means removed, seeming to have been punted into the more indefinite future of “a short number of weeks”. It’s certainly hard to see how the current stasis can persist much beyond that given that the various grace period extensions expire at the end of the year. It’s also hard to see how the ongoing technical talks can resolve the apparently incompatible political mandates the negotiators have. We may well see yet more signaling of political positions following Frost’s meeting with Maros Sefcovic today, at which it’s reported (£) that the EU will offer further operational flexibilities, but on the now core issue of ECJ oversight will reiterate that it is non-negotiable.
Notwithstanding Frost’s slight change of tone, it is consistently reported that the EU’s expectation is that the UK is determined to trigger Article 16. If so, its response would depend partly on the grounds on which it was invoked. The central complexity of this situation lies in the relationship between law and politics. The use of Article 16 isn’t in and of itself a violation of the NIP – it exists as a mechanism that may legally be used in certain circumstances, really as a temporary response to serious and unforeseen problems, which begins a new process of negotiation to find a resolution. Yet everyone knows, not least because the government doesn’t disguise it, that the UK’s political intention is to use it to completely re-write, or even put an end to, the NIP. It’s also clear that many Brexiters in the media and beyond wrongly imagine that Article 16 is akin to Article 50 of the Lisbon Treaty, and provides an exit gateway from the NIP.
Frost trades on this slippery relationship of law and politics by insisting at one moment that there must be a full revision of the treaty – thus inviting major retaliation - whilst at other times, as on Wednesday, calling for the EU to be “calm” and not make the “massive and disproportionate response” of suspending the TCA, as if all he had in mind all along was a very limited and legitimate use of Article 16. In a way, this oscillation between aggression and passive-aggression is a microcosm of the simultaneous bellicosity and victimhood that characterizes Brexiter political psychology generally.
Minimalist and maximalist possibilities
So one possibility is that any UK trigger is couched in quite limited terms, thus placing limits on what the EU could reasonably and legally do in response. If that was the UK approach it would perhaps be aimed at further suspending implementation of, say, the chilled meats and plant product provisions, for so long that – assuming no adverse effects followed – it could be claimed that they were unnecessary on a permanent basis. Yet this would hardly serve the stated intention of rewriting the agreement, or meet the new red line over ECJ involvement. Nor would it satisfy the Brexit Ultras for long.
It’s even conceivable, then, that what is in prospect is a rolling or repeated programme of Article 16 invocations and threatened invocations stretching for months into the future, each targeting a limited part of the NIP, aimed at gradually chipping away at its entirety, whilst restricting scope for EU retaliation. This would be consistent with the way that the Brexit government has conducted itself throughout, following a pattern set domestically by the ERG: that is, to push ever harder, bank every concession, and push again for more.
Such an approach would be profoundly destabilizing for Northern Ireland, and for the UK in general, but this government is unlikely to care about that. To the extent that it is a possibility, it would make it sensible from an EU perspective to respond in the harshest legally possible way to any triggering of Article 16, and there are now very clear signs that this is emerging as the collective view of EU member states, including France and Germany. Patience with the UK’s duplicity is perhaps especially exhausted in Ireland (£).
At the same time, the EU will seek to mobilise international and especially US support. Ursula von der Leyen had a meeting with Joe Biden in Washington this week during which the UK’s Article 16 threat and responses to it were discussed. The subsequent EU statement stressed the importance of the NIP and Withdrawal Agreement being in place for the sake of peace and stability throughout the island of Ireland, whilst the US readout was to my mind rather more anodyne, and certainly less specific, in referring only to the two leaders’ “continued support for political and economic stability in Northern Ireland”. It didn’t quite seem to justify von der Leyen’s claim that Biden gave full support to the EU’s position, although of course we don’t know exactly what was said within the meeting.
Far more striking was an extremely robust warning to the UK from senior members of the powerful US House Foreign Affairs Committee not to invoke or even threaten to invoke Article 16, which subsequently received strong support from other senior and influential political actors in the US. The wording of this is significantly different to other interventions from US politicians so far, including previous remarks from Joe Biden, in that it is explicitly concerned with Article 16, and not just with the need to uphold the Good Friday Agreement (GFA) and the peace process. That is important, as a repeated argument made by the UK government has been that its opposition to the Protocol is motivated by a desire to uphold the GFA and maintain peace, so that in invoking Article 16 it would not be defying the US. That argument is neutered by the Committee’s statement, and there has been some speculation that it is what prompted the apparent softening of Frost’s Wednesday statement.
Nevertheless, it is still abundantly possible, as some of the more aggressive postures Frost has taken imply, that the UK trigger will be couched in a maximalist way, citing the central provisions of the NIP as unworkable and inciting the strongest of responses from the EU (and, perhaps, a firmer public reaction from Biden). That would delight the Brexit Ultras although it’s worth recalling how their delight with the triggering of Article 50 quickly turned to complaint that it had been ‘premature’ (£) and had exposed the UK to the inexorable pressure of the no-deal cliff edge. For in this maximalist scenario, with notice of the suspension or termination of the TCA being the EU response, precisely such a cliff edge would open up.
Brexit 2.0
Indeed this would be wholly appropriate, because the basis of the government’s approach is to re-run the entire Brexit process in the belief that a ‘better’ outcome than Brexit 1.0 can be secured by Johnson’s true believers and the use of ‘hardball’ tactics. So they would really like to go right back to the beginning of the Article 50 process, and in particular they want to revisit the entirety of the Irish border issue right down to the fundamentals of whether hard Brexit entails any border and all the ideas of supposed technological and administrative solutions that could be applied.
It is shockingly dishonest, if one could be shocked any more by the dishonesty, given that Johnson agreed and signed the NIP. It is also shockingly stupid, if one could be shocked any more by the stupidity in the continued boneheaded denial of what hard Brexit means for borders (£). It’s like watching an inordinately obtuse moron endlessly re-calculating 1+1 in the unshakeable belief that eventually the answer will be 3.
And so it is as if we are being transported back in time. Already Brexiters like Sir Jeffrey Donaldson are talking about how ‘Germany would not allow’ a trade war and we are even seeing a revival of all the bogus claims of 2016-2017 about how ‘German car makers’ and the UK's trade deficit with the EU are bound ensure a great deal for Britain. This is why – as outlined in my previous post - if the EU give notice of terminating the TCA because it was predicated on a Withdrawal Agreement (including the NIP) that the UK is now reneging on, the Brexiters would then seek to renege on the financial settlement, which they always believed should only be agreed (if at all) as a quid pro quo for a trade agreement.
In both the minimalist and maximalist versions of these scenarios, the triggering of Article 16 would be the beginning and not the end of a protracted new Brexit phase – which we might call Brexit 2.0 - and no one can predict where it will end up. Moreover it will be one characterized by a total breakdown of any surviving trust and goodwill between the EU and the UK. It may also, to an extent determined by the terms of the Article 16 invocation, involve some degree of parliamentary legislation. There are suggestions in the press (£) that the government is hoping this can be achieved by secondary legislation, entailing less parliamentary scrutiny and debate than primary legislation. It is also reported that the government is in the process of ‘shopping around’ for legal opinions (£) from sympathetic lawyers to justify the use of Article 16.
The domestic politics of Brexit 2.0
All this could bring the domestic politics of Brexit into sharp focus in a way that hasn’t been true since before the 2019 election. That politics will be fraught and complex. The most obvious domestic consequence of triggering Article 16 will be to feed a lot of red meat to the core leave voters and the pro-Brexit press. Just as the overall process is heading back to 2016-19 so too can we expect a re-ignition of the polarisation of that period. Hence we already have headlines in the Express about an ‘EU punishment plot to wreck Christmas’.
It’s possible, and many fear, that the consequence will be a massive upsurge of bellicose nationalism from which Johnson will profit hugely. Some even think that this would be the motivation for triggering Article 16. But time has moved on, and the circumstances are very different to Brexit 1.0. Of course part of that difference is that Britain has left the EU now, and also that there is a large Conservative majority in parliament. That puts Johnson in a stronger position than the May government.
On the other hand, it will glaringly expose the emptiness of the promise to ‘get Brexit done’. We’ve already seen, most recently in the ongoing row over parliamentary standards, divisions between the ‘red wall’ and ‘traditional seat’ Tory MPs. For the former, in particular, telling voters who came over to them primarily to deliver Brexit, and to stop arguing – or even hearing – about it, that we’re going to do it all again, is likely to go down very badly. We’ve also seen in the Chesham and Amersham by-election how ‘liberal Tories’ in what were safe seats are repelled by Johnson’s nationalist and populist politics, so they too will deplore re-opening Brexit in this way.
