Friday 20 May 2022

Britain is being choked by the knotweed of Brexit lies

It is difficult to make sense of what Johnson’s Brexit government is doing, or trying to do, as regards the Northern Ireland Protocol (NIP). I discussed the background in last week’s post, much of which remains relevant, but since then there have been daily, almost hourly, contradictory signals and reports.

What has been confirmed is the recently trailed shift from threatening to invoke Article 16 of the NIP to the much more confrontational threat to pass UK legislation to supposedly unilaterally and permanently override much of the Protocol. This, in itself, is an implicit admission of the failure of the Article 16 threat tactic that has dominated the UK’s approach for well over a year. In truth, it was never viable because, whatever some Brexiters persuaded themselves to believe, it couldn’t do what they thought it would. Another delusion bites the dust, though it continues to be mentioned.

On the ‘legislation’ plan, having failed to act on the rumoured intention to include it in last week’s Queen Speech, it was then set to be announced this week by Liz Truss. This duly happened, on Tuesday, marking the end of any possibility that Truss would ‘re-set’ relations with the EU. But, again contrary to some other previous rumours, the legislation was not tabled and may not be until the summer. So there’s been some slight softening of stance over just a few days. And talks will continue with the EU, although it has previously rejected the substance of Truss’s outline proposals, and the atmosphere will be even more sour as a result of this new threat.

As presaged in my last post, this is a significant escalation but not a decisive moment. Next October is now being spoken of as the deadline for a resolution, its significance being that that is when new elections would have to be held in Northern Ireland if no government has been formed there. But we have seen such deadlines come and go before.

Meanwhile, on Monday, to coincide with a visit to Belfast, Boris Johnson published an article that was more serious and somewhat more emollient than anything he has said before, and he has generally seemed to downplay the significance of the proposed legislation, for example by referring to it as being concerned only with “some relatively minor barriers to trade”. So this seems like a ‘softer’ approach than Truss’s.

The government's tactics are as unclear as ever

Thus, beyond continuing the game of Tom Tiddler’s Ground that has been dragging on for months, it remains unclear what the government’s tactics are. Is the idea of the new threat to satisfy the DUP sufficiently for them to join the power-sharing executive in Northern Ireland? If so, it seems already to have failed since their leader, Jeffrey Donaldson, has suggested that only with the passing of the legislation will that happen.

Is the idea, as discussed in my previous post, to try to garner US support by tying this new approach so closely to upholding the Good Friday (Belfast) Agreement (GFA)? Certainly Truss made this central to her announcement, although border expert Professor Katy Hayward, writing in this morning’s Irish Times, argues strongly that the government’s present approach is actually “giving succour to those who want to destroy" the GFA. Moreover, Suella Braverman, the “stooge” Attorney General, has apparently made the “primordial significance” of the GFA key to her advice that the legislation would be legal, although several leading experts say this term is legally meaningless and that there is no hierarchy of treaties whereby the GFA would 'trump' the NIP. 

This marks a shift in tactics from early attempts to justify the UK position primarily in terms of the economic effects on Northern Ireland (presumably in part because Northern Ireland is actually doing better than the rest of the post-Brexit UK as a result of the NIP). It is also a shift from framing the legal justification in terms of the supposed priority of parliamentary sovereignty over international law in the way that Braverman absurdly advised over the Internal Market Bill (IMB).

Another possible reason for this focus on the GFA, apart from the US dimension, is illustrated by the revealing comment in an otherwise predictably fatuous article by David Davis this week (£) that it gives the UK “the moral high ground”, which I suppose is an implicit acknowledgment of the evident moral low ground of seeking to renege on an agreement the UK negotiated and signed only a couple of years ago. It is hardly compelling, though, since, like the government, it signally fails to answer the question of why the NIP is a threat to the GFA now, whereas at the time of signature Johnson declared the two agreements to be fully compatible. Nor does it explain why a consent mechanism was created, despite the opposition of unionists already being known, that didn’t require cross-community agreement which is now deemed inadequate because of … unionist opposition.

Is the idea to play ‘mind games’ with the EU to try to get maximum concessions, the kind of ‘madman’ negotiating approach which was attempted throughout both the trade negotiations and last year’s NIP negotiations? If so, the EU may have noticed that, ultimately, the government backed down on ‘no (trade) deal’, on the illegal IMB clauses, and on Article 16. But, in the nature of that approach, this time might be different. Or is the idea to present impossible demands to the EU knowing they won’t be met but then enabling the UK to scrap the NIP blaming EU intransigence? To put it another way, is the UK using madman tactics, or is It actually mad?

Do the oscillations in the ‘hardness’ of tone reflect differences within the government between, especially, Johnson and Truss, as some reports have it (£)? Or is it Johnson’s own habitual dithering? Or does it (also) reflect blowing in the winds of, on the one hand, diplomatic pressure from the US and feared economic pressures from the EU, and, on the other, of contradictory political pressures from different groups of Tory MPs? Certainly, as so often throughout these Brexit years, negotiations with the EU seem almost secondary to internal negotiations within the Tory Party.

Within that, what is the significance of David Frost’s now constant background chorus of bellicose, and often frankly silly, rhetoric both in the UK (£) and in the US? Of course it may well reflect his ambitions for new political office, despite the failures, abundantly obvious to all but himself, of his previous ministerial career. But is he, as a result, also now taking a similar role to that played over the years by Nigel Farage (now rather silent about Brexit though, tellingly, he and Frost are now cosying up), pressuring the government from the sidelines to stay true to ‘pure Brexit’?

The government’s strategy is as unclear as ever

Along with, and plainly related to, these tactical questions are the bigger, strategic questions of what the government actually wants. Sometimes, Johnson and other ministers have talked as if the entirety of the NIP, and certainly its core provision of an Irish Sea border, is unacceptable in principle, and many Brexiters have called for it to be entirely scrapped because they have never accepted the need for any border at all. Yet at other times they talk as if what is at stake is only operational reforms to the practical application of the agreed deal, albeit going beyond what the EU has offered so far. In Truss’s proposed changes, this question is fudged: she says she does not want to scrap the Protocol, whilst seeking to change the operations so drastically that, in effect, it would amount to doing so.

