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 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.
Showing posts with label Article 50. Show all posts
Showing posts with label Article 50. Show all posts
Friday, 20 June 2025
Friday, 30 July 2021
Articles of faith
In the years before the Referendum – long before this blog started, so I haven’t kept links – I quite often came across pro-leave people explaining, usually in rather lofty tones, that leaving the EU would be very simple because everything was all set out in Article 50 of the Lisbon Treaty. Prior to that, there had been no formally defined exit mechanism. Its creation had been partly as a reassurance for the countries that joined in 2004, but it had the support of what were then called Eurosceptics in the UK in the hope that, one day, it would be their portal to ‘freedom’.
Invoking Article 50
If we have learned nothing else since 2016, it is surely that Article 50 offered only the broadest of frameworks for withdrawal, and “invoking” it was only the beginning of a complex process. So having so enthusiastically lauded Article 50 as the answer to their prayers, the most committed Brexiters actually approached it in a variety of quite contradictory ways.
One, espoused by the Vote Leave campaign documents (slide 11), was to say that “we will negotiate the terms of a new deal before we start any legal process to leave”, meaning prior to invoking Article 50. This was impossible (and rejected by the EU before the Referendum votes had even been counted) and was rarely mentioned again after the Referendum result. The second, espoused from time to time by UKIP, was simply to leave without invoking Article 50 at all. This would have been perverse, since it wouldn’t have made any of the issues involved in leaving disappear, though, quite astonishingly, it seems to be what Dominic Cummings still thinks could have happened, and he also believes the EU would have entered negotiations prior to triggering Article 50.
The third, soon dominant, idea was that Article 50 should be invoked as soon as possible, and that any delay represented backsliding and was the province of the “enemies of the people”, so immediate invocation became a test of Brexit fidelity. A final idea, which for many months Theresa May’s government, including at the time Boris Johnson, appeared to believe, was that both exit and future terms could be agreed within the Article 50 period. This was simply false.
The underlying mind-set
All this is old history now, but worth recalling because it reveals a mind-set which has not gone away and which is coming to the fore again. It was evident on the many occasions in 2018 and 2019 that Brexiters – including Rees-Mogg, Farage and Johnson – talked of ‘invoking GATT Article XXIV’ as a way of, supposedly, securing a temporary trade deal even if no exit (let alone trade deal) had been done. It was nonsense and, notably, although Johnson referred to it during his campaign to be Tory leader during an excruciatingly embarrassing interview with Andrew Neil, he never mentioned it after that. But the same mind-set is on display now in the numerous calls and threats to ‘invoke Article 16’ of the Northern Ireland Protocol (NIP).
What is the mind-set? I think it has three, related, aspects. One lies in the image it conveys of the UK having unilateral control – it ‘invokes’ things and, as such, appears to be the active party without having to have regard for other players, notably the EU. The second is that, for all their supposed disdain for expertise, Brexiters are adept at using what to the general public sounds like ‘expert jargon’ which, when delivered in dismissive or authoritative terms, gives the impression of great mastery of technical detail when, in fact, none exists. Thirdly, and perhaps most importantly, it suggests that there is a quick and easy short-cut to solve complex and intractable problems.
As regards the NIP, it is now abundantly obvious that Johnson’s government also saw that as a short-cut to ‘solving’ Brexit, without understanding or caring what it meant. The same goes for the Brexiter MPs and MEPs who voted for it in the British and European parliaments, although some of them seem to have persuaded themselves, or been persuaded by others, that it would lapse once a trade agreement was reached. Hence, even now, dullards like Iain Duncan Smith say (£) that the NIP was “always seen by both sides as a temporary solution”. This is a flat-out falsehood. Unlike May’s ‘backstop’, this was a ‘frontstop’ agreement that existed permanently and independently of any trade agreement or of there being no trade agreement at all. The two were connected only to the extent that had the trade agreement been a ‘deeper’ one, then the nature of the Irish Sea border would have been correspondingly ‘thinner’ (e.g. in terms of the extensiveness of checks).