More generally, Johnson is a far less popular figure than he was. It is too early to say that the Paterson/ standards scandal is a turning point, but it has renewed the critique, recently articulated by John Major, of Johnson as both dishonest in general and contemptuous of norms and rules of political conduct in particular. Of course the Brexiters have nothing but scorn for Major, but he still speaks for a certain segment of the core Tory vote which they cannot afford to alienate. By re-running Brexit, Johnson is going to be under sustained pressure to explain why he signed a deal he now rejects, and why he lied about that deal being an excellent one. He will also be more vulnerable to criticism if he uses backdoor parliamentary methods and dodgy legal advice given the now established pattern of his cavalier treatment of parliament and the rule of law.
Plus, unlike Brexit 1.0, all this will be happening in a country horribly battered by the continuing pandemic – the more horribly because of governmental failures – as well suffering the ongoing supply and labour crisis, which is already and rightly linked in the public mind to Brexit, and a somewhat related cost of living crisis. Dumping a new Brexit crisis on top of all this could be a recipe for disaster for the government. For even if such a crisis didn’t result in immediate trade sanctions from the EU, the possibility of these and the chilling effect of that possibility on business investment (£), as well as the political storm in general, would fill the headlines. There are also suggestions (£) that the government is preparing to withdraw from participation in Horizon Europe, the Copernicus satellite system, and Euratom cooperation as part of the showdown with the EU. More self-inflicted damage on a deeply damaged country.
Labour’s Brexit 2.0 opportunity
In such a scenario, much would depend upon how the Labour Party responds, since it will need its own Brexit 2.0 strategy. Keir Starmer’s recent comments that he wants to “make Brexit work” have attracted considerable attention, much of it critical. My own view – as I’ve argued many times before - is that this, or something very like it, is the only viable approach for Labour to take and, more importantly, the only viable approach for our country to take. Brexit has happened, in the sense that the UK has left the EU; but Brexit isn’t over, in the sense that what ‘not being in the EU’ means is a still ongoing process. The latter is, indeed, precisely what the government is insisting on by seeking to revise or abandon the NIP.
So, on the one hand, trying to re-debate the question of whether or not the UK should leave is totally pointless, indeed totally meaningless. But, on the other, debating how the ongoing process should occur is vital, and most especially it is vital that that debate isn’t framed by the dishonesty and ideological extremism of the Brexiters. If the response is to say that any version of Brexit is worse than being in the EU well, fine, but it doesn’t negate the fact that some versions of the ongoing process are better or worse than others. It doesn’t even mean giving up on the possibility of re-joining, because, for sure, the route to that, if there is one, goes through a period of close and improving relations.
There is an interesting argument, put forth by the political commentator Jon Worth this week, that Labour would be better off not even to use the word ‘Brexit’ in this context, and simply to argue for a better relationship with the EU, in both tone and substance. I’ve got a lot of sympathy for that idea, and in fact have recently being saying the same thing in some (unrecorded) meetings, but it probably isn’t going to happen. However what could perform a similar function to Worth’s proposed decoupling ‘Brexit’ from ‘this Brexit', and be a better slogan than ‘make Brexit work’, might be something on the lines of ‘Labour for a better Brexit’.
Or does it all fizzle out?
With all this said, it’s at least possible that the NIP row will just fizzle out (as the admittedly very different fishing row seems to have done this week), with the UK accepting some version of the EU’s offer of operational flexibilities. That could be because the whole Article 16 threat was always brinksmanship, or because the government has been unnerved by the threatened EU response (and/or by reactions in the US). Or it could happen if focus groups are showing the kind of adverse reactions amongst voters that the analysis in this post anticipates.
If one or more of these applies then it would be in Johnson’s nature, and consistent with his history, to U-turn. As Rafael Behr acutely pointed out this week, Johnson is also consistent in betraying those who trust or give loyalty to him. This being so, it’s perfectly conceivable that he will dump his simpering acolyte, David Frost, without compunction so as to avoid a confrontation with the EU. For that matter, Frost is such a snurge that it might not even be necessary to dump him – the one-time remainer turned Brexit ideologue might well just fall in line like a latter day Vicar of Bray.
However, as suggested in a previous discussion of the idea of ‘madman strategy’, Johnson could find that even if he wants to de-escalate he has raised the expectations of the Brexiters too high to do so. It’s not at all clear that the ERG and their media supporters will tamely accept Article 16 being left untriggered, especially if what was latterly the central demand of removing all role for the ECJ isn’t met. So one possibility is that this becomes a new and potentially highly destabilising crisis for Johnson, in which like all his recent predecessors he falls foul of the ERG.
So a final, and quite likely, possibility is that, whilst accepting the EU proposals, Johnson and Frost continue to gripe about the NIP and continue to make more or less loud threats to use Article 16 in pursuit of further changes. In this way, they keep the pot boiling with the EU whilst hoping to keep the lid on the pot of the ERG. In those circumstances ‘a better Brexit’ would still be a valid line for Labour to take, but it would have much less potency than in the context of a major crisis over Article 16.
From the point of view of the country as a whole this would arguably almost be the worst of all outcomes, with a permanent low-level antagonism with the EU rumbling on, and Brexiters still endlessly trying to revisit the past in the hope that they will find the pot of gold at the end of the rainbow. To put it another way, for all the pain it would cause all of us, a short, sharp and hard lesson in realpolitik might be better for Britain in the long run than an endless game of Tom Tiddler’s ground with the EU.
Possibly as a result, David Frost’s statement in the House of Lords on Wednesday was slightly softer in tone than his recent remarks, with the threat of Article 16, whilst by no means removed, seeming to have been punted into the more indefinite future of “a short number of weeks”. It’s certainly hard to see how the current stasis can persist much beyond that given that the various grace period extensions expire at the end of the year. It’s also hard to see how the ongoing technical talks can resolve the apparently incompatible political mandates the negotiators have. We may well see yet more signaling of political positions following Frost’s meeting with Maros Sefcovic today, at which it’s reported (£) that the EU will offer further operational flexibilities, but on the now core issue of ECJ oversight will reiterate that it is non-negotiable.
Notwithstanding Frost’s slight change of tone, it is consistently reported that the EU’s expectation is that the UK is determined to trigger Article 16. If so, its response would depend partly on the grounds on which it was invoked. The central complexity of this situation lies in the relationship between law and politics. The use of Article 16 isn’t in and of itself a violation of the NIP – it exists as a mechanism that may legally be used in certain circumstances, really as a temporary response to serious and unforeseen problems, which begins a new process of negotiation to find a resolution. Yet everyone knows, not least because the government doesn’t disguise it, that the UK’s political intention is to use it to completely re-write, or even put an end to, the NIP. It’s also clear that many Brexiters in the media and beyond wrongly imagine that Article 16 is akin to Article 50 of the Lisbon Treaty, and provides an exit gateway from the NIP.
Frost trades on this slippery relationship of law and politics by insisting at one moment that there must be a full revision of the treaty – thus inviting major retaliation - whilst at other times, as on Wednesday, calling for the EU to be “calm” and not make the “massive and disproportionate response” of suspending the TCA, as if all he had in mind all along was a very limited and legitimate use of Article 16. In a way, this oscillation between aggression and passive-aggression is a microcosm of the simultaneous bellicosity and victimhood that characterizes Brexiter political psychology generally.
Minimalist and maximalist possibilities
So one possibility is that any UK trigger is couched in quite limited terms, thus placing limits on what the EU could reasonably and legally do in response. If that was the UK approach it would perhaps be aimed at further suspending implementation of, say, the chilled meats and plant product provisions, for so long that – assuming no adverse effects followed – it could be claimed that they were unnecessary on a permanent basis. Yet this would hardly serve the stated intention of rewriting the agreement, or meet the new red line over ECJ involvement. Nor would it satisfy the Brexit Ultras for long.
It’s even conceivable, then, that what is in prospect is a rolling or repeated programme of Article 16 invocations and threatened invocations stretching for months into the future, each targeting a limited part of the NIP, aimed at gradually chipping away at its entirety, whilst restricting scope for EU retaliation. This would be consistent with the way that the Brexit government has conducted itself throughout, following a pattern set domestically by the ERG: that is, to push ever harder, bank every concession, and push again for more.
Such an approach would be profoundly destabilizing for Northern Ireland, and for the UK in general, but this government is unlikely to care about that. To the extent that it is a possibility, it would make it sensible from an EU perspective to respond in the harshest legally possible way to any triggering of Article 16, and there are now very clear signs that this is emerging as the collective view of EU member states, including France and Germany. Patience with the UK’s duplicity is perhaps especially exhausted in Ireland (£).