One problem with this lack of strategic clarity is that, if the real aim is to gain fresh concessions, it reduces the incentive for the EU to offer them: why do so, if it will just lead to the demand for even more, or if the UK isn’t really seeking concessions but an excuse to collapse the whole agreement? But if the real aim is to collapse the agreement, then for how long can it be credible to keep making threats without carrying them out?

Perhaps an even bigger problem is that, despite what Brexiters think, the EU really isn’t pre-occupied with Brexit in the way that, at times, it once was. So even if there is some cunning British negotiating strategy designed to wrongfoot Brussels, it’s more likely to irritate and exasperate than produce sleepless nights. There’s certainly no longer any great interest in accommodating UK domestic politics. That largely ended when the Withdrawal Agreement was signed. Ironically, having left the EU, Brexiters and the Brexit government spend far more time and energy thinking and talking about the EU than the EU spends on Brexit or Britain. That lack of interest, quite as much as border checks, is part and parcel of what it means to be ‘a third country’.

There can be no clarity because there is no honesty

These and related issues can be endlessly debated. But I think the key to making sense of all of them is to recognize that the government can’t be clear about what it is doing because it can’t be honest about how it got to where it is now, and can’t be honest about where it wants to get to in the future. As was always likely, the skein of contradictory lies told over the last six years is thickening and spreading so as to overwhelm the entire post-Brexit polity. So, like knotweed, it is now choking the very Brexit it created and, with that, British politics more generally. That Northern Ireland should be the most visible manifestation of this is not surprising because, certainly since the announcement of ‘hard Brexit’ by Theresa May in her January 2017 Lancaster House speech, it has been at the epicentre of these contradictory lies.

First and foremost are all the lies of the referendum campaign and since, lies about what Brexit would (or would not) mean for Northern Ireland but, more broadly, about how it would be possible to have hard Brexit and yet have frictionless trade, or have ‘the exact same benefits’ as the single market and customs union membership yet without belonging to either. Perhaps most fundamentally, the lie was the idea that the UK could leave the EU and yet, in some ways, still be treated as if it had not. The implication was that Brexit would be a fundamental change, and yet many things would remain exactly the same, or at least could do, if only the EU did not want to ‘punish’ Britain, or was not ‘sulking’ about Brexit, accusations that have become articles of faith to Brexiters (as much as, once, it was an article of faith that ‘we hold all the cards’).

Johnson was the front man for all this and his “cakeism” precisely encapsulated its central ‘out and yet keep the benefits’ dishonesty. But it’s important to understand that he was not the architect of the lies, nor by any means their sole spokesperson. These were the lies of Brexit itself, and they are why the entirety of Brexit, and not just Brexit in Northern Ireland, is failing.

Johnson’s serial dishonesty

That said, it would be politically astute, and not unfair, for the Labour Party in particular to denounce what has happened as Johnson’s Brexit. To do so would certainly be more realistic and reasonable than the present approach of barely talking about it all. For, indeed, much of the current situation does bear the imprint of Johnson’s trademark dishonesty. For it partly arises from his invariable attempts to avoid hard realities and difficult decisions by lying, which have now caught up with him, badly.

Thus the reason he can’t be clear if the strategic aim is to scrap the NIP as unacceptable in principle is because he lied to the electorate in 2019 when he told them he had negotiated a great oven-ready deal. As a result, this week, under robust questioning, he had to say that he had signed the deal but had not anticipated that the EU would implement it in the way it did. However, because he can’t be clear if his aim is to scrap the NIP, he is unable to satisfy the DUP (and other unionists parties) or the ERG because he lied to them in promising that he would do so and, at least as regards the ERG, secured their support for his deal on that basis. For them, in principle and not just in practice the NIP is unacceptable. So anything the EU might conceivably agree to will not satisfy the ERG, if only because they have become so extreme that the very fact of the EU agreeing it would be enough to damn it in their eyes. As Rafael Behr put it in a superb article this week, “there is no concession big enough, no deal good enough” for them.

Yet if Johnson could give these hardliners what they want, and somehow bamboozle voters into forgetting his electoral promises about his 2019 deal, he would face opposition from what’s left of the centrist or traditional right amongst Tory MPs. It’s clear that Theresa May – who no doubt also reflects on how Johnson’s disloyalty and dishonesty undermined her – and some other Tory MPs will oppose a move to break international law, as will many Tory Peers, just as they did the illegal clauses of the IMB. Some, it seems, may tolerate the threat (but not the passing) of legislation as a ‘negotiating ploy’ with the EU to obtain further flexibilities within the NIP, but that just brings back the same questions: is it such a ploy, or is there a real intention to unilaterally disapply the NIP? Johnson can’t tell them the truth of that, either.

The realities of power

Beyond these domestic considerations, if Johnson does satisfy the hardliners then he faces the formidable problem of EU economic power and US power full stop. Neither the old Brexit lie that ‘they need us more than we need them’, nor the wider Brexit fantasy of untrammelled national sovereignty, survive contact with the realities of those powers. As I said in my previous post, a full-on trade war is not in immediate prospect, not least as the whole process of passing, let alone using, legislation to disapply the NIP will take many months.

But there will be at least some EU retaliations if the hardline path continues, and ultimately it will become impossible to avoid the issues which in essence go right back to 2016-17 and the arguments about ‘sequencing’: the prior condition for a trade agreement with the EU was and is the Withdrawal Agreement, with its three planks of the financial settlement, citizens’ rights, and Northern Ireland. Hardline Brexiters conned themselves that there was no need to accept that, and still blame May for doing so. But the reality is that she did, and she did so because in reality she had to.

Thus, in the very final analysis, if the UK completely reneges on the NIP then the EU will, justifiably, regard the trade agreement as void, as already more than hinted at by Maros Sefcovic. Because all the Brexit lies of 2016 are still lies now. If anything, ‘German car makers’ are even less likely to care than they did in 2016, and the UK is even less well-placed to surviving ‘on WTO terms’ than it was when ‘no deal Brexit’ was in prospect. But, again, Johnson and his fellow Brexiters are not able to admit those truths, either to themselves or the electorate.