Invoking Article 16: and then what?
Whether it was always intended or only later decided that the NIP would be reneged upon, the idea that ‘invoking Article 16’ offered a way out of what had been agreed first surfaced as early as January 13 2021, when Johnson spoke of doing so in the House of Commons. That date is of note for two reasons. Firstly, because it was less than two weeks into the actual operation of the NIP, showing how early it was being threatened (and, of course, Johnson and others had denied from the outset that the NIP meant there would be an Irish Sea border). And secondly because it predates by two weeks the EU’s own short-lived and abandoned threat to invoke Article 16 over vaccine supplies, of which Brexiters and the government now make so much.
As I wrote at the time, that was a major blunder by the EU, with no justification. Even so, and apart from the fact it never happened, what it would have meant has been heavily misrepresented. It would not have meant creating an Ireland-Northern Ireland border, as some Brexiters now claim, but only that vaccines destined for Northern Ireland would never have left the factory in Belgium. Moreover, it would have been a specific measure to deal with a particular and unforeseen emergency. In this, even as a possibility, it was entirely different to the way that the Brexiters, and the government, are now talking about how the UK might try to use Article 16.
What that talk seems to suggest is that Article 16 would allow the UK unilaterally to suspend the entirety of the NIP or even unilaterally to disapply the NIP. As Professors Katy Hayward and Dave Phinnemore of Queen’s University Belfast explain, neither of these is the case. The UK would need to identify ‘serious’ problems which were ‘unexpected’ and ‘likely to persist’, and the proposed solutions, for consideration and discussion by the Joint Committee. Diversion of trade is one possible problem which might be identified – and Frost’s recent statements seem to imply it is the one upon which the UK might base an Article 16 invocation - but it can’t just be that which was to be expected because it is inherent in the agreement. It certainly isn’t the case, as, again, Iain Duncan Smith recently claimed (£), that diversion is “forbidden” by the NIP. And most certainly Article 16 isn’t a way of just saying ‘we don’t like this agreement’: its terms would continue to exist, and many of them would continue to operate.
So, rather as with invoking Article 50, it would be the beginning of a process (though not one leading to ‘exiting’ the NIP). Thus whenever invoking Article 16 is proposed, the crucial question that should be asked is: and then what? The answer, inescapably, is further negotiation with the EU, but if that has failed to give the UK the outcome it wants without using Article 16 then it is no more likely (probably less likely) having done so. So what then? Rip up the NIP entirely, with all that will mean for possible trade sanctions from the EU, and, at the very least, diplomatic rows with the US? And, still, what then?
Article 16 can’t solve the deeper problem
For the deeper problem in all this is the same one that has existed since, at least, the UK government decided in January 2017 that Brexit meant hard Brexit. If the UK is to be outside the regulatory regime of the EU single market and the tariff regime of the customs union then the UK itself needs a border just as the EU does. So where’s the border? That question has no easier answer now than it had in all the years since 2017 during which endless models were proposed. The NIP is the least-worst answer that anyone could come up with which both sides would agree to.
The recent spate of self-serving tweets from Dominic Cummings on this subject is again instructive. Although he affects disdain for the ERG, his account is precisely that which most of them have been peddling for years, namely that the Irish border issue was a minor or even non-existent one, and only achieved prominence because of the weakness and incompetence of May’s government and its acceptance of what Cummings calls the “babbling” about the Good Friday Agreement. Had what he calls “we” (apparently meaning the Vote Leave team) been in charge, the UK would just have refused to erect borders and if the EU did then so be it: the integrity of the single market was the EU’s problem, not the UK’s (he still doesn’t seem to realise that the UK needed a border as well). By the time Johnson and Cummings came to power, it was too late and what they both childishly call the ‘Surrender Act’ (meaning the Benn Act) prevented resurrecting a hardball approach, hence the NIP with its associated Irish Sea border. This, of course, rests on the preposterous idea that a no-deal Brexit, which would have damaged the UK far more than the EU, constituted negotiating leverage had the Benn Act not prevented it.