At the same time, the EU will seek to mobilise international and especially US support. Ursula von der Leyen had a meeting with Joe Biden in Washington this week during which the UK’s Article 16 threat and responses to it were discussed. The subsequent EU statement stressed the importance of the NIP and Withdrawal Agreement being in place for the sake of peace and stability throughout the island of Ireland, whilst the US readout was to my mind rather more anodyne, and certainly less specific, in referring only to the two leaders’ “continued support for political and economic stability in Northern Ireland”. It didn’t quite seem to justify von der Leyen’s claim that Biden gave full support to the EU’s position, although of course we don’t know exactly what was said within the meeting.
Far more striking was an extremely robust warning to the UK from senior members of the powerful US House Foreign Affairs Committee not to invoke or even threaten to invoke Article 16, which subsequently received strong support from other senior and influential political actors in the US. The wording of this is significantly different to other interventions from US politicians so far, including previous remarks from Joe Biden, in that it is explicitly concerned with Article 16, and not just with the need to uphold the Good Friday Agreement (GFA) and the peace process. That is important, as a repeated argument made by the UK government has been that its opposition to the Protocol is motivated by a desire to uphold the GFA and maintain peace, so that in invoking Article 16 it would not be defying the US. That argument is neutered by the Committee’s statement, and there has been some speculation that it is what prompted the apparent softening of Frost’s Wednesday statement.
Nevertheless, it is still abundantly possible, as some of the more aggressive postures Frost has taken imply, that the UK trigger will be couched in a maximalist way, citing the central provisions of the NIP as unworkable and inciting the strongest of responses from the EU (and, perhaps, a firmer public reaction from Biden). That would delight the Brexit Ultras although it’s worth recalling how their delight with the triggering of Article 50 quickly turned to complaint that it had been ‘premature’ (£) and had exposed the UK to the inexorable pressure of the no-deal cliff edge. For in this maximalist scenario, with notice of the suspension or termination of the TCA being the EU response, precisely such a cliff edge would open up.
Brexit 2.0
Indeed this would be wholly appropriate, because the basis of the government’s approach is to re-run the entire Brexit process in the belief that a ‘better’ outcome than Brexit 1.0 can be secured by Johnson’s true believers and the use of ‘hardball’ tactics. So they would really like to go right back to the beginning of the Article 50 process, and in particular they want to revisit the entirety of the Irish border issue right down to the fundamentals of whether hard Brexit entails any border and all the ideas of supposed technological and administrative solutions that could be applied.
It is shockingly dishonest, if one could be shocked any more by the dishonesty, given that Johnson agreed and signed the NIP. It is also shockingly stupid, if one could be shocked any more by the stupidity in the continued boneheaded denial of what hard Brexit means for borders (£). It’s like watching an inordinately obtuse moron endlessly re-calculating 1+1 in the unshakeable belief that eventually the answer will be 3.
And so it is as if we are being transported back in time. Already Brexiters like Sir Jeffrey Donaldson are talking about how ‘Germany would not allow’ a trade war and we are even seeing a revival of all the bogus claims of 2016-2017 about how ‘German car makers’ and the UK's trade deficit with the EU are bound ensure a great deal for Britain. This is why – as outlined in my previous post - if the EU give notice of terminating the TCA because it was predicated on a Withdrawal Agreement (including the NIP) that the UK is now reneging on, the Brexiters would then seek to renege on the financial settlement, which they always believed should only be agreed (if at all) as a quid pro quo for a trade agreement.
In both the minimalist and maximalist versions of these scenarios, the triggering of Article 16 would be the beginning and not the end of a protracted new Brexit phase – which we might call Brexit 2.0 - and no one can predict where it will end up. Moreover it will be one characterized by a total breakdown of any surviving trust and goodwill between the EU and the UK. It may also, to an extent determined by the terms of the Article 16 invocation, involve some degree of parliamentary legislation. There are suggestions in the press (£) that the government is hoping this can be achieved by secondary legislation, entailing less parliamentary scrutiny and debate than primary legislation. It is also reported that the government is in the process of ‘shopping around’ for legal opinions (£) from sympathetic lawyers to justify the use of Article 16.
The domestic politics of Brexit 2.0
All this could bring the domestic politics of Brexit into sharp focus in a way that hasn’t been true since before the 2019 election. That politics will be fraught and complex. The most obvious domestic consequence of triggering Article 16 will be to feed a lot of red meat to the core leave voters and the pro-Brexit press. Just as the overall process is heading back to 2016-19 so too can we expect a re-ignition of the polarisation of that period. Hence we already have headlines in the Express about an ‘EU punishment plot to wreck Christmas’.
It’s possible, and many fear, that the consequence will be a massive upsurge of bellicose nationalism from which Johnson will profit hugely. Some even think that this would be the motivation for triggering Article 16. But time has moved on, and the circumstances are very different to Brexit 1.0. Of course part of that difference is that Britain has left the EU now, and also that there is a large Conservative majority in parliament. That puts Johnson in a stronger position than the May government.
On the other hand, it will glaringly expose the emptiness of the promise to ‘get Brexit done’. We’ve already seen, most recently in the ongoing row over parliamentary standards, divisions between the ‘red wall’ and ‘traditional seat’ Tory MPs. For the former, in particular, telling voters who came over to them primarily to deliver Brexit, and to stop arguing – or even hearing – about it, that we’re going to do it all again, is likely to go down very badly. We’ve also seen in the Chesham and Amersham by-election how ‘liberal Tories’ in what were safe seats are repelled by Johnson’s nationalist and populist politics, so they too will deplore re-opening Brexit in this way.
More generally, Johnson is a far less popular figure than he was. It is too early to say that the Paterson/ standards scandal is a turning point, but it has renewed the critique, recently articulated by John Major, of Johnson as both dishonest in general and contemptuous of norms and rules of political conduct in particular. Of course the Brexiters have nothing but scorn for Major, but he still speaks for a certain segment of the core Tory vote which they cannot afford to alienate. By re-running Brexit, Johnson is going to be under sustained pressure to explain why he signed a deal he now rejects, and why he lied about that deal being an excellent one. He will also be more vulnerable to criticism if he uses backdoor parliamentary methods and dodgy legal advice given the now established pattern of his cavalier treatment of parliament and the rule of law.
Plus, unlike Brexit 1.0, all this will be happening in a country horribly battered by the continuing pandemic – the more horribly because of governmental failures – as well suffering the ongoing supply and labour crisis, which is already and rightly linked in the public mind to Brexit, and a somewhat related cost of living crisis. Dumping a new Brexit crisis on top of all this could be a recipe for disaster for the government. For even if such a crisis didn’t result in immediate trade sanctions from the EU, the possibility of these and the chilling effect of that possibility on business investment (£), as well as the political storm in general, would fill the headlines. There are also suggestions (£) that the government is preparing to withdraw from participation in Horizon Europe, the Copernicus satellite system, and Euratom cooperation as part of the showdown with the EU. More self-inflicted damage on a deeply damaged country.
Labour’s Brexit 2.0 opportunity
In such a scenario, much would depend upon how the Labour Party responds, since it will need its own Brexit 2.0 strategy. Keir Starmer’s recent comments that he wants to “make Brexit work” have attracted considerable attention, much of it critical. My own view – as I’ve argued many times before - is that this, or something very like it, is the only viable approach for Labour to take and, more importantly, the only viable approach for our country to take. Brexit has happened, in the sense that the UK has left the EU; but Brexit isn’t over, in the sense that what ‘not being in the EU’ means is a still ongoing process. The latter is, indeed, precisely what the government is insisting on by seeking to revise or abandon the NIP.
So, on the one hand, trying to re-debate the question of whether or not the UK should leave is totally pointless, indeed totally meaningless. But, on the other, debating how the ongoing process should occur is vital, and most especially it is vital that that debate isn’t framed by the dishonesty and ideological extremism of the Brexiters. If the response is to say that any version of Brexit is worse than being in the EU well, fine, but it doesn’t negate the fact that some versions of the ongoing process are better or worse than others. It doesn’t even mean giving up on the possibility of re-joining, because, for sure, the route to that, if there is one, goes through a period of close and improving relations.
There is an interesting argument, put forth by the political commentator Jon Worth this week, that Labour would be better off not even to use the word ‘Brexit’ in this context, and simply to argue for a better relationship with the EU, in both tone and substance. I’ve got a lot of sympathy for that idea, and in fact have recently being saying the same thing in some (unrecorded) meetings, but it probably isn’t going to happen. However what could perform a similar function to Worth’s proposed decoupling ‘Brexit’ from ‘this Brexit', and be a better slogan than ‘make Brexit work’, might be something on the lines of ‘Labour for a better Brexit’.
Or does it all fizzle out?
With all this said, it’s at least possible that the NIP row will just fizzle out (as the admittedly very different fishing row seems to have done this week), with the UK accepting some version of the EU’s offer of operational flexibilities. That could be because the whole Article 16 threat was always brinksmanship, or because the government has been unnerved by the threatened EU response (and/or by reactions in the US). Or it could happen if focus groups are showing the kind of adverse reactions amongst voters that the analysis in this post anticipates.
If one or more of these applies then it would be in Johnson’s nature, and consistent with his history, to U-turn. As Rafael Behr acutely pointed out this week, Johnson is also consistent in betraying those who trust or give loyalty to him. This being so, it’s perfectly conceivable that he will dump his simpering acolyte, David Frost, without compunction so as to avoid a confrontation with the EU. For that matter, Frost is such a snurge that it might not even be necessary to dump him – the one-time remainer turned Brexit ideologue might well just fall in line like a latter day Vicar of Bray.
However, as suggested in a previous discussion of the idea of ‘madman strategy’, Johnson could find that even if he wants to de-escalate he has raised the expectations of the Brexiters too high to do so. It’s not at all clear that the ERG and their media supporters will tamely accept Article 16 being left untriggered, especially if what was latterly the central demand of removing all role for the ECJ isn’t met. So one possibility is that this becomes a new and potentially highly destabilising crisis for Johnson, in which like all his recent predecessors he falls foul of the ERG.
So a final, and quite likely, possibility is that, whilst accepting the EU proposals, Johnson and Frost continue to gripe about the NIP and continue to make more or less loud threats to use Article 16 in pursuit of further changes. In this way, they keep the pot boiling with the EU whilst hoping to keep the lid on the pot of the ERG. In those circumstances ‘a better Brexit’ would still be a valid line for Labour to take, but it would have much less potency than in the context of a major crisis over Article 16.
From the point of view of the country as a whole this would arguably almost be the worst of all outcomes, with a permanent low-level antagonism with the EU rumbling on, and Brexiters still endlessly trying to revisit the past in the hope that they will find the pot of gold at the end of the rainbow. To put it another way, for all the pain it would cause all of us, a short, sharp and hard lesson in realpolitik might be better for Britain in the long run than an endless game of Tom Tiddler’s ground with the EU.
Sunday 7 November 2021
Owen Paterson's role in Brexit
It’s probably fair to say that Owen Paterson was not a household name until the events that led to his resignation last week. However, he played a significant role in the Brexit saga, albeit of a particular sort. During the 2016 Referendum he had neither the high campaigning profile of, say, Boris Johnson or Michael Gove nor quite the media profile of Brexiter backbenchers like John Redwood or Jacob Rees-Mogg. Instead, he was a central figure in the complex networks of pressure groups and thinktanks that both prepared the ground for the referendum and which thereafter proselytised for hard Brexit.
Thus as well as being on the steering group of the ERG, with Redwood he was one of the founder members in 2015 of Conservatives for Britain. This group prepared the ground for Tory MPs who were dissatisfied with whatever David Cameron achieved in the pre-Referendum ‘re-negotiation’ with the EU to campaign to leave when the Referendum came. He went on to become one of the three MPs who founded the Vote Leave campaign.
He brought to the campaign the authority and respectability of someone who had held cabinet roles in two key areas affected by Brexit. Between 2010 and 2012 he had been Northern Ireland Secretary and between 2012 and 2014 the Secretary of State for DEFRA. During the same period, he acquired, in 2013, a holiday home in the Dr̫me, France Рlike some other leading Brexiters, his Euroscepticism did not extend to disdain for the ease with which such purchases were possible as a result of EU membership.
UK 2020
Once outside the cabinet, in 2014 Paterson founded and was chairman of the thinktank UK 2020, one of numerous pro-Brexit, libertarian and climate change sceptic groups that at one time or another have been housed at 55 Tufton Street (as was the Vote Leave campaign in its early days). Indeed Paterson had a range of connections with this nexus of groups, both in the UK and the US.
Because this thinktank was a private company, he was not required to reveal the identities of the donors funding it. In turn, this meant that when it provided Paterson with thousands of pounds of funding for various overseas trips, he was only obliged to name the UK 2020 itself as the source of the money, rather than its funders. However, an investigation by the Guardian in 2019 identified two of them, one of which was Randox which is also one of the firms for which Paterson’s lobbying led to his being found in breach of parliamentary rules. Paterson closed UK 2020 in October 2019.
Meanwhile, Paterson served on the political advisory board of the Leave means Leave campaign, also resident at 55 Tufton Street, dedicated to ‘clean Brexit’ (aka the hardest, and possibly no deal, form of Brexit). It was dissolved at the end of January 2020 when Britain left the EU. He then became (and appears still to be) the Chairman of the Centre for Brexit Policy, yet another pro-Brexit thinktank, which was founded in March 2020.
Replacing the Withdrawal Agreement
Amongst this Centre’s publications the most remarkable, because of what it portends, is that of July 2020 entitled Replacing the Withdrawal Agreement. As its title suggests, it proposes that the entire Withdrawal Agreement, including the Northern Ireland Protocol (NIP), is flawed because it is not “sovereignty compliant”. Many of the ideas go back to the longstanding claim of the Brexit Ultras that the entire issue of the Northern Ireland border is false or exaggerated, and easily soluble with technology. Paterson himself, invoking his authority as a former Northern Ireland Secretary, had made almost identical arguments in 2018.
As I discussed in detail when it was published, these ideas are very deep-rooted amongst the Brexit Ultras, and I warned at the time that although what it proposed was “extraordinary”, the history of the Brexit process shows how such fringe ideas quite quickly become government policy. Indeed, within months of the Centre’s report, the government was proposing to renege on parts of the NIP, as part of the Internal Market Bill. Now, a year later, the government’s position on the NIP is effectively identical with that of the report, including the now ubiquitous Brexiter claim that it was negotiated and signed because the government was in a weak position and held hostage by ‘the remainer parliament’.
I would suggest that if, as seems quite likely now, the government triggers Article 16 and effectively torpedoes the NIP then it will not be long before it moves on to wanting to scrap the entire Withdrawal Agreement. Indeed it is very easy to imagine that if, as is possible, the EU suspends or terminates the Trade and Cooperation Agreement, on the basis that it was only agreed because there had been a Withdrawal Agreement including the NIP, then the government will say that it only agreed the financial settlement in the Withdrawal Agreement in anticipation of a trade deal. In other words, it is by no means improbable that the entirety of the July 2020 Centre for Brexit Policy report will become government policy.
“Only a madman would actually leave the market”
Whether or not all of this happens, Paterson has already made a major contribution in pushing what was once Euroscepticism to the full-throated Jacobinism of the Brexit Ultras. Nowhere is that journey more obvious than in the quote with which he will always be most associated. In 2015, when asked about the impact of Brexit, were it to happen, on trade with the EU he assured the public that “only a madman would actually leave the market” (1.26 minutes in to clip). The only reasonable interpretation that could be put on that was that after Brexit the UK would remain a member of the single market. Yet, after the referendum, he, like many other Brexiters, insisted that only the hard Brexit of leaving the single market would be true Brexit.
Subsequently, in 2019, Paterson claimed that he had been misunderstood, and that what he meant was that the UK would go on trading with the EU – that is, trading ‘with’ the market rather than as a ‘member’ of it. It is very hard to give credence to that, since what could ‘not leaving’ mean other than ‘staying in’ the market? Moreover, the full quote goes on to refer to “the members of the market”.
The most charitable explanation – and it requires a lot of charity - is that he, like many other Brexiters, genuinely didn’t understand the difference between single market membership and a free trade agreement or just ‘market access’. But even if that is really so, it is utterly reprehensible that someone involved so deeply and for so many years in campaigning to leave the EU should be confused about so basic a fact. There can be little doubt that as a result of claims such as Paterson’s many voters may, with far more justification, have taken Brexit to mean leaving the EU but remaining in the single market.
Paterson’s legacy
Paterson’s career as an MP has now ended in disgrace, although he may well continue to play his part in the ‘Brexitosphere’ of thinktanks and pressure groups in which he has had so prominent a role. In that role he was central to the development of the ever-hardening demands of the Brexit Ultras. I can’t help thinking that history will judge him even more harshly for that than for the lobbying that led to his downfall.
Thus as well as being on the steering group of the ERG, with Redwood he was one of the founder members in 2015 of Conservatives for Britain. This group prepared the ground for Tory MPs who were dissatisfied with whatever David Cameron achieved in the pre-Referendum ‘re-negotiation’ with the EU to campaign to leave when the Referendum came. He went on to become one of the three MPs who founded the Vote Leave campaign.
He brought to the campaign the authority and respectability of someone who had held cabinet roles in two key areas affected by Brexit. Between 2010 and 2012 he had been Northern Ireland Secretary and between 2012 and 2014 the Secretary of State for DEFRA. During the same period, he acquired, in 2013, a holiday home in the Dr̫me, France Рlike some other leading Brexiters, his Euroscepticism did not extend to disdain for the ease with which such purchases were possible as a result of EU membership.
UK 2020
Once outside the cabinet, in 2014 Paterson founded and was chairman of the thinktank UK 2020, one of numerous pro-Brexit, libertarian and climate change sceptic groups that at one time or another have been housed at 55 Tufton Street (as was the Vote Leave campaign in its early days). Indeed Paterson had a range of connections with this nexus of groups, both in the UK and the US.
Because this thinktank was a private company, he was not required to reveal the identities of the donors funding it. In turn, this meant that when it provided Paterson with thousands of pounds of funding for various overseas trips, he was only obliged to name the UK 2020 itself as the source of the money, rather than its funders. However, an investigation by the Guardian in 2019 identified two of them, one of which was Randox which is also one of the firms for which Paterson’s lobbying led to his being found in breach of parliamentary rules. Paterson closed UK 2020 in October 2019.
Meanwhile, Paterson served on the political advisory board of the Leave means Leave campaign, also resident at 55 Tufton Street, dedicated to ‘clean Brexit’ (aka the hardest, and possibly no deal, form of Brexit). It was dissolved at the end of January 2020 when Britain left the EU. He then became (and appears still to be) the Chairman of the Centre for Brexit Policy, yet another pro-Brexit thinktank, which was founded in March 2020.
Replacing the Withdrawal Agreement
Amongst this Centre’s publications the most remarkable, because of what it portends, is that of July 2020 entitled Replacing the Withdrawal Agreement. As its title suggests, it proposes that the entire Withdrawal Agreement, including the Northern Ireland Protocol (NIP), is flawed because it is not “sovereignty compliant”. Many of the ideas go back to the longstanding claim of the Brexit Ultras that the entire issue of the Northern Ireland border is false or exaggerated, and easily soluble with technology. Paterson himself, invoking his authority as a former Northern Ireland Secretary, had made almost identical arguments in 2018.
As I discussed in detail when it was published, these ideas are very deep-rooted amongst the Brexit Ultras, and I warned at the time that although what it proposed was “extraordinary”, the history of the Brexit process shows how such fringe ideas quite quickly become government policy. Indeed, within months of the Centre’s report, the government was proposing to renege on parts of the NIP, as part of the Internal Market Bill. Now, a year later, the government’s position on the NIP is effectively identical with that of the report, including the now ubiquitous Brexiter claim that it was negotiated and signed because the government was in a weak position and held hostage by ‘the remainer parliament’.
I would suggest that if, as seems quite likely now, the government triggers Article 16 and effectively torpedoes the NIP then it will not be long before it moves on to wanting to scrap the entire Withdrawal Agreement. Indeed it is very easy to imagine that if, as is possible, the EU suspends or terminates the Trade and Cooperation Agreement, on the basis that it was only agreed because there had been a Withdrawal Agreement including the NIP, then the government will say that it only agreed the financial settlement in the Withdrawal Agreement in anticipation of a trade deal. In other words, it is by no means improbable that the entirety of the July 2020 Centre for Brexit Policy report will become government policy.
“Only a madman would actually leave the market”
Whether or not all of this happens, Paterson has already made a major contribution in pushing what was once Euroscepticism to the full-throated Jacobinism of the Brexit Ultras. Nowhere is that journey more obvious than in the quote with which he will always be most associated. In 2015, when asked about the impact of Brexit, were it to happen, on trade with the EU he assured the public that “only a madman would actually leave the market” (1.26 minutes in to clip). The only reasonable interpretation that could be put on that was that after Brexit the UK would remain a member of the single market. Yet, after the referendum, he, like many other Brexiters, insisted that only the hard Brexit of leaving the single market would be true Brexit.
Subsequently, in 2019, Paterson claimed that he had been misunderstood, and that what he meant was that the UK would go on trading with the EU – that is, trading ‘with’ the market rather than as a ‘member’ of it. It is very hard to give credence to that, since what could ‘not leaving’ mean other than ‘staying in’ the market? Moreover, the full quote goes on to refer to “the members of the market”.
The most charitable explanation – and it requires a lot of charity - is that he, like many other Brexiters, genuinely didn’t understand the difference between single market membership and a free trade agreement or just ‘market access’. But even if that is really so, it is utterly reprehensible that someone involved so deeply and for so many years in campaigning to leave the EU should be confused about so basic a fact. There can be little doubt that as a result of claims such as Paterson’s many voters may, with far more justification, have taken Brexit to mean leaving the EU but remaining in the single market.
Paterson’s legacy
Paterson’s career as an MP has now ended in disgrace, although he may well continue to play his part in the ‘Brexitosphere’ of thinktanks and pressure groups in which he has had so prominent a role. In that role he was central to the development of the ever-hardening demands of the Brexit Ultras. I can’t help thinking that history will judge him even more harshly for that than for the lobbying that led to his downfall.
Friday 5 November 2021
Fishy arguments
It’s been a horrible week for Brexit news, and a depressing one for any hope that UK-EU relations will settle into harmony or, at least, pragmatic cooperation. Careful readers of this blog will have been primed for the resumption of the Jersey fishing rights row this autumn, and almost everyone expected a crisis over the Northern Ireland Protocol (NIP). With both happening simultaneously, it’s important to understand how they do and don’t relate to each other, not least because it’s clear that the Brexiters and the government are intent on lumping them together in false and hypocritical ways. But that’s also a difficult task, because each of them involves considerable complexity – hence an even longer than usual post.
Fishing licences row
As regards the row over licences for French boats, it is a complicated story as fishing stories always are. It is partly about the issuing of licences to fish in the 6-12 nautical mile zone by the UK generally (licences for the 12-200 mile zone are effectively granted automatically). However, the central issue relates to the large number of rejected or outstanding applications to fish in Channel Island waters, which first erupted in May. That adds another layer of complexity because of the distinctive constitutional status of the Channel Islands.
Jersey and Guernsey
The Jersey dispute arises from Brexit because the Trade and Cooperation Agreement (TCA) superseded the Anglo-French Granville Bay Agreement. The latter agreement was originally created, following numerous disputes between Jersey and France, in 1839 and was updated in 2000 with implementation in 2004. Scrapping it as part of Brexit was strongly lobbied for by the Jersey Fishermen’s Association during the TCA negotiations. Separately, the UK also chose to leave the 1964 London Fisheries Convention causing problems for fishing around Guernsey, Alderney and Sark.
As well as having that difference in historical background, the Guernsey problems have so far been quietly dealt with because its approach has been to issue interim licences until 31 October 2021, automatically renewable monthly until full new licences are issued in December to be in force from 31 January 2022 [1]. By contrast, the Jersey approach has resulted in a mixture of boats fully licensed, boats temporarily licensed until 31 January 2022, and boats which had an ‘amnesty’ until, in effect, 31 October 2021 but with no renewability unless transferred to the temporary licensing list. It is the latter boats which are at the centre of the row. This Guernsey-Jersey distinction is a niche issue, to say the least, yet it seems an important and neglected part of the story.
Bogus comparisons
At all events it is crucial to grasp that this row is primarily over licences for Jersey waters, which are issued by the Jersey government, given that central to France’s complaint is an alleged disparity between the UK’s treatment of its boats and those of other EU states. Thus Clément Beaune, France’s Minister for European Affairs, tweeted in response to David Frost that whereas about 90% of all EU licence requests had been granted by the UK [2], France had not received licences for 40% of its requests. The implication was that France was being discriminated against.
However, it was a bogus comparison because the majority (59%) of France’s ungranted licences are applications to fish in Jersey waters, and France seems to be the only EU country with boats applying for such licences (certainly, all licences so far granted by Jersey are to French boats). Moreover all of the small (under 12 metre) boats and about 80% of the large boats seeking UK (not Channel Islands) 6-12 mile licences are French. It is these smaller boats which are far more likely to have ungranted licences because they tend to lack the expensive GPS systems needed to readily provide the data required to prove they have an historical record of fishing in the relevant waters.
This means that, as a matter of simple arithmetic, France’s number and proportion of ungranted licences is bound to be far greater than any other EU country, not because it is being discriminated against but just because it is the only EU country involved in the vast majority of relevant applications (i.e. small boats in the inner zone around the UK and Jersey). It would be equally absurd to say that, because all the Jersey licences for EU boats have gone to France, it has been specially favoured! In fact, the only inter-country comparison that can be made for the applications over which the UK has discretion is between France and the other country seeking large boat licences in the UK inner zone, Belgium, which has 19% of its licences still pending (i.e. 81% granted) whereas France has only 3% pending (i.e. 97% granted).
This isn’t to say that France has no grievance at all – a key point is that had the TCA negotiations not been so truncated, at British insistence, the details of licensing data requirements for small boats could have been agreed. Nor is France behaving particularly heinously. After all, it’s hardly the only country in the world to make bellicose noises about fishing rights! But the grievance is not especially serious (although of course it matters hugely to the fishermen affected) and it’s not the grievance of discriminatory treatment claimed.
Contradictory conduct
Moreover, France’s conduct has been somewhat contradictory. On the one hand, it has been acting as if this were still an Anglo-French matter. That is despite the fact that France, like Jersey, had wanted Channel Islands fisheries to become part of the TCA - although, interestingly, during the May crisis, the French Minister of the Sea called for the Granville Bay Agreement to be reactivated and in September France called for a revival of consultative process of the old agreement. Yet, on the other hand, it has been seeking to make it a UK-EU dispute.
These are contradictory to the extent that, viewed as a UK-EU dispute, making threats of unilateral French action against British boats and imports, or raising energy supply tariffs to Jersey, is not only arguably disproportionate to the grievance but also arguably illegitimate. The UK government has suggested such action would be a breach of the TCA. The French argument is that it would be ‘retorsion’, falling outside of the Dispute Resolution Mechanisms of the TCA [3]. Yet, at the same time, French Prime Minister Jean Castex requested concerted EU action in a letter to European Commission President Ursula von der Leyen which was leaked last weekend (and of which more later).
In fact, the European Commission has been notably unwilling to ‘take France’s side’ or to escalate the row politically, perhaps recognizing that the grievance claim is rather overblown. Rather, it has acted as a broker, arranging technical meetings between British, French and Channel Island authorities. This led (unless it was a coincidence) to Jersey issuing some forty-nine further licences on Monday, and France subsequently suspending its threat of unilateral sanctions. On Thursday, Frost and Beaune met – itself perhaps slightly odd if this is seen as a UK-EU dispute – without apparent outcome but with no new flare-up of hostilities either. This isn’t the end of the story as there are still talks to come, and the new licences granted are only temporary, but as the week has gone on the row has certainly de-escalated.
Yet much damage has been done. Apart from a further deterioration in the Anglo-French relationship, Brexiters and the UK government have been all too keen to build upon the conflation of the Anglo-French and UK-EU aspects of the row to try to link it with their wider confrontational approach to Britain’s post-Brexit relations with the EU, especially as regards the NIP. So, in what was already a fraught situation, the fisheries row has exacerbated a “poisonous atmosphere” for the NIP talks (£).
Northern Ireland Protocol row
The NIP is bound up with a similarly long and far more fraught history, this time between the UK and Ireland, which is far too complex to review here. Crucially it too grows from (though does not supersede but seeks to accommodate) a situation defined by a pre-existing agreement between two member states of the EU, i.e. the 1998 Good Friday (Belfast) Agreement (GFA). Moreover, this agreement was to a large degree predicated upon both parties being member states, in that the EU single market and customs union had removed the need for an economic border between Ireland and Northern Ireland prior to the GFA and thereby created an important pre-condition for it.
So in both cases inter-governmental relationships became ameliorated by being enfolded within common membership of the EU and have been disrupted by Brexit. It’s not difficult to see how the longstanding UK-Spain dispute over Gibraltar falls into the same category, for all that it isn’t currently so fractious. The argument that the EU played a role in maintaining peace was mocked by Brexiters during the referendum campaign with the reductio ad absurdum that to point to it was to predict that Brexit would mean World War Three. But it is a fact that many longstanding disputes between member states have, at least, been de-escalated by virtue of membership of the EU.
Indeed, that’s underscored by Boris Johnson’s call upon Ursula von der Leyen to intervene in the fishing dispute with France. Actually, as an interesting article by Gideon Rachman suggests this week (£), it is probably the US which is best-placed to act as some sort of mediator between the UK and France over their now constant acrimony. The same may well be true as regards UK-EU relations, and if the NIP row escalates to a UK invocation of Article 16, as many expect, I wouldn’t be surprised to see some such initiative from Joe Biden’s administration, for all that the Brexiters distrust him.
Differences and connections
However, although in both cases Brexit has thrown up new problems, they are problems of a fundamentally different sort. As regards fishing rights, the French accusation is that the UK is not sticking to what it agreed in the TCA, but not questioning the terms of what was agreed. As regards Northern Ireland, the UK accusation is, first, that the EU is sticking too rigidly to what was agreed in the NIP and, second, that the terms of what was agreed are unacceptable.
Yet despite being different in these ways, both sides see the issues as being linked. For France, and perhaps the EU, they are both examples of UK duplicity and bad faith. This may well be unfair to the UK in terms of fishing licences, but it is certainly not as regards the NIP and goes to show the high price to be paid for serial dishonesty: it completely undermines credibility.
For the UK, what is now erroneously being called ‘the punishment letter’ from Castex to the European Commission President about fishing licences is being used to suggest that the EU’s entire approach to Brexit, including the NIP, is one of seeking to punish the UK. As ever, the liar-in-chief is Boris Johnson, who said (£) that Castex was “explicitly asking for Britain to be punished for leaving the EU”. In fact, the word ‘punish’ or its cognates didn’t appear in the letter. The relevant sentence would best be translated as “It is essential to clearly show to European public opinion that respect for commitments made is non-negotiable and that there is more damage in leaving the union than in remaining there.”
As such, this is just the boilerplate EU position that it must be demonstrably better to be a member than not to be, otherwise the union, like any other, has no purpose. Actually, If anything, the EU’s conduct over the fishing row, which has been placatory and not markedly supportive of France, shows the opposite of a punitive stance to Britain.
By pretending that the letter threatens ‘punishment’, an ever-present Brexiter myth is being invoked, as when in 2017 Johnson spoke of France trying to “administer punishment beatings”. In this current invocation it uses what Castex (didn’t) say as regards fishing to bolster the longstanding falsehood that the NIP and ultimately the entire issue of the Irish border was invented by the EU to punish the UK for Brexit and that they succeeded because of the failures of Theresa May’s government. Notably this position was re-iterated in David Frost’s foreword to a Policy Exchange document on the NIP published this week.
So there is a triple lie here: a lie about what Castex said about the fishing row, a lie about the reasons for the NIP, and a lie about the implications of the fishing row letter for the NIP row. The latter lie involves an entirely opportunistic and false equivalence, in the same way as that endlessly drawn between the quickly abandoned EU proposal to invoke Article 16 over vaccines and the UK’s current threat to do so.
No need to take sides
Because of this incontinent flood of lies, there is a temptation for erstwhile remainers to ‘side with France’ in all aspects of the fisheries row. It is also tempting because the Brexiters are trying to use the row with France to drum up jingoistic support for Brexit just at the time that the economic damage of Brexit is becoming so obvious. But these are not good reasons to support France’s stance, any more than they were when some sought to defend the EU’s Article 16 foolish mis-step over vaccines in the face of the Brexiters’ lies and jingoism about that.
It is neither necessary nor right to embrace the ‘them versus us’ logic of Brexiters. The dividing line on both the fishing and the NIP issues is a clear and principled one which is solely about who is abiding by, and who is flouting, the terms of what was agreed. Being sucked into supporting France when it is not especially warranted simply plays into the hands of those Brexiters who want to paint ‘remainers’ as unpatriotic, and to use such tactics to discredit or divert attention from the follies of Brexit. It also undermines the legitimate defence of the EU’s position as regards the NIP by enabling the accusation that those who are opposed to Brexit blindly support the ‘other side’, using their stance on the fishing row as proof.
On the other hand, it is perfectly justifiable to point to the hypocrisy of the Brexiters and the government. After all, they constantly call for the EU to be ‘flexible’ in its implementation not just of the NIP but also of import controls generally (remember the outcry over the ‘ham sandwich confiscation’). So why not offer flexibility over fishing licences, especially as the row revolves around a few small boats? Equally, for all that the French threats of unilateral action were unjustified, it is rank hypocrisy for the government to be invoking respect for international law and good faith when it has shown so little of either over the NIP.
The clocks (don’t) go back
As to that, Frost continues to escalate the rhetoric, which suggests that the triggering of Article 16 is in the offing and, with that, as the Irish Taoiseach warned this week, a very serious crisis. Frost meets Maros Sefcovic today, which may yield further clues as to whether that will happen. However, as I’ve repeatedly argued, there is little point in speculating about the intentions of a government whose intentions are entirely opaque, perhaps even to itself.
That said, reports that the government plans to rig the legal advice to justify invoking Article 16 (£) are very ominous. And the Policy Exchange document Frost forwarded makes it clearer than ever that Brexiters see phase 1 of the Article 50 negotiations, in 2017, as having being pivotal (correctly, in my view, though I don’t agree with their explanation or conclusions). Equally clearly, they, and more particularly Johnson and Frost, think they can use Article 16 to re-wind the clock and have another shot at getting ‘true Brexit’.
Whatever else happens, they will fail in that. History, politics, and indeed physics, don’t work like that. As for ‘true Brexit’, it remains as elusive as ever, the fading illusion of a dwindling number of the deluded and the deranged. All we have are the realities of Brexit. These, in the form of this week’s bickering and dishonesty, have been on display to the world because of COP-26, with a cringingly ‘larky’ speech from our manifestly inadequate Prime Minister.
Imagine how different that might have been had the UK still been a leading partner within the huge EU economic and diplomatic power bloc. Or imagine if, as the Brexiters promised, the UK was striding self-confidently forward as Global Britain, admired and respected throughout the world, rather than the laughing stock Brexit has made us. Amongst the many crimes of Brexit is to have robbed us of the former possibility on the fraudulent prospectus of the latter. There’s no way to turn the clock back on that.
Notes
[1] This also means that the implied complaint in the Castex letter that Guernsey has issued no permanent licences, and therefore fewer even than the UK and Jersey, is misconceived – it is only because that point in the process hasn’t been reached, but French boats are able to fish in Guernsey waters in the meantime. This is quite different to the situation of those boats which have neither permanent nor temporary licences from Jersey.
[2] The UK government gives the figure as 98%, but this is misleading, especially in the context of this row, as it excludes the Channel Islands figures. With those taken into account the French claim of about 90% is right (in fact, it’s closer to 88% on the basis of the UK government’s statement of licences issued as at 3 November – this statement is the source of all the statistics cited in this post for licences granted other than where other links are provided).
[3] The entire situation is a complicated one because the specific fisheries dispute settlement mechanism within the TCA does allow some retaliatory measures to be taken in advance of arbitration, but with various rules and processes attached. A further complication is that some of the provisions within that specific mechanism don’t apply to the Channel Islands. And yet another complication is that the UK government seems to be envisaging a counter-action to any French actions under the general TCA disputes settlement mechanism rather than that specific to fisheries. I don’t pretend to have any expertise at all in this arcane topic but for those seeking to make sense of it there is an Institute for Government overview, a more detailed House of Commons Library briefing, and a lengthy blog post on Professor Steve Peers’ EU Law Analysis website. I’m very grateful to Professor Peers for answering my queries on this topic whilst preparing this post – all errors are of course my own.
Fishing licences row
As regards the row over licences for French boats, it is a complicated story as fishing stories always are. It is partly about the issuing of licences to fish in the 6-12 nautical mile zone by the UK generally (licences for the 12-200 mile zone are effectively granted automatically). However, the central issue relates to the large number of rejected or outstanding applications to fish in Channel Island waters, which first erupted in May. That adds another layer of complexity because of the distinctive constitutional status of the Channel Islands.
Jersey and Guernsey
The Jersey dispute arises from Brexit because the Trade and Cooperation Agreement (TCA) superseded the Anglo-French Granville Bay Agreement. The latter agreement was originally created, following numerous disputes between Jersey and France, in 1839 and was updated in 2000 with implementation in 2004. Scrapping it as part of Brexit was strongly lobbied for by the Jersey Fishermen’s Association during the TCA negotiations. Separately, the UK also chose to leave the 1964 London Fisheries Convention causing problems for fishing around Guernsey, Alderney and Sark.
As well as having that difference in historical background, the Guernsey problems have so far been quietly dealt with because its approach has been to issue interim licences until 31 October 2021, automatically renewable monthly until full new licences are issued in December to be in force from 31 January 2022 [1]. By contrast, the Jersey approach has resulted in a mixture of boats fully licensed, boats temporarily licensed until 31 January 2022, and boats which had an ‘amnesty’ until, in effect, 31 October 2021 but with no renewability unless transferred to the temporary licensing list. It is the latter boats which are at the centre of the row. This Guernsey-Jersey distinction is a niche issue, to say the least, yet it seems an important and neglected part of the story.
Bogus comparisons
At all events it is crucial to grasp that this row is primarily over licences for Jersey waters, which are issued by the Jersey government, given that central to France’s complaint is an alleged disparity between the UK’s treatment of its boats and those of other EU states. Thus Clément Beaune, France’s Minister for European Affairs, tweeted in response to David Frost that whereas about 90% of all EU licence requests had been granted by the UK [2], France had not received licences for 40% of its requests. The implication was that France was being discriminated against.
However, it was a bogus comparison because the majority (59%) of France’s ungranted licences are applications to fish in Jersey waters, and France seems to be the only EU country with boats applying for such licences (certainly, all licences so far granted by Jersey are to French boats). Moreover all of the small (under 12 metre) boats and about 80% of the large boats seeking UK (not Channel Islands) 6-12 mile licences are French. It is these smaller boats which are far more likely to have ungranted licences because they tend to lack the expensive GPS systems needed to readily provide the data required to prove they have an historical record of fishing in the relevant waters.
This means that, as a matter of simple arithmetic, France’s number and proportion of ungranted licences is bound to be far greater than any other EU country, not because it is being discriminated against but just because it is the only EU country involved in the vast majority of relevant applications (i.e. small boats in the inner zone around the UK and Jersey). It would be equally absurd to say that, because all the Jersey licences for EU boats have gone to France, it has been specially favoured! In fact, the only inter-country comparison that can be made for the applications over which the UK has discretion is between France and the other country seeking large boat licences in the UK inner zone, Belgium, which has 19% of its licences still pending (i.e. 81% granted) whereas France has only 3% pending (i.e. 97% granted).
This isn’t to say that France has no grievance at all – a key point is that had the TCA negotiations not been so truncated, at British insistence, the details of licensing data requirements for small boats could have been agreed. Nor is France behaving particularly heinously. After all, it’s hardly the only country in the world to make bellicose noises about fishing rights! But the grievance is not especially serious (although of course it matters hugely to the fishermen affected) and it’s not the grievance of discriminatory treatment claimed.
Contradictory conduct
Moreover, France’s conduct has been somewhat contradictory. On the one hand, it has been acting as if this were still an Anglo-French matter. That is despite the fact that France, like Jersey, had wanted Channel Islands fisheries to become part of the TCA - although, interestingly, during the May crisis, the French Minister of the Sea called for the Granville Bay Agreement to be reactivated and in September France called for a revival of consultative process of the old agreement. Yet, on the other hand, it has been seeking to make it a UK-EU dispute.
These are contradictory to the extent that, viewed as a UK-EU dispute, making threats of unilateral French action against British boats and imports, or raising energy supply tariffs to Jersey, is not only arguably disproportionate to the grievance but also arguably illegitimate. The UK government has suggested such action would be a breach of the TCA. The French argument is that it would be ‘retorsion’, falling outside of the Dispute Resolution Mechanisms of the TCA [3]. Yet, at the same time, French Prime Minister Jean Castex requested concerted EU action in a letter to European Commission President Ursula von der Leyen which was leaked last weekend (and of which more later).
In fact, the European Commission has been notably unwilling to ‘take France’s side’ or to escalate the row politically, perhaps recognizing that the grievance claim is rather overblown. Rather, it has acted as a broker, arranging technical meetings between British, French and Channel Island authorities. This led (unless it was a coincidence) to Jersey issuing some forty-nine further licences on Monday, and France subsequently suspending its threat of unilateral sanctions. On Thursday, Frost and Beaune met – itself perhaps slightly odd if this is seen as a UK-EU dispute – without apparent outcome but with no new flare-up of hostilities either. This isn’t the end of the story as there are still talks to come, and the new licences granted are only temporary, but as the week has gone on the row has certainly de-escalated.
Yet much damage has been done. Apart from a further deterioration in the Anglo-French relationship, Brexiters and the UK government have been all too keen to build upon the conflation of the Anglo-French and UK-EU aspects of the row to try to link it with their wider confrontational approach to Britain’s post-Brexit relations with the EU, especially as regards the NIP. So, in what was already a fraught situation, the fisheries row has exacerbated a “poisonous atmosphere” for the NIP talks (£).
Northern Ireland Protocol row
The NIP is bound up with a similarly long and far more fraught history, this time between the UK and Ireland, which is far too complex to review here. Crucially it too grows from (though does not supersede but seeks to accommodate) a situation defined by a pre-existing agreement between two member states of the EU, i.e. the 1998 Good Friday (Belfast) Agreement (GFA). Moreover, this agreement was to a large degree predicated upon both parties being member states, in that the EU single market and customs union had removed the need for an economic border between Ireland and Northern Ireland prior to the GFA and thereby created an important pre-condition for it.
So in both cases inter-governmental relationships became ameliorated by being enfolded within common membership of the EU and have been disrupted by Brexit. It’s not difficult to see how the longstanding UK-Spain dispute over Gibraltar falls into the same category, for all that it isn’t currently so fractious. The argument that the EU played a role in maintaining peace was mocked by Brexiters during the referendum campaign with the reductio ad absurdum that to point to it was to predict that Brexit would mean World War Three. But it is a fact that many longstanding disputes between member states have, at least, been de-escalated by virtue of membership of the EU.
Indeed, that’s underscored by Boris Johnson’s call upon Ursula von der Leyen to intervene in the fishing dispute with France. Actually, as an interesting article by Gideon Rachman suggests this week (£), it is probably the US which is best-placed to act as some sort of mediator between the UK and France over their now constant acrimony. The same may well be true as regards UK-EU relations, and if the NIP row escalates to a UK invocation of Article 16, as many expect, I wouldn’t be surprised to see some such initiative from Joe Biden’s administration, for all that the Brexiters distrust him.
Differences and connections
However, although in both cases Brexit has thrown up new problems, they are problems of a fundamentally different sort. As regards fishing rights, the French accusation is that the UK is not sticking to what it agreed in the TCA, but not questioning the terms of what was agreed. As regards Northern Ireland, the UK accusation is, first, that the EU is sticking too rigidly to what was agreed in the NIP and, second, that the terms of what was agreed are unacceptable.
Yet despite being different in these ways, both sides see the issues as being linked. For France, and perhaps the EU, they are both examples of UK duplicity and bad faith. This may well be unfair to the UK in terms of fishing licences, but it is certainly not as regards the NIP and goes to show the high price to be paid for serial dishonesty: it completely undermines credibility.
For the UK, what is now erroneously being called ‘the punishment letter’ from Castex to the European Commission President about fishing licences is being used to suggest that the EU’s entire approach to Brexit, including the NIP, is one of seeking to punish the UK. As ever, the liar-in-chief is Boris Johnson, who said (£) that Castex was “explicitly asking for Britain to be punished for leaving the EU”. In fact, the word ‘punish’ or its cognates didn’t appear in the letter. The relevant sentence would best be translated as “It is essential to clearly show to European public opinion that respect for commitments made is non-negotiable and that there is more damage in leaving the union than in remaining there.”
As such, this is just the boilerplate EU position that it must be demonstrably better to be a member than not to be, otherwise the union, like any other, has no purpose. Actually, If anything, the EU’s conduct over the fishing row, which has been placatory and not markedly supportive of France, shows the opposite of a punitive stance to Britain.
By pretending that the letter threatens ‘punishment’, an ever-present Brexiter myth is being invoked, as when in 2017 Johnson spoke of France trying to “administer punishment beatings”. In this current invocation it uses what Castex (didn’t) say as regards fishing to bolster the longstanding falsehood that the NIP and ultimately the entire issue of the Irish border was invented by the EU to punish the UK for Brexit and that they succeeded because of the failures of Theresa May’s government. Notably this position was re-iterated in David Frost’s foreword to a Policy Exchange document on the NIP published this week.
So there is a triple lie here: a lie about what Castex said about the fishing row, a lie about the reasons for the NIP, and a lie about the implications of the fishing row letter for the NIP row. The latter lie involves an entirely opportunistic and false equivalence, in the same way as that endlessly drawn between the quickly abandoned EU proposal to invoke Article 16 over vaccines and the UK’s current threat to do so.
No need to take sides
Because of this incontinent flood of lies, there is a temptation for erstwhile remainers to ‘side with France’ in all aspects of the fisheries row. It is also tempting because the Brexiters are trying to use the row with France to drum up jingoistic support for Brexit just at the time that the economic damage of Brexit is becoming so obvious. But these are not good reasons to support France’s stance, any more than they were when some sought to defend the EU’s Article 16 foolish mis-step over vaccines in the face of the Brexiters’ lies and jingoism about that.
It is neither necessary nor right to embrace the ‘them versus us’ logic of Brexiters. The dividing line on both the fishing and the NIP issues is a clear and principled one which is solely about who is abiding by, and who is flouting, the terms of what was agreed. Being sucked into supporting France when it is not especially warranted simply plays into the hands of those Brexiters who want to paint ‘remainers’ as unpatriotic, and to use such tactics to discredit or divert attention from the follies of Brexit. It also undermines the legitimate defence of the EU’s position as regards the NIP by enabling the accusation that those who are opposed to Brexit blindly support the ‘other side’, using their stance on the fishing row as proof.
On the other hand, it is perfectly justifiable to point to the hypocrisy of the Brexiters and the government. After all, they constantly call for the EU to be ‘flexible’ in its implementation not just of the NIP but also of import controls generally (remember the outcry over the ‘ham sandwich confiscation’). So why not offer flexibility over fishing licences, especially as the row revolves around a few small boats? Equally, for all that the French threats of unilateral action were unjustified, it is rank hypocrisy for the government to be invoking respect for international law and good faith when it has shown so little of either over the NIP.
The clocks (don’t) go back
As to that, Frost continues to escalate the rhetoric, which suggests that the triggering of Article 16 is in the offing and, with that, as the Irish Taoiseach warned this week, a very serious crisis. Frost meets Maros Sefcovic today, which may yield further clues as to whether that will happen. However, as I’ve repeatedly argued, there is little point in speculating about the intentions of a government whose intentions are entirely opaque, perhaps even to itself.
That said, reports that the government plans to rig the legal advice to justify invoking Article 16 (£) are very ominous. And the Policy Exchange document Frost forwarded makes it clearer than ever that Brexiters see phase 1 of the Article 50 negotiations, in 2017, as having being pivotal (correctly, in my view, though I don’t agree with their explanation or conclusions). Equally clearly, they, and more particularly Johnson and Frost, think they can use Article 16 to re-wind the clock and have another shot at getting ‘true Brexit’.
Whatever else happens, they will fail in that. History, politics, and indeed physics, don’t work like that. As for ‘true Brexit’, it remains as elusive as ever, the fading illusion of a dwindling number of the deluded and the deranged. All we have are the realities of Brexit. These, in the form of this week’s bickering and dishonesty, have been on display to the world because of COP-26, with a cringingly ‘larky’ speech from our manifestly inadequate Prime Minister.
Imagine how different that might have been had the UK still been a leading partner within the huge EU economic and diplomatic power bloc. Or imagine if, as the Brexiters promised, the UK was striding self-confidently forward as Global Britain, admired and respected throughout the world, rather than the laughing stock Brexit has made us. Amongst the many crimes of Brexit is to have robbed us of the former possibility on the fraudulent prospectus of the latter. There’s no way to turn the clock back on that.
Notes
[1] This also means that the implied complaint in the Castex letter that Guernsey has issued no permanent licences, and therefore fewer even than the UK and Jersey, is misconceived – it is only because that point in the process hasn’t been reached, but French boats are able to fish in Guernsey waters in the meantime. This is quite different to the situation of those boats which have neither permanent nor temporary licences from Jersey.
[2] The UK government gives the figure as 98%, but this is misleading, especially in the context of this row, as it excludes the Channel Islands figures. With those taken into account the French claim of about 90% is right (in fact, it’s closer to 88% on the basis of the UK government’s statement of licences issued as at 3 November – this statement is the source of all the statistics cited in this post for licences granted other than where other links are provided).
[3] The entire situation is a complicated one because the specific fisheries dispute settlement mechanism within the TCA does allow some retaliatory measures to be taken in advance of arbitration, but with various rules and processes attached. A further complication is that some of the provisions within that specific mechanism don’t apply to the Channel Islands. And yet another complication is that the UK government seems to be envisaging a counter-action to any French actions under the general TCA disputes settlement mechanism rather than that specific to fisheries. I don’t pretend to have any expertise at all in this arcane topic but for those seeking to make sense of it there is an Institute for Government overview, a more detailed House of Commons Library briefing, and a lengthy blog post on Professor Steve Peers’ EU Law Analysis website. I’m very grateful to Professor Peers for answering my queries on this topic whilst preparing this post – all errors are of course my own.
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