So although this will all drag on for a long time yet, what is happening is that Johnson’s reported psychological desire to be liked by everyone, his political modus operandi of telling different lies to please different audiences, his predilection to defer making decisions, and his basic ‘cakeist’ refusal to accept that decisions really need to be made are all, finally, catching up with him. You can’t fool all of the people all of the time. Now, no one believes him, and for this lack of trust, at least, Labour do seem willing to criticize Johnson’s Brexit policy. However, to re-iterate, Johnson’s dishonesty and untrustworthiness, whilst important, have exacerbated rather than created the dishonesty inherent in Brexit.

The most fundamental problem: Brexit itself

One fundamental part of that dishonesty is the avoidance of the paradoxical question: how can you have a border without having a border? That question is central to the running sore of the NIP, but is also implicated in the knots the government is tied in over EU-GB import controls over conformity assessment marking, and over regulatory duplication/ divergence (£)*. Of course one might say that resolving irreconcilable, or even just bitterly contested, issues is the stuff of politics. The peace process and GFA actually provides a good example. However, the politics of Brexit never even attempted the kind of process in which irreconcilabilities and bitter oppositions could be fudged into some kind of workable, durable consensus.

That would have entailed acknowledging the closeness of the vote, the variety of views amongst Brexiters about how it should be done, and the fact that two out of the four nations had voted to remain, as well as the implications for the GFA. This may seem like pointless jobbing back, but it’s crucial to understand that it lies at the heart of the rolling political crisis we have been in since 2016. And the reason is precisely because the realities and the various trade-offs were never honestly admitted, and, worse, that even to try to do so was dishonestly dismissed as undemocratic. That honesty still eludes the British polity, whilst the dishonesty still haunts it.

It has recently become fashionable to say that May’s deal did, if belatedly, face up to the realities and trade-offs but this isn’t really true, or at best it’s only partially true. It is the case that her backstop did so, but the deal was still dishonest because it pretended that this backstop might never need to be used if the subsequent trade agreement was sufficiently deep, or if ‘alternative arrangements’ that would enable a fully open border were to be developed. However, since leaving both the single market and customs union were already red lines, there was no prospect at all of the future trade agreement avoiding the backstop whilst – as realists always said, and has been seen subsequently to be true – there are no ‘alternative arrangements’ sufficient to have replaced the backstop.

If May’s deal is considered honest, it is only by comparison with the infinitely more dishonest deal that Johnson did. But both were dishonest to a degree. May’s by agreeing to what was ostensibly a temporary ‘backstop’ but was actually a permanent ‘frontstop’; Johnson’s by agreeing to what was actually a permanent ‘frontstop’ whilst intending to treat it as a temporary bridge to a much more minimal, or non-existent, border.

A polity choked by lies

The reality is that the only way Brexit could fully be squared with the Northern Ireland situation (and also the only way it could be done without huge economic costs) was through single market membership (perhaps via EFTA) along with a UK-EU customs treaty. Alternatively, within hard Brexit, a deeper trade agreement would – and still could – have allowed a thinner Irish Sea border (and a thinner GB-EU border generally), as would an agreement on dynamic alignment of Sanitary and Phyto-sanitary regulations. Instead of accepting these realities, Brexiters have spent six years lying that there can be a border without having a border and, unsurprisingly, failing to achieve that outcome. In the latest developments, the government is again trying to enact that lie, and it is still failing. And it will inevitably go on failing until reality is accepted (or, perhaps, until Northern Ireland leaves the UK).

The swirl of the current, sometimes confusing, events only postpones facing up to reality, and leaves the country in the limbo which, in one form or another, we have been in since 2016. And it is not cost-free. The general economic damage of hard Brexit is now self-evident except to those who will always deny it. This latest NIP row is also economically damaging, especially to investment (a country on course to a possible trade war with its biggest trade partner isn’t very attractive), as well as being damaging to the fabric of Northern Irish society. It is also damaging to the UK’s international reputation even to be making, yet again, these threats to international law and it is obviously damaging to the UK’s strategic interests in strong, harmonious relationships with the EU and US, especially given the Ukraine war.

But our politics is stuck. It can neither admit reality but nor can it entirely deny it. The consequences of Brexit, including for Northern Ireland, are undeniable. Yet their causes, namely the lies inherent in Brexit, are barely discussable, at least in England. The Tories are too invested in Brexit to be honest about it, and Labour are too scared by Brexit to be vocal about it. So we stagger on, choked by the same old lies, and daily adding new ones, a spreading knotweed first suffocating all other plants in the garden and then undermining the very foundations of the country that used to be our home.


*These are all ultimately border questions because hard Brexit has created both a regulatory and a customs border with the EU, so even if not necessarily about what happens ‘at the border’ they all relate to the territory over or within which something (e.g. regulation, conformity assessment, data sharing, tariffs, origin of goods components, recognition of qualifications, validity of passports) applies or happens.

Due to other commitments, I don’t expect to have time to post again until Friday 10 June.

Friday 13 May 2022

For all the bluster, Johnson and the Brexiters still have no realistic answer to the 'Northern Ireland border' question

Last weekend’s results of the Northern Ireland Assembly (NIA) elections marked a significant moment both in the history of Northern Ireland and also in the Brexit process. That does not mean, as the front-page headline of last weekend’s Sunday Times had it – in line with many other reactions – that Sinn Fein’s victory “reignites Brexit tensions”. In fact, it is almost the other way around. The election result, with all the tensions it brings for Northern Ireland, is the latest manifestation of the ongoing fallout of Brexit. Just as Brexit is causing a ‘slow puncture’ of the economy, so is it gradually, and not always predictably, shifting the tectonic plates of politics. That is most evident in Northern Ireland.

The problem is Brexit

To say this was all but inevitable is not the wisdom of hindsight. In June 2016, two weeks before the referendum, former British Prime Ministers Tony Blair and John Major spoke at a joint event in Londonderry/Derry, and Major’s words captured exactly what Brexit would mean: “All the pieces of the peace process jigsaw would be thrown into the air and no one knows where those pieces would land”. It was prophetic both in the certainty of the disruption it predicted, and the uncertainty of how that would play out. Meanwhile, Blair pointed out the core issue, which has been present ever since, namely that border checks would be needed either between Ireland and Northern Ireland, or between Northern Ireland and Great Britain.