As I say, none of this is new and I’ve catalogued it as the boilerplate position of the Brexit Ultras endlessly on this blog, as well as explaining why it was unrealistic. Apart from anything else it ignores the fact that David Davis thought pretty much exactly the same things, but found that they were unworkable, including the fantasy of an Article 50 pre-negotiation, the denial of the reality of the Irish border issue, and the delusion that Ireland was only a minor player. In short, most of Cummings’s ‘hypotheticals’ are already discredited. More generally, what developed into May’s deal wasn’t a result of the Ultras’ approach not having been tried, but of it having been tried and failed. So it is only of passing interest, and no surprise, that Cummings himself has confirmed that he shares their analysis of the Brexit process and clings – in a way reminiscent of those who used to defend the USSR as not being ‘real’ Communism – to the idea that ‘it just wasn’t tried properly’.
Frost’s flawed logic
Cummings is irrelevant now, hence he has the time to re-litigate the events of the last few years in his barrage of tweets and blogs. But what remains highly relevant is that his analysis is shared by David Frost who, of course, was one of the Cummings’ group when the NIP was negotiated. Frost may not have brewed the Kool-Aid (his skills, to the extent they are discernible, appear to be emulative rather than innovative), but he certainly drank deeply from the cup. So Cummings’s statements underscore the fact that Frost, like all the Brexit Ultras, doesn’t accept the need for the NIP or the validity of the process that led to it. Moreover, it underscores his commitment to the fanciful idea that playing ‘hardball’ pays dividends – the belief, for example, that the illegal clauses in the Internal Markets Bill paved the way to a trade deal being struck (in fact, they nearly scuppered it). The corollary of that belief is a refusal to accept that the UK losing the trust of the EU – and more widely - matters, or is even a relevant concept.
The reason this is so crucial is that it confirms something which, as I’ve argued before, I think many pundits misunderstand about Frost’s approach to the NIP. It is not ‘playing to the domestic gallery’ and it is not intended to be, though of course may end up being, a prelude to a climbdown with the EU. Like every bull market sucker, he genuinely believes that ‘this time’ it will be different. If I am right, then Frost is not making the current hard pitch as a route to a subsequent compromise giving him much but not all of what he demands, but believes he can have those demands met pretty much in full.
This seems to be confirmed this week by the government’s immediate rejection of the EU’s proposals for some flexibilities in the application of the NIP as inadequate. It also explains why Frost isn’t doing anything to build trust with the EU in the way suggested in a wise analysis of the situation by Maddy Thimont Jack of the Institute for Government this week. For, wise as it is, trust plays no part on the Frost-Cummings-Game Theory 101 approach to negotiations. It does, however, matter in the real world, and lack of trust in both the UK in general and Johnson in particular is the central stumbling block to Frost’s recent proposals being accepted when viewed from an EU perspective.
Moreover, the antagonistic atmosphere Frost has created arguably partly explains the European Commission’s refusal to recommend that the UK be allowed to rejoin the Lugano Convention (as readers of this blog will be aware). It certainly won’t have helped. Nor is it likely to help in the re-emerging disagreements over Gibraltar. More generally, Frost either doesn’t understand or doesn’t care that it is in the nature of Brexit that the UK will, permanently, be in negotiations with the EU about something or other. Eviscerating goodwill in such circumstances is extremely foolish.
So what now?
Coming back to the NIP, in her characteristically excellent assessment of the present situation, Professor Katy Hayward suggests that Frost’s strategy “simply deepens the hole that the UK has dug for itself”. She argues that the EU has three possible responses. One would be simply to accept all or most of the UK’s demands, but she is surely right to think this highly unlikely. The second would be to take some form of retaliatory action (introduction of some tariffs, exclusion of UK from some programmes). The third is to continue to try to negotiate within the framework of the NIP, as so far continues to be the case.
That might also go alongside a more minimal acceptance of Frost’s demands to the extent of further extensions of the various grace periods. This seemed likely to happen anyway, and even more so now that the EU have announced that it will, as Frost requested, pause the legal action over those grace periods the UK unilaterally extended last March. As I flagged in my previous post, last week it was being reported that the action would proceed to the next stage by the end of this month.
The logic of Frost’s position (assuming, again, that I have read it correctly) would be to respond aggressively to any retaliations, and to bank concessions on the grace periods, regard them as proof that his ‘tough’ approach works, say they don’t go far enough, and invoke Article 16. As noted above, the latter wouldn’t solve anything but it would escalate the political crisis – which is the only direction that the Frost logic points to. In that view of the world, as soon as you back down, or even compromise, you’ve lost. That is what – as Cummings’ statements show – the Ultras think happened repeatedly post-2016 and they won’t do it again. But there is ‘a but’.
Which way will ‘shopping trolley’ Johnson veer?
The analysis that all would have been fine if only the politics of the 2016-2019 period hadn’t prevented the Brexit Ultras’ strategy working is inadequate for many reasons, including its failure to understand basic realities about the EU and the single market. But it also contains its own contradiction in imagining that the Brexit process could ever proceed separately from ‘politics’ or, as Cummings puts it, ‘SW1’ (meaning, I suppose, the entirety of the politico-governmental system). So if Frost’s logic escalates the present tensions with the EU into a huge crisis, politics may well intervene decisively in the form of Johnson.
I’m sure that, in his way, Johnson buys in to the simplism that runs through the Cummings-Frost thinking, just as he once believed that both exit and trade deals could be done as part of the Article 50 process, and that GATT Article XXIV was a get out of jail free card. However, it’s hardly a startling insight that Johnson believes deeply in very little, but cares greatly about his own position and advantage and that on policy, as Cummings puts it, he veers about like a wonky shopping trolley.
So the ‘but’ for Frost’s approach is whether, when it comes to it, he will get Johnson’s support or whether he will join the long list of those Johnson has betrayed. In answering this question, clearly any issues of principle or loyalty can be discounted. Far more shamefully, it seems unlikely that any concern for peace and security in Northern Ireland will figure highly in Johnson’s priorities. On the other hand, if there were intensified pressure from the Biden administration that could matter.
What might be most relevant, though, is the sharp recent decline in the Conservative’s opinion poll ratings and Johnson’s own approval scores. If this is still continuing come an autumn crisis the calculation may be whether a major confrontation with the EU will be popular with the electorate or not. It would certainly appeal to his voter base, and to many of his MPs. It might bring back some of his public support. But it might alienate a larger number of voters, not least since Johnson was elected on the promise that he would ‘get Brexit done’ and yet here he is, still negotiating the terms of the deal formerly known as oven-ready. In particular, it might alienate the type of Tory voters who deserted Johnson in the recent Chesham and Amersham by-election, and alarm his already “jittery” backbenchers (£). If also facing the kind of Labour post-Brexit strategy I discussed in last week’s post, which seems increasingly in prospect (£), Johnson might well conclude that, as regards the NIP, discretion is the better part of valour.
How such calculations play out obviously remains to be seen, but since so much of Brexit has been more about domestic politics than Britain’s relationship with the EU it wouldn’t be altogether surprising if it were to be so again. So it’s not impossible that Frost may soon be joining Cummings in having many spare hours in which to tweet about how Brexit would have been a huge success if only he had been allowed to do it properly.
Invoking Article 50
If we have learned nothing else since 2016, it is surely that Article 50 offered only the broadest of frameworks for withdrawal, and “invoking” it was only the beginning of a complex process. So having so enthusiastically lauded Article 50 as the answer to their prayers, the most committed Brexiters actually approached it in a variety of quite contradictory ways.
One, espoused by the Vote Leave campaign documents (slide 11), was to say that “we will negotiate the terms of a new deal before we start any legal process to leave”, meaning prior to invoking Article 50. This was impossible (and rejected by the EU before the Referendum votes had even been counted) and was rarely mentioned again after the Referendum result. The second, espoused from time to time by UKIP, was simply to leave without invoking Article 50 at all. This would have been perverse, since it wouldn’t have made any of the issues involved in leaving disappear, though, quite astonishingly, it seems to be what Dominic Cummings still thinks could have happened, and he also believes the EU would have entered negotiations prior to triggering Article 50.
The third, soon dominant, idea was that Article 50 should be invoked as soon as possible, and that any delay represented backsliding and was the province of the “enemies of the people”, so immediate invocation became a test of Brexit fidelity. A final idea, which for many months Theresa May’s government, including at the time Boris Johnson, appeared to believe, was that both exit and future terms could be agreed within the Article 50 period. This was simply false.
The underlying mind-set
All this is old history now, but worth recalling because it reveals a mind-set which has not gone away and which is coming to the fore again. It was evident on the many occasions in 2018 and 2019 that Brexiters – including Rees-Mogg, Farage and Johnson – talked of ‘invoking GATT Article XXIV’ as a way of, supposedly, securing a temporary trade deal even if no exit (let alone trade deal) had been done. It was nonsense and, notably, although Johnson referred to it during his campaign to be Tory leader during an excruciatingly embarrassing interview with Andrew Neil, he never mentioned it after that. But the same mind-set is on display now in the numerous calls and threats to ‘invoke Article 16’ of the Northern Ireland Protocol (NIP).
What is the mind-set? I think it has three, related, aspects. One lies in the image it conveys of the UK having unilateral control – it ‘invokes’ things and, as such, appears to be the active party without having to have regard for other players, notably the EU. The second is that, for all their supposed disdain for expertise, Brexiters are adept at using what to the general public sounds like ‘expert jargon’ which, when delivered in dismissive or authoritative terms, gives the impression of great mastery of technical detail when, in fact, none exists. Thirdly, and perhaps most importantly, it suggests that there is a quick and easy short-cut to solve complex and intractable problems.
As regards the NIP, it is now abundantly obvious that Johnson’s government also saw that as a short-cut to ‘solving’ Brexit, without understanding or caring what it meant. The same goes for the Brexiter MPs and MEPs who voted for it in the British and European parliaments, although some of them seem to have persuaded themselves, or been persuaded by others, that it would lapse once a trade agreement was reached. Hence, even now, dullards like Iain Duncan Smith say (£) that the NIP was “always seen by both sides as a temporary solution”. This is a flat-out falsehood. Unlike May’s ‘backstop’, this was a ‘frontstop’ agreement that existed permanently and independently of any trade agreement or of there being no trade agreement at all. The two were connected only to the extent that had the trade agreement been a ‘deeper’ one, then the nature of the Irish Sea border would have been correspondingly ‘thinner’ (e.g. in terms of the extensiveness of checks).
Invoking Article 16: and then what?
Whether it was always intended or only later decided that the NIP would be reneged upon, the idea that ‘invoking Article 16’ offered a way out of what had been agreed first surfaced as early as January 13 2021, when Johnson spoke of doing so in the House of Commons. That date is of note for two reasons. Firstly, because it was less than two weeks into the actual operation of the NIP, showing how early it was being threatened (and, of course, Johnson and others had denied from the outset that the NIP meant there would be an Irish Sea border). And secondly because it predates by two weeks the EU’s own short-lived and abandoned threat to invoke Article 16 over vaccine supplies, of which Brexiters and the government now make so much.
As I wrote at the time, that was a major blunder by the EU, with no justification. Even so, and apart from the fact it never happened, what it would have meant has been heavily misrepresented. It would not have meant creating an Ireland-Northern Ireland border, as some Brexiters now claim, but only that vaccines destined for Northern Ireland would never have left the factory in Belgium. Moreover, it would have been a specific measure to deal with a particular and unforeseen emergency. In this, even as a possibility, it was entirely different to the way that the Brexiters, and the government, are now talking about how the UK might try to use Article 16.
What that talk seems to suggest is that Article 16 would allow the UK unilaterally to suspend the entirety of the NIP or even unilaterally to disapply the NIP. As Professors Katy Hayward and Dave Phinnemore of Queen’s University Belfast explain, neither of these is the case. The UK would need to identify ‘serious’ problems which were ‘unexpected’ and ‘likely to persist’, and the proposed solutions, for consideration and discussion by the Joint Committee. Diversion of trade is one possible problem which might be identified – and Frost’s recent statements seem to imply it is the one upon which the UK might base an Article 16 invocation - but it can’t just be that which was to be expected because it is inherent in the agreement. It certainly isn’t the case, as, again, Iain Duncan Smith recently claimed (£), that diversion is “forbidden” by the NIP. And most certainly Article 16 isn’t a way of just saying ‘we don’t like this agreement’: its terms would continue to exist, and many of them would continue to operate.
So, rather as with invoking Article 50, it would be the beginning of a process (though not one leading to ‘exiting’ the NIP). Thus whenever invoking Article 16 is proposed, the crucial question that should be asked is: and then what? The answer, inescapably, is further negotiation with the EU, but if that has failed to give the UK the outcome it wants without using Article 16 then it is no more likely (probably less likely) having done so. So what then? Rip up the NIP entirely, with all that will mean for possible trade sanctions from the EU, and, at the very least, diplomatic rows with the US? And, still, what then?
Article 16 can’t solve the deeper problem
For the deeper problem in all this is the same one that has existed since, at least, the UK government decided in January 2017 that Brexit meant hard Brexit. If the UK is to be outside the regulatory regime of the EU single market and the tariff regime of the customs union then the UK itself needs a border just as the EU does. So where’s the border? That question has no easier answer now than it had in all the years since 2017 during which endless models were proposed. The NIP is the least-worst answer that anyone could come up with which both sides would agree to.
The recent spate of self-serving tweets from Dominic Cummings on this subject is again instructive. Although he affects disdain for the ERG, his account is precisely that which most of them have been peddling for years, namely that the Irish border issue was a minor or even non-existent one, and only achieved prominence because of the weakness and incompetence of May’s government and its acceptance of what Cummings calls the “babbling” about the Good Friday Agreement. Had what he calls “we” (apparently meaning the Vote Leave team) been in charge, the UK would just have refused to erect borders and if the EU did then so be it: the integrity of the single market was the EU’s problem, not the UK’s (he still doesn’t seem to realise that the UK needed a border as well). By the time Johnson and Cummings came to power, it was too late and what they both childishly call the ‘Surrender Act’ (meaning the Benn Act) prevented resurrecting a hardball approach, hence the NIP with its associated Irish Sea border. This, of course, rests on the preposterous idea that a no-deal Brexit, which would have damaged the UK far more than the EU, constituted negotiating leverage had the Benn Act not prevented it.
As I say, none of this is new and I’ve catalogued it as the boilerplate position of the Brexit Ultras endlessly on this blog, as well as explaining why it was unrealistic. Apart from anything else it ignores the fact that David Davis thought pretty much exactly the same things, but found that they were unworkable, including the fantasy of an Article 50 pre-negotiation, the denial of the reality of the Irish border issue, and the delusion that Ireland was only a minor player. In short, most of Cummings’s ‘hypotheticals’ are already discredited. More generally, what developed into May’s deal wasn’t a result of the Ultras’ approach not having been tried, but of it having been tried and failed. So it is only of passing interest, and no surprise, that Cummings himself has confirmed that he shares their analysis of the Brexit process and clings – in a way reminiscent of those who used to defend the USSR as not being ‘real’ Communism – to the idea that ‘it just wasn’t tried properly’.
Frost’s flawed logic
Cummings is irrelevant now, hence he has the time to re-litigate the events of the last few years in his barrage of tweets and blogs. But what remains highly relevant is that his analysis is shared by David Frost who, of course, was one of the Cummings’ group when the NIP was negotiated. Frost may not have brewed the Kool-Aid (his skills, to the extent they are discernible, appear to be emulative rather than innovative), but he certainly drank deeply from the cup. So Cummings’s statements underscore the fact that Frost, like all the Brexit Ultras, doesn’t accept the need for the NIP or the validity of the process that led to it. Moreover, it underscores his commitment to the fanciful idea that playing ‘hardball’ pays dividends – the belief, for example, that the illegal clauses in the Internal Markets Bill paved the way to a trade deal being struck (in fact, they nearly scuppered it). The corollary of that belief is a refusal to accept that the UK losing the trust of the EU – and more widely - matters, or is even a relevant concept.
The reason this is so crucial is that it confirms something which, as I’ve argued before, I think many pundits misunderstand about Frost’s approach to the NIP. It is not ‘playing to the domestic gallery’ and it is not intended to be, though of course may end up being, a prelude to a climbdown with the EU. Like every bull market sucker, he genuinely believes that ‘this time’ it will be different. If I am right, then Frost is not making the current hard pitch as a route to a subsequent compromise giving him much but not all of what he demands, but believes he can have those demands met pretty much in full.
This seems to be confirmed this week by the government’s immediate rejection of the EU’s proposals for some flexibilities in the application of the NIP as inadequate. It also explains why Frost isn’t doing anything to build trust with the EU in the way suggested in a wise analysis of the situation by Maddy Thimont Jack of the Institute for Government this week. For, wise as it is, trust plays no part on the Frost-Cummings-Game Theory 101 approach to negotiations. It does, however, matter in the real world, and lack of trust in both the UK in general and Johnson in particular is the central stumbling block to Frost’s recent proposals being accepted when viewed from an EU perspective.
Moreover, the antagonistic atmosphere Frost has created arguably partly explains the European Commission’s refusal to recommend that the UK be allowed to rejoin the Lugano Convention (as readers of this blog will be aware). It certainly won’t have helped. Nor is it likely to help in the re-emerging disagreements over Gibraltar. More generally, Frost either doesn’t understand or doesn’t care that it is in the nature of Brexit that the UK will, permanently, be in negotiations with the EU about something or other. Eviscerating goodwill in such circumstances is extremely foolish.
So what now?
Coming back to the NIP, in her characteristically excellent assessment of the present situation, Professor Katy Hayward suggests that Frost’s strategy “simply deepens the hole that the UK has dug for itself”. She argues that the EU has three possible responses. One would be simply to accept all or most of the UK’s demands, but she is surely right to think this highly unlikely. The second would be to take some form of retaliatory action (introduction of some tariffs, exclusion of UK from some programmes). The third is to continue to try to negotiate within the framework of the NIP, as so far continues to be the case.
That might also go alongside a more minimal acceptance of Frost’s demands to the extent of further extensions of the various grace periods. This seemed likely to happen anyway, and even more so now that the EU have announced that it will, as Frost requested, pause the legal action over those grace periods the UK unilaterally extended last March. As I flagged in my previous post, last week it was being reported that the action would proceed to the next stage by the end of this month.
The logic of Frost’s position (assuming, again, that I have read it correctly) would be to respond aggressively to any retaliations, and to bank concessions on the grace periods, regard them as proof that his ‘tough’ approach works, say they don’t go far enough, and invoke Article 16. As noted above, the latter wouldn’t solve anything but it would escalate the political crisis – which is the only direction that the Frost logic points to. In that view of the world, as soon as you back down, or even compromise, you’ve lost. That is what – as Cummings’ statements show – the Ultras think happened repeatedly post-2016 and they won’t do it again. But there is ‘a but’.
Which way will ‘shopping trolley’ Johnson veer?
The analysis that all would have been fine if only the politics of the 2016-2019 period hadn’t prevented the Brexit Ultras’ strategy working is inadequate for many reasons, including its failure to understand basic realities about the EU and the single market. But it also contains its own contradiction in imagining that the Brexit process could ever proceed separately from ‘politics’ or, as Cummings puts it, ‘SW1’ (meaning, I suppