Brexit: the next phase

The main Brexit news since my last post is the announcement of an agreement about Gibraltar made between the EU, UK, Spain, and Gibraltar. Although at this stage only a political agreement, which still needs to be put into legal text and ratified, this marks a certain kind of milestone in the Brexit process, for it is the last part of the negotiations which began under the aegis of Article 50. So, combined with the recent announcements at the ‘reset Summit’, it can be seen as the end of one phase and the beginning of another.

The Rock took ages

It’s worth pausing just to reflect on that, given that it is over eight years since Article 50 was triggered by Theresa May, five and a half years since the UK left the EU, and just a few days from now it will be the ninth anniversary of the referendum itself. I am not sure who first said it (possibly Rafael Behr), but the biggest lie about Brexit, a title for which there is much competition, was that it would be quick and easy.

It is somehow fitting that Gibraltar should be the last of the ‘withdrawal issues’ to be resolved since, at the very beginning for the Article 50 process, it gave rise to a strong candidate for another much-competed for title, the maddest moment of Brexit. I am referring to the time, in April 2017, when senior Tories, including Michael Howard, talked of the possibility of going to war with Spain. This followed the publication, immediately after the UK sent the Article 50 letter, of the EU Council’s draft negotiating guidelines. As I wrote at the time, and elaborated in more detail in April 2024, when it seemed as if a deal was in the offing, this episode contained within it many lessons which have run through the entirety of the Brexit saga, like words through a stick of rock (that is the last ‘rock’ pun).

I won’t repeat that discussion here. But it is relevant to say that the terms of what have been agreed are pretty much as trailed in 2024, and not very different to the ad hoc arrangements created in 2018 and semi-formalized at the end of the transition period. So it hardly needed to take so long to deal with, because the reality is that something like what has been agreed was the only credible option, and certainly the best option for the people who live and/or work in Gibraltar.

What has been agreed?

On the central issue of contention, there will be no passport or other checks on goods and people crossing the land border between Gibraltar and Spain, but there will be dual passport controls at Gibraltar’s airport and sea port (most arrivals at the latter are from cruise ships, with passengers pre-cleared for landing).

This means that the UK/Gibraltar authorities will operate one set of checks, and the Spanish authorities will operate another set, and these latter will also be checks for Schengen Area entry/ exit. It is a situation which has been compared with the kind of dual controls operated on Eurostar services between London and Paris/ Brussels (although the mechanics will be slightly different). This means in effect, although not, according to Foreign Secretary David Lammy, in formal terms, Gibraltar will be within the Schengen travel area.

One aspect of what has been agreed is that it will be Spanish, and not EU Frontex, border staff who will be policing the Schengen checks. This had been the subject of dispute during the negotiations, and appears to be a negotiating ‘victory’ for Spain, as, under the Tory government, the UK had apparently wanted Frontex to police the controls. It is hard to see why, though. It is no different to the way that the French authorities police Schengen for Eurostar travel, and one might have thought that Tory Brexiters would prefer a national agency to an EU agency, but it may be that, on this issue, their concern was more about any implication of Spanish sovereignty over Gibraltar. In practical terms, it seems irrelevant either way.

Much of the detail of this, and the rest of the agreement, including the precise arrangements for the UK RAF and military base on Gibraltar, has yet to be disclosed (although Lammy has said there will be “zero change” as regards the military base). There will also be a ‘level playing field’ agreement, encompassing state aid, taxation, labour, environment, trade and sustainable development, anti-money laundering, transport, the rights of frontier workers and social security coordination, presumably along the lines of what is in the UK-EU Trade and Cooperation Agreement (TCA).

Those things aside, perhaps the most significant provision is that there will be an EU-Gibraltar customs union, with implications for the harmonization of duties, including on alcohol and tobacco. It is an interesting development, since, Gibraltar was not a part of the EU customs union when the UK was a member state (and therefore customs union member), so in this respect Gibraltar, uniquely amongst British territories, will become closer to the EU as a result of Brexit [1]. That is perhaps some recompense for having to endure, with Brexit, something which 96% of Gibraltarians voted against.

Sovereignty betrayed, part 94

All of this led to predictable cries of betrayal and loss of sovereignty from Brexiters, although it’s worth saying that the Conservative frontbenchers, perhaps mindful that their party was gearing up to agree something very similar last year, have so far been fairly muted in opposing it. No such constraints exist for Tory backbenchers like Mark ‘D-Day’ Francois, or for the Reform blowhards who denounced the agreement as a “surrender”, but on this occasion their position is even more convoluted than usual since they seem unsure whether what is at issue is their usual bleat about ‘surrender’ to the EU or whether it is a ‘surrender’ to Spain.

There has been some of the former, mainly in relation to the tax harmonization and eventual customs union plan. However, the main focus of Brexiter complaint has been the fact that Spain will police the airport controls, with the possibility that British citizens could be refused entry by Spanish border guards (they would, of course, have been equally, or more, outraged had the deal put EU Frontex staff in charge: we know this, because they were outraged when it was under discussion).

Actually, one thing which the official statement of the agreement makes abundantly clear is that it exists “without prejudice to the respective legal positions of Spain and the United Kingdom with regard to sovereignty and jurisdiction”. But if the Brexiters believe otherwise, then they should acknowledge that it is yet another example of how they misled British voters before the referendum.

For in May 2016 the then Foreign Secretary Philip Hammond said: “I genuinely believe that the threat of leaving the European Union is as big a threat to Gibraltar's future security and Gibraltar's future sovereignty as the more traditional threats that we routinely talk about.” The reaction from Brexiters was furious, with Liam Fox enraged that the possibility should even have been mentioned, saying: “I think there are limits to what you can and cannot say in any campaign that goes way beyond acceptable limits” [sic]. All this was reported in the Daily Express under an inevitable headline about ‘Project Fear’.

So now, in 2025, if the Brexiters are really saying that Gibraltar’s sovereignty has been undermined by Brexit, they should surely admit that Hammond was right and Fox was wrong. Alternatively, they might reflect on the way that their ideological counterparts in Spain have also reviled this week’s deal as an abject surrender of sovereignty, but on their telling it is the Spanish government which has made the surrender!

Brexitism and the Beeb

But this is to ask for consistency and self-awareness from those who can barely muster a coherent argument, or even basic knowledge of the facts. To take one example, David Bannerman, one of the most hardcore of Brexiters, fulminated that the deal violated the sovereign rights of British passport holders to live in Gibraltar all year round (since Schengen rules would not allow this). It fell to Fabian Picardo, Gibraltar’s Chief Minister, to school the Tory ex-MEP that such rights had never existed. It was a reminder of the way that, even now, after all these years, some of those most committed to Brexit have so little understanding of the practicalities of what being in the EU meant.

Equally illuminating was the way that former Brexit Party MEP Lucy Harris [2] spluttered about the deal having “sold off” Gibraltar and being “anti-British” before eventually settling on it being “anti-democratic”. This, she argued, was because the people of Gibraltar hadn’t been consulted, and because it “insulted” them and also “Brexit voters, northern voters of this country” (the country she presumably meant, in a rather ‘anti-British’ usage, being England). That was a strange juxtaposition, since it is not obvious how something can insult both those who voted to remain and those who voted to leave, and of course the deal is very much what Gibraltarians have been wanting for years (and was negotiated, and will be subject to ratification, by their elected representatives).

Harris’s comments would hardly be worth dwelling on – and, like her fellow Brexiters, she does not have any practical alternatives to the agreement – except that they illustrate how, even as the last part of the UK’s withdrawal from the EU is laid to rest, the ‘Brexitism’ it spawned is more vibrant than ever. There is now an almost literally endless supply of Brexiters – low-grade, if you like, but, still, as in this example, appearing on flagship current affairs shows on the BBC and other major news outlets – who are able to do little more than spout slogans.

In the case of the BBC, especially, I suspect it is because they have been so cowed by populist attacks that they feel obliged to give representation to a position that has so few elected representatives that they have to fall back on people like Harris. This forces others (including BBC journalists themselves) to respond as if engaging with serious comment, and as a consequence political discourse as a whole becomes framed by Brexitist talking points. And whilst the BBC is not the only culprit, it is, by virtue of its position, undoubtedly the key media institution influencing that discursive framing.

A new phase in the Brexit process

Whilst the Gibraltar announcement can be seen as the last moment of the Article 50 process, it can also be understood as part of the beginning of the reset process. As I mentioned in a recent post, there had been reports that a deal over Gibraltar would be a precondition for any reset deal to be announced at the UK-EU Summit in May. As it turned out, the Summit produced an agreement (of sorts) in advance of the Gibraltar announcement, but it is hard to believe there was no linkage between the two. That is to say, the Gibraltar agreement was almost certainly anticipated at the time of the Summit and/or had it subsequently failed the materialize then the potential deals envisaged by the Summit would have been unlikely to progress.

Indeed there is a wider point here. The first substantive paragraph of the Joint Statement of the Summit affirmed that in announcing their new “strategic partnership” the UK and the EU “agreed this would build on the stable foundation for our relationship set by the Withdrawal Agreement, including the Windsor Framework, and the Trade and Cooperation Agreement, and reaffirmed our commitment to their full, timely and faithful implementation.” In other words, there is a clear sense, and a clear expectation, that the reset is contingent upon delivering the original withdrawal terms. That should now be taken to include the belated completion of those terms by the finalisation of the Gibraltar agreement.

This presumably has the potential to be at least a background feature of negotiations about the various potential reset deals, such as an SPS deal, in that they would be likely to be jeopardised by any actual or perceived failure of the UK to implement existing the existing agreements. That might include issues such as failing to honour the level playing field commitments of the TCA, for example over state aid, failing to fully implement the Windsor Framework version of the Northern Ireland Protocol, or failing to operate the EU Settled Status Scheme arising from the Withdrawal Agreement in an effective and equitable manner. In short, we may be moving to a new phase in UK-EU relations, but it is still anchored in the previous phases, and the new phase creates a negotiating ratchet (for both the UK and the EU, but most obviously for the EU, as the UK is the demandeur) to ensure compliance with the previous agreements [3].

What the new phase will look like

Whether or not that turns out to play a part in ongoing reset negotiations, what certainly will be an issue is the extent to which the UK has already passively or actively diverged from EU regulations. It is true that, in fact, there has been relatively little regulatory divergence since Brexit, and once the Product Regulation and Metrology Bill becomes law (as it is about to) it will be easier to avoid passive divergence. However, there have been some potentially significant active divergences already, most obviously those relevant to a future SPS agreement.

One important example is the divergence in gene-editing regulations. As I discussed in a post in February 2022, when the legislation was being developed, this is a regulatory area which, although not without its critics, could justifiably be thought of as a Brexit opportunity. That legislation, which only applies to England, has now been passed, as the Genetic Technology (Precision Breeding) Act 2023 and was welcomed as “game-changing” by the John Innes Centre, a leading research centre in the area (and, somewhat less enthusiastically, by Peter Mills of the Nuffield Council on Bioethics).

This legislation explicitly moves away from the EU’s approach to Genetically Modified Organisms regulation but an additional complexity is that the EU’s approach, too, is in flux. This means that it is not, at present, knowable exactly how the UK and EU approaches will differ at the point of any SPS deal which may be done. This situation does not present insurmountable obstacles to such a deal, and Jiyeong Go and Emily Lydgate of the Centre for Inclusive Trade Policy have recently set out a much more detailed explanation of the issues, including some possible resolutions. But it is illustrative of the kind of detailed, technical practicalities which will have to be thrashed out, presumably behind closed doors, in the coming months (or even years).

A second example is animal welfare where, again, Brexit has enabled what some see as positive developments, most notably the Animal Welfare (Livestock Exports) Act 2024, banning the export of live animals (although other promised post-Brexit legislation, such as the Animal Welfare (Kept Animals) Bill 2021, was shelved). Brexiters and some animal welfare campaigners have already begun to raise concerns that such divergences from EU regulations will not survive an SPS deal. Again, this need not be an insurmountable obstacle to an SPS deal, but it shows that the negotiations will take time, and may involve political difficulties within both the UK and the EU because of the powerful interest and lobby groups with a stake in the issues. It is not just about Brexiters blindly insisting that all divergence from the EU is good, it is also about interest groups who genuinely see particular divergences as desirable.

Whilst these examples both relate to a possible SPS agreement, the underlying issue of dealing with such divergence as has already occurred will feature in any area which entails dynamic alignment of UK and EU regulations. The Summit documents suggested that these might include linking Emissions Trading Systems, and UK participation in the EU internal energy market. Although not mentioned, another area which I understand to still be on the UK government’s agenda is a linkage of the UK and EU REACH systems for chemical regulation. That has always been a sensible idea, since in substantive terms they are very similar, but it would pose, amongst other things, issues of passive divergence, for example in terms of different approaches to ‘forever chemicals’. In an interesting assessment of how the reset might now progress, former senior civil servant Sir Martin Donnelly has identified other areas where dynamic alignment might open up new cooperation. These include medical devices and pharmaceuticals and even, in what would be a rather different vein, VAT harmonization.

Whatever the scope of what is pursued, the overall point is that this emerging Brexit ‘phase’ is going to be characterised by a whole series of highly technical negotiations in various, often discrete, policy areas. Of course that was also true in previous times, but the difference now is that they will not be held within a single, even if complex, process. No doubt there will be some overall political coordination, in both the UK and the EU, but it won’t be like the Article 50 process. Nor is there likely to be the same level of media interest, and there certainly won’t be the kind of parliamentary attention (one of the criticisms, even from those who welcome it in principle, of the Gibraltar agreement is that, like post-Brexit trade deals, it will be subject to almost no parliamentary scrutiny).

So I suspect that it is going to be quite difficult to keep track of developments. It will probably require paying attention to the specialist trade media in particular sectors, and perhaps to periodic howls of rage from Brexiters when they realize what is happening (such howls should be a reminder, to ‘remainers’, that there is a genuine, if limited, anti-Brexit agenda within Labour’s policy). There will also be some specific public moments, such as future summits, meetings of the various bodies set up by the Withdrawal Agreement and the TCA, and, as regards the TCA specifically, its own scheduled operational review in 2026.

Equally, there is now much less at stake than there was. That shouldn’t be misunderstood. Things like the Gibraltar agreement certainly matter for those affected, and the various reset deals will (or might) make a real difference to those within the relevant areas. But the basic architecture of Brexit is quite clearly not going to change under this government, which will presumably last until 2028 or 2029, and the EU has no particular interest in effecting more than marginal changes. As I argued in a recent post, there won’t be another ‘reset’, just some ongoing resetting of Brexit which may see (at best) a sanding off of some its rougher edges.

Nine years on

So, with that, I am going to sign off for the summer since I don’t anticipate there being much Brexit news of note. That may turn out to be one of those predictions that looks stupid in retrospect, in which case I will post. Otherwise, I plan to resume at the beginning of September. If I am right in what I have written here about the nature of the Brexit process in this ‘new phase’ then I suspect the focus of this blog is increasingly going to become not so much Brexit – the UK leaving the EU – as the Brexitism which is one of its most significant and, in some ways, most surprising legacies.

Meanwhile, one reasonably safe prediction is that next week, when, as mentioned above, the ninth anniversary of the Brexit referendum falls, there will be a spike of commentary. Most of it will be predictable, and some of it will also be intensely irritating. I would simply suggest reading Daniel Hannan’s risible essay, penned two days before the referendum, depicting what Brexit would seem like when we reached 24 June 2025.

That, if anything, exemplifies a prediction that has turned out to look stupid. But it’s more than that. It was a prediction which was never going to come true. So my other suggestion for the anniversary is to read, if you haven’t already done so, my book Brexit Unfolded. How no one got what they wanted (and why they were never going to), the second, updated, edition of which was published in September 2023. It tells the story of what happened, starting the day after the 2016 referendum. I’m biased, of course, but I’m not entirely alone in thinking it is about the best book about Brexit.

Have a good summer, and many thanks to the many tens of thousands of you who continue to read this blog regularly. I appreciate it, especially now that there are so many other ‘content creators’ competing for your attention.

 

Notes

[1] For those who may be wondering, Gibraltar does not participate in any of the Free Trade Agreements made by the UK since Brexit, so it forming a customs union with the EU will not imply any revision to those Agreements.

[2] Harris was elected as a Brexit Party MEP in May 2019. She subsequently resigned the party Whip in December 2019 and, in January 2020, sat as a Conservative MEP until the UK left the EU at the end of that month. No doubt she has many qualities, but I don’t think it is unreasonable to say that she is not a major political figure.

[3] In case it is not obvious, I am not really suggesting that there have simply been two, neat, phases of Brexit. It would be possible to divide what has happened since 2016 into several phases, or none. But the combination of a) the Gibraltar agreement being the last of the original, Article 50, withdrawal issues; b) the near-contemporaneous announcements made at the reset Summit; and c) the way that the reset Summit formally marked how the Labour government’s approach to Brexit differs from its predecessors does constitute one way of periodizing the Brexit process to date, if only for heuristic purposes.