Needless to say, their warnings were derided by the Brexiters, none more so than those of the DUP. Nigel Dodds, then the Deputy Leader, called it “irresponsible nonsense” that was “dangerous and destabilizing”. Similarly, the then DUP Leader and First Minister Arlene Foster called the ex-PMs’ intervention “disgraceful” and then Northern Ireland Secretary and keen Brexiter Theresa Villiers said it was “highly irresponsible”. These condemnations were wrong then, and it is even more obvious now that Blair and Major were right.

Roll forward to 2019, when Boris Johnson came up with what he was to call his ‘oven ready deal’, and a great triumph for the negotiations led by David Frost, of which the key new element was a Northern Ireland Protocol (NIP) that created an Irish Sea border. Once again Blair and Major warned of its destabilizing effects on the peace process, and that it would divide the United Kingdom. This time round, the DUP agreed. Yet David Trimble, the former leader of the Ulster Unionists, who had played a key role in the Good Friday (Belfast) Agreement (GFA), pronounced Johnson’s deal “a great step forward” that was “within the spirit” of that agreement (he has since changed his mind). Crucially, in the House of Commons Johnson said his deal was “fully compatible with the GFA”.

Since then, what was already set to be a debacle has been worsened by the fact that Johnson’s government doesn’t accept the deal it agreed. Indeed, almost from the day Johnson signed up to it he and other Ministers denied that it entailed any sea border checks and, when that became impossible to deny, refused to implement key parts of the NIP and insisted that it must be, at the very least, substantially re-negotiated. Meanwhile, the DUP (and other unionist parties) want it to be scrapped altogether and for that reason will not participate in the power-sharing executive, making devolved administration impossible.

Bogus arguments about the GFA

There’s obviously much more that could be said about this back history (see, for example, Tony Connelly’s recent blog) but just from what I’ve provided here it’s obvious that the NIA election result represent an outgrowth of what Brexit set in train. It seems clear that the British government will now seek to use this result to re-intensify demands on the EU to change the NIP and, even, to threaten to change it unilaterally in defiance of international law. As this happens, it is important to recall that a majority of the seats in the NIA are held by parties which support the NIP, and also that the most recent opinion polls show that the NIP has the support of the majority of the people of Northern Ireland (Brexit itself, of course, did not have majority support there). That isn’t to deny that there is significant, deeply-felt and, indeed, justifiable opposition to it, which is putting significant strains on the GFA, but Brexit, and especially hard Brexit, meant that would be true under any arrangement – that was the whole point of the Blair-Major 2016 warnings.

The opposition to the particular arrangement Johnson agreed to inevitably comes (mainly) from unionists but, again, he was warned of that at the time and went ahead. It is that which gives the lie to the government’s current posture that the NIP has to be reformed in order to uphold the GFA. It always knew that the DUP and other unionists were opposed to it, but signed anyway. Why, if it is incompatible with the GFA?  It simply makes no sense now to claim that to be compatible with the GFA it must have the consent of both communities. Indeed in the very same passage that Johnson declared in the Commons that the NIP was fully compatible with the GFA, he criticised the idea “that it is thought necessary for one side or the other in the debate in Northern Ireland to have a veto on those arrangements” (i.e. the NIP) and said that the Brexit referendum itself mandated them. The consent mechanism was and is a majority vote in the NIA rather than a cross-community mechanism and, as the current situation shows, there is no automatic unionist majority in the NIA.

Nor can the justification be that the government didn’t understand what the NIP would mean in practice, and so it was only when its measures came into force that it realized it ‘violated’ the GFA. For one thing, the details of exactly what it would mean were spelt out at the time in the government’s own impact assessment of the Withdrawal Agreement, including the NIP. For another, the government was denying the meaning of what it signed and planning to avoid what was entailed within days of signing the Withdrawal Agreement with the EU, long before it came into operation. That is further illustrated by the fact that the initial extensions of the grace periods on some checks were agreed in order to allow businesses to prepare for them. Why do so if the checks were in principle incompatible with the GFA? Moreover, attempts by Brexiters to have the NIP declared legally incompatible with the GFA have twice failed in the courts (there is an appeal to the Supreme Court under way).

The politics of the phrase “in all of its dimensions”

In fact, the government’s reason for invoking the GFA is a geo-political one. It has been emphasised primarily because, at least since the election of Joe Biden, it has been made abundantly clear that the US will not countenance changes to the NIP unless they are agreed by both the EU and the UK, with the reason given invariably being the need to uphold the GFA. As a result, since at least March 2021, when the then Foreign Secretary Dominic Raab visited the US, the UK government has been pushing the line that its objections to the NIP are, indeed, that it undermines the GFA (for more detail, see my blog from that time). This remains the line being taken now, in Conor Burns visit to the US this week.

The ‘code’ that has emerged for this is for the government to speak of “upholding the GFA in all of its dimensions”. Apparently anodyne, it is meant to suggest that whilst accepting there can be no land border the UK also rejects a sea border, implying it is the EU’s insistence on this that undermines the GFA whereas, in fact, it was the UK’s preferred approach, to which the EU agreed. The idea, absurd as it seems, appears to be that this formulation will lead the US to support the UK as it, too, supports the GFA and that Biden and other US politicians will somehow not notice this linguistic trick to get out of the NIP. As diplomatic manoeuvres go, this one would be transparent to a gullible and not especially attentive five-year old.

It is in this context that the superficially rather bland official response from the US to the NIA elections should be read. In emphasising the importance of re-establishing the power-sharing executive as a core part of the GFA it implied a desire for the DUP – the only stumbling block to this outcome – to do so. Equally important is what it did not say and, in particular, the fact there is no mention of either the NIP or the EU. That doesn’t preclude US support for further changes to the way the NIP is implemented but the fundamental political reality is that the US, certainly under Biden, will never support the UK against the EU in this matter, and in particular will not do so against Ireland. Moreover, as the EU has shown consistently since 2016, it, too, will not accept anything that Ireland does not accept.

This therefore means that there is no possibility of the UK resolving the NIP unilaterally or not, at least, without becoming something close to being a pariah state. That is not changed by the Ukraine War, as some Brexiters imagine, partly because, whilst important, the UK isn’t a big enough player as regards the war, and partly because, if anything, the war makes both the US and the EU even keener to uphold the rules-based international order, which means sticking to international agreements. Already this week Biden has warned the UK not to act unilaterally, as has the Irish Taoiseach, and Maros Sefcovic re-emphasised that any changes will have to be bi-laterally agreed with the EU within the overall framework of the NIP.

In that respect, the EU has already made substantial concessions to the UK, most especially as regards securing supplies of medicines to Northern Ireland, which the UK has this week again rejected. It’s possible that even greater concessions could have been made had the UK government not squandered all trust through its conduct since, at least, David Davis disowning the phase 1 agreement within days of it having been reached in December 2017. The subsequent threats to illegally break the NIP and the extension of the grace periods without agreement made things even worse. The consequence is that the EU has good reason to suppose that, under cover of being trusted with even greater flexibilities, what the UK would actually do would be to cease to operate any border at all.

The same old question: where’s the border?

And that is what the EU won’t give up on, because it can’t. There has to be a border. This is something which the Brexit Ultras have never been able to understand or accept, even though it is the inevitable consequence of their own desire to leave the single market and customs union. That is: they want to have a different regulatory and tariff regime to that of the EU. Fine - but where, then, does this regime begin and end? The answer can only be at a border. But there is no place to put this border as regards Northern Ireland which is politically acceptable to everyone involved. This is exactly where the “in all of its dimensions” formulation falls apart if it is taken to mean neither a land border nor a sea border. For, in that case, where is the border to be?

The UK government still has no realistic solution to this, after years of trying to find one, for a very good reason: there is no solution. Brexiters went all around the houses trying to find ‘technological solutions’ to having an Irish land border and they did not materialise because, as Sabine Weyand, then the EU’s Deputy Chief Brexit negotiator, pithily observed in 2019 “they do not exist”. If further evidence is needed, it is that if they existed then they could be used to do away with the sea border, but they haven’t been.

Indeed, the failure to create a seamless sea border through technology amply justifies why the EU insisted in Theresa May’s Withdrawal Agreement that a ‘backstop’ be in place unless or until such technological solutions were available for the land border. Brexiters rejected May’s deal because, despite their claims to the contrary, they knew that there were no such solutions and therefore knew that the backstop would very likely end up being permanent. Their ‘solution’ became the ‘frontstop’ of the sea border that they never truly accepted and now disown.

Now the ‘solution’ has become, rather like the non-introduction of UK import controls, simply to act as if Brexit hadn’t happened and not to have a Northern Ireland border at all. Both are unsustainable in the long term, not just because of the EU’s need to maintain the integrity of its market but because, as Brexiters seem incapable of grasping, because of the UK’s need to maintain the integrity of its market. In any case, the decision about the Irish Sea border (unlike import controls) is not a domestic one, precisely because the government signed an international treaty which created it. This bad faith, and all that has flowed from it, is the not very heavily disguised sub-text of the EU chief negotiator Maros Sefcovic’s call on the UK, following the NIA election results, to “be honest” about the NIP.

What will the UK government do now?

There is little sign that the UK government will heed this call. It’s true that this week, after meeting the party leaders in Northern Ireland, Brandon Lewis put out a statement calling for all the parties to participate in the devolved institutions, and noting that negotiations with the EU over the NIP were the responsibility of the UK government and shouldn’t preclude that participation. So that was a clear reproof to the DUP for its refusal to do so until the NIP had been completely re-negotiated (and, in effect, scrapped).

Beyond that, however, government policy remains opaque. For well over a year it has been threatening the use of Article 16 and, more recently, that has morphed into the threat to unilaterally disapply much or all of the NIP by changing UK law. Most recently, it was rumoured that a Bill to do just that would feature in the Queen’s Speech on Tuesday of this week, but it did not. Yet, on the same day, it was reported that ‘next week’ Liz Truss will produce such a Bill, with the support of the Prime Minister. As noted above, this has already produced a flurry of warnings from the US, EU and Ireland, as well as the decision to send a heavyweight delegation from the US Congress to London and probably a special envoy from the US President to Northern Ireland.

At a certain point – perhaps already reached or passed – this posturing of endless threats with no action becomes laughable. Presumably it reflects sharp divisions within the government about how to proceed and, almost certainly, Johnson’s own indecisiveness. After all, one of the reasons behind Frost’s resignation was supposedly that Johnson had backtracked on using Article 16. Yet the subsequent idea of unilateral disapplication, which he apparently now supports, is far more extreme.

If this threatened legislation is announced, as now looks very likely, it would be a significant escalation, damaging to relations with both the EU and the US. However it’s important to understand that it still won’t be a decisive moment. It will take time for any legislation to pass, and when it is passed there’s likely to be a (long?) period in which Johnson threatens but does not necessarily invoke its provisions. In the meantime, the EU is likely to take some action – perhaps re-starting the legal cases over the grace period extensions, amongst other things – but negotiations are likely to continue, and I think an immediate full-on trade war is unlikely despite what some reports suggest (£). So the same dynamic of threats and possible backdowns of the last year or so will continue, albeit in an even more sour atmosphere.

It is obvious that the underlying issue is that which has dogged the entire Brexit process, namely the unresolvable political problem of the ERG and like-minded MPs. They will never willingly accept the realities of what Brexit means for, in this case, Northern Ireland and they are too strong simply to be told to do so. Thus, instead, the government keeps trying to appease them with threats of action against the EU, but can’t ultimately buck the realities. The result is this enduring limbo in which, if there is any discernible policy, it is the asinine one that if enough time passes then ‘something will turn up’. It’s even just about conceivable that we end up in the extraordinary situation where, in 2024 when the consent vote is due, the NIA endorses the continuation of the NIP whilst the UK government still insists it must be virtually scrapped.

There is a way forward

The strangest part of all this is that whilst, given Brexit, there is no truly satisfactory solution, there is a relatively simple way forward, which is compatible with the NIP and has been offered by the EU. It is for a UK-EU ‘Swiss-style’ Veterinary Agreement on Sanitary and Phyto-Sanitary (SPS) regulations, which would massively reduce the border checks needed between Great Britain and Northern Ireland (and, indeed, between GB and the EU). It’s true that this wouldn’t overcome the most hard-line Unionist objection to having any sea border at all, although the DUP actually advocated it at one stage, and it would surely bring things to the situation that David Trimble accepted to be in the “spirit of the GFA” (because that situation had included a sea border), and offer unionists a reasonable accommodation of their grievances.

So what is the obstacle to this approach? In the first instance, the answer is the ludicrous obsession of Johnson and Frost with ‘sovereignty’ at all costs, making May’s hard Brexit of leaving both single market and customs union even ‘harder’ by refusing all forms of regulatory alignment. This meant that even though, in practice, UK and EU SPS standards were the same, the UK would not commit to their continuing alignment. So, for the entirely dogmatic reason that the UK ‘could’ change standards if it wanted, even if in practice it didn’t want or need to, the EU’s offer of an SPS agreement was rejected.

To the extent this had any rational basis (not that it was strong), it was that a future trade deal with the US might or would require SPS divergence from the EU. But, leaving aside the contentiousness of that, there is currently no prospect at all of a US-UK trade deal, and were one ever to emerge then the UK could at that point diverge (with the consequence of re-instating SPS checks, of course) because the EU have said that an alignment deal could be temporary.

A government that can’t get real

At some point Brexit Britain needs – or ought – to get real about Brexit as a whole and especially about the NIP. That would mean, first, disavowing all of the nonsense still being peddled about it by the Brexit commentariat, egregious examples this week being Daniel Hannan’s frankly childish and factually flawed diatribe against EU ‘vindictiveness’, and a similarly unhinged analysis from Allister Heath (£).  It would mean ignoring David Frost’s now weekly outpourings (£) mis-explaining why he agreed the NIP along with increasingly idiotic proposals for how it should be scrapped. It would mean ignoring the likes of Rees-Mogg regurgitating the updated version of ‘they need us more than we need them’. And it would certainly mean replacing Suella Braverman with a better-qualified Attorney-General rather than following her patently dud legal advice. Probably anyone who had studied law for five minutes at the University of Wikipedia would be an improvement.

Collectively, these and similar people seem intent on repeating all their mistakes of the last six years, only this time worse. They have self-evidently failed, as some of them half-admit.

Fundamentally, getting real would mean recognizing that the core problem isn’t the NIP, still less the NIA election results, but Brexit itself. And whilst it is certainly too much to expect this government to undo that, they ought at least to take responsibility for having made things worse by the insanely dogmatic form of Brexit they insisted on. However, precisely because of the internal politics of the Tory Party, that is very unlikely to happen. A few years ago, something like SPS alignment would not necessarily have been impossible to get the ERG to accept but, now, having been appeased at every turn, they would certainly regard it as unacceptable backsliding.

The consequence is either the continuation of something like the present impasse, with Northern Irish politics paying an especially heavy price, or the government finally carrying out its threats to renege on the NIP, for which we will all pay a heavy price. Not least of those prices is the sheer shame many of us feel for having a government so morally and intellectually bankrupt that these are the only scenarios in realistic prospect.

Friday 6 May 2022

Brexiters are losing the post-Brexit narrative

A few weeks ago I wrote about what seemed to be an emergent ‘admission-yet-denial’ phenomenon amongst Brexiters. It was prompted by Rishi Sunak’s remark that the damage done by Brexit to trade with the EU was “inevitable”, whilst simultaneously brushing it aside as if unimportant. This phenomenon is also illustrated by recent statements from Jacob Rees-Mogg and David Frost, and, taken with other developments, it denotes an important stage in the failure of the Brexiters’ project.

Rees-Mogg’s banjaxed border

As regards Rees-Mogg, in my last post I mentioned without much discussion his confirmation that the introduction of import controls would, yet again, be delayed.  It deserves more comment, because it marks not just a further postponement but the first clear indication that the government will never implement controls to the full extent that the EU has on imports from the UK. Like Sunak’s remark, this entails an admission of just how costly the terms of trade agreed under the Trade and Cooperation Agreement (TCA) really are, yet without any corresponding acknowledgement that the TCA, and Brexit in general, are at fault.

This was made explicit by Rees-Mogg in talking about the costs of import controls to businesses and consumers. Whilst suggesting that because of the general economic situation now was the wrong time to introduce these new costs, the timing is irrelevant to the fact that the controls are indeed costly, to the extent of £1 billion annually. Similarly, his idea that it is a tribute to Brexit that the UK’s import controls need not be as extensive as the EU’s was an implicit admission of the costliness of EU import controls to British exporters. These and the many other costs of post-Brexit trade are quite as much “an act of self-harm” as the import controls that Rees-Mogg described in just those words.  

It remains to be seen just how much it is going to cost to introduce the supposed new high-tech systems that are going to create what the government claims will be the UK’s world-leading border. It also remains to be seen whether this will be introduced on time – or, much more likely, for how long it will be delayed – and whether it will be functional. Rees-Mogg’s latest announcement specified the end of 2023 for the ‘Target Operating Model’, with 2025 already set for the implementation of the full Border strategy. The track record of such IT projects in general is hardly an encouraging one, and especially discouraging is the post-Brexit Goods Vehicle Movement Service (GVMS) which has experienced repeated outages, including that which contributed to the huge Easter queues at Dover and other ports.

I’ve written several times before about the costs and risks of delaying import controls, and these will grow the longer it is before the Target Operating Model is in place. The dangers of this latest delay in terms of animal health and food safety are especially acute, as farming and veterinary groups have pointed out. Moreover, given that it now seems the government will never introduce all the physical controls originally envisaged, the money already spent by ports on preparations has been wasted, which may give rise to compensation claims (£).

These delays and changes of plan also tacitly admit another aspect of how badly the government has handled Brexit. For as well as involving an admission of the costs of the TCA, they show the incredible foolishness of not extending the transition period so as to allow time to put the new controls in place, as well as to enable businesses to prepare. For example, of the Border Control Posts required under the original Border Operating Model (now, apparently, abandoned), almost 90% were yet to be constructed and/or approved by the time Rees-Mogg made his announcement. It’s therefore worth recalling the history of the transition period both because it partly explains the current situation and because it illustrates how, like so many other things now happening, the roots lie deep in the entire Brexit process. To restrict the length of this post, I’ve written this history as a separate page. Of note within it is the role played by Rees-Mogg himself in strongly opposing having any transition period at all, not that he now takes any responsibility for the consequences.

Frost’s bizarre mental legerdemain

This brings us to another prime example of the admission-yet-denial phenomenon, as well as of refusal to take responsibility for failure, in the form of the increasingly bizarre outpourings of David Frost. Frost, placed in the House of Lords in order to be Brexit Secretary, renounced that role last December but still uses the platform it gave him in order to pontificate about how the job he no longer wants should be done.

Last weekend, in a strange attack on Peter Foster, the senior Financial Times and former Daily Telegraph journalist whose coverage of Brexit has been consistently excellent, suggesting that commentators had been consistently wrong in their predictions, Frost tweeted:

“'You will never get rid of the backstop': Done

'An FTA will take many years to do': Done in ten months.

'You'll never reach an FTA without the ECJ': we did.

'You can't leave the transition period at end-2020': we did.

'The French will retaliate over fishing': they didn't.”

Jumping to the fourth of these, as I’ve just mentioned, leaving the transition period at the end of 2020 created multiple problems. But no one said the UK “can’t” leave it then, just that it would be extremely foolish and damaging. So it has proved. On the fifth of them, Frost can surely not have missed the fact that relations with the France over fishing rights have hardly been smooth but, in any case, the fishing industry believes it has been betrayed by the deal to the benefit of the French.

Frost’s FTA boasts

Then there are the remarks about the Free Trade Agreement (FTA). It’s quite true that most commentators thought it would take much longer to complete. That was partly because it wasn’t clear until the last minute whether EU law would require it to be ratified as a ‘mixed agreement’ by each individual member state or, as it turned out, treated as an EU-only agreement – so it wasn’t some indication of Frost’s negotiating wizardry. It was also because few anticipated that the UK would, under Frost’s negotiation, only want such an unambitious deal. So unambitious, in fact, that trade experts say it could have been done even more quickly than it was. In effect, it amounts to a tariff-free deal on goods, subject to rules of origin, with little on services or the removal of non-tariff barriers (NTBs) such as conformity assessment.

That this thinnish deal is seen as a great achievement by Brexiters reflects their outmoded pre-occupation with tariffs and goods trade. More specifically, it is a reflection of Frost’s own completely arbitrary claim that existing studies “exaggerate the impact of non-tariff barriers [and] they exaggerate customs costs”. Since these studies are un-named, it’s not possible to evaluate that claim, but Frost’s propensity to downplay them helps explain why the deal he negotiated is proving to be so poor for businesses now experiencing precisely the impact of NTBs and of customs costs. To put it bluntly: he guessed, in defiance of the evidence and to justify his approach, and he guessed wrong.

This is also a reason why his comment about the FTA confounding predictions of ECJ involvement is off-beam. So far as I can recall about the only person making that prediction was Nigel Farage, and it was false. An FTA, as opposed to a Withdrawal Agreement, without any ECJ role was always perfectly possible. But what that would and did preclude was any substantial removal of NTBs or liberalisation of services trade, which generally require some form of trans-national regulatory and legal oversight, and for trade with the EU could only mean some ECJ involvement. That was the price of prioritising ‘sovereignty’. So, as with the speed of the deal, its avoidance of the ECJ is a sign of how much less extensive his FTA was compared with, especially, having the “exact same benefits” as the single market and customs union or even the ‘deep and special partnership’ that had once been mooted. Hence Frost’s boasts are both an admission and a denial of his own, and Brexit’s, failure.

Frost’s backstop boast

But the most extraordinary item on Frost’s list is the first. Again, it contains at least a half-truth. It was widely predicted that it would be impossible to get rid of the backstop, because the EU had said it would not re-negotiate the Withdrawal Agreement (WA) it had drafted with Theresa May’s government. But this didn’t preclude doing what Johnson and Frost did, which was to resurrect, effectively, a version of the old phase 1 agreement on an Irish Sea Border – rejected by May as “something no British Prime Minister could agree to” – and implanting it not as a backstop (i.e. a fall back), but as a frontstop (i.e. from the outset) in their WA. Doing so didn’t confound predictions that the backstop could be disposed of, it simply dropped the very concession that May had obtained from the EU.

More to the point, it is precisely what he and Johnson agreed to replace the backstop which Frost has, ever since and with ever-increasing volume, been denouncing as an unworkable agreement, made only because the “Surrender Act” – as, putridly, he still insists on calling the Benn Act – tied the government’s hands, and which he says must be replaced or reneged on. So it takes some feat of mental legerdemain for him to also claim the removal of the backstop as a triumph that confounds his critics. It is as if we are expected to forget Frost’s role in creating the present situation or, more accurately, to accept his bowdlerized and self-serving account of it.

A pattern of admission and denial

The pattern, then, is clear. Both Rees-Mogg and Frost implicitly or explicitly admit to the failures of the Brexit they agreed or supported, whilst denying or ignoring that the cause is the Brexit they agreed or supported. And of course the same is true for all those MPs in the Tory Party, from Johnson downwards, and those MEPs in the Brexit Party, who signed or voted for agreements the effects of which, whether as regards import controls, the Irish Sea border, or the fishing deal, they now disown or seek to circumvent.

As Jonathan Freedland, one of the few high-profile commentators to pick up on the full significance of Rees-Mogg’s import controls announcement put it, “in the long history of Britain’s needless, pointless departure from the EU, Rees-Mogg’s admission should count as a milestone”. Should, certainly, but probably won’t because both his and Frost’s admissions are accompanied by deceit and denial about the causes of what they bemoan. Like alcoholics hiding the empty bottles and gargling extra-strong mouthwash, they hope that no one will notice their shaking hands and vomit-flecked clothes, or remember last night’s maudlin promises, lecherous advances and aggressive diatribes.

Strawmen, sophistry and sneers

Meanwhile, a different but hardly more endearing tactic is increasingly in evidence. Again, it’s one I’ve remarked on before and it takes the form of claiming Brexit to have been a success compared with predictions – usually garbled, hyperbolic versions of predictions – of the damage it would cause. Currently this is attaching itself to the UK’s response to the Ukraine War, as in a recent article in The Times by pro-Brexit columnist Iain Martin and a boorish Tweet from Conservative self-styled “pundit” Tim Montgomerie. Both position their arguments against a caricature of remainer claims that “nothing can ever go right after Brexit” (Martin) or that “Brexit Britain would be a marginal, isolated, good-for nothing (and racist obviously) country” (Montgomerie) which they then propose to have been discredited by the Ukraine War.

It would undoubtedly be possible to find someone who had at some time made these predictions about Brexit, but they don’t constitute the standard or serious anti-Brexit argument which is that it reduces British standing and influence, rather than eliminates it. But even if they did, then all that has been demonstrated by Ukraine is that Brexit has not done Britain the harm predicted, whereas it was sold on the basis that it would be of some benefit.

Perhaps realizing this, such arguments perform a sophistic pivot to imply or claim that Brexit has allowed Britain to respond to Ukraine in a way it would not otherwise have been able to. But little or nothing Britain has done required Brexit (though the idea that it has attracts some support [36%] amongst voters, especially [54%] leave voters*). Certainly sending arms and providing training, which has made a real and important difference, didn’t require leaving the EU as shown by the fact that it preceded even the vote to leave. Britain cut tariffs on imports from Ukraine unilaterally, which it couldn’t have done as an EU member, but the EU, which does far more trade with Ukraine, announced the intention to do so two days later. The UK and EU have enacted different sanctions in different ways and at different times, but as an EU member the UK could always have set its own sanctions in addition to any it participated in with the EU. And the UK response on refugees has been feeble compared with the EU, as it probably would have been anyway.

Similarly, the associated sneering at EU countries for what they have not done – especially in relation to providing arms or cutting Russian energy imports – is irrelevant, even it is fair or true, which is highly debatable, as a justification for Brexit. It seems to be based on the false premise that EU membership would only be justifiable, and/or that it was justified by remainers, if everything the EU ever does, and everything its members ever do, is beyond reproach from a British perspective. But that is a nonsensical idea. What is plainly true is that Britain no longer has any of the substantial influence it used to exert over EU policy, including, as in this case, over policy towards Russia and Ukraine. That is the loss that Brexiters were warned of.

Losing the post-Brexit narrative

So there are several strings of Brexiter argument on display at the moment. The doublethink of admitting Brexit damage but denying its cause, or boasting of supposed triumphs whilst disowning or ignoring their consequences. The negative claim that it hasn’t been as bad as some, or a caricature of some, warnings. And false claims about benefits (Ukraine being the latest, the early vaccine rollout perhaps the earliest). There are also, of course, still the flat denials of all the damaging consequences of Brexit, as there always have been.

What is striking is how convoluted some of these arguments are, and how defensive. If Brexit had been even half as successful as it was claimed it was going to be then, by now, you’d expect that to be easily demonstrable and increasingly self-evident even to those who had formerly doubted, or at least to a growing number of them. You would also expect a growing self-confidence from Brexiters so that they would feel no need to jibe – as Montgomery does – at “remoaners”. The magnanimity of victory, even though it eluded them in 2016, would by now be theirs. There would be clear signs of Brexit at least moving towards meeting the test for its success set by Frost himself, namely that by 2031 “nobody is questioning Brexit. It was self-evidently the right thing to do.”

In fact, apart from a couple of times in mid-2021, probably attributable to the government’s promulgation of the false belief that Brexit had enabled faster vaccine rollout, opinion polls since Britain left the EU have shown a clear lead of those who think in hindsight this was wrong thing to do so over those who think it was right. Over the last six months that lead has been fairly stable at about 11%-13% (the latest figures are: right 38%, wrong 49%, don’t know 12%). On the top political issue of the moment, there’s also evidence that a clear majority of both leave (57%) and remain (78%) voters think that Brexit has made the cost of living higher. This has been happening during a time when, in England at least, few national politicians have been openly criticising Brexit and when media coverage of it has been quite muted (and, perhaps for those reasons, Brexit itself is seen as a less important issue than it has ever been in recent years, whilst still ranking higher than, for example, pensions, transport, crime or education).

At the end of January 2021 I wrote a post on this blog arguing that the months to come would be crucial in shaping the post-Brexit narrative. Fifteen months on, I think it is justifiable to say that the outcome has predominantly been to frame Brexit as having been a mistake and a failure. The evidence for that is the opinion polls and also the way that, as discussed in other posts, so many Brexiters themselves now say that it has not delivered its promises. The latter, admittedly, is not quite the same as saying it is a failure, but it is a long way from a ringing endorsement. All of this is a long way from what success would look like.

Of course, the narrative is not fixed and may change. It’s clear that Johnson is trying to use the Ukraine War for that purpose (as well as for more general political advantage). It’s very possible that the government will re-ignite the row with the EU over the Northern Ireland Protocol, perhaps as early as next week, although there are somewhat contradictory reports about that (see here and here). If so, that may shift the dial by stoking anti-EU sentiment. And, as noted in that January 2021 post, unforeseen events may change the narrative in either direction. Still, it’s reasonable to think that the narrative that settled first is likely to be hard to dislodge.

What’s more, I believe that many Brexiters realise this, and it explains the increasingly convoluted and defensive postures they are adopting. This makes it all the more important to keep reminding them, and more importantly everyone who will listen, what they did and what it has led to. Eventually, doing so will have prepared the ground to do something different and better or, at the very least, it is a necessary precondition for that.



*The question asked in this survey is slightly ambiguous, though: “With the UK outside the EU, has the UK’s response to the Russian invasion of Ukraine been stronger, weaker, or similar to what it would otherwise have been?” Someone might very reasonably answer ‘stronger’, not meaning that Brexit had enabled this but that a desire to show its post-Brexit relevance had prompted the UK to respond more strongly than if it had still been a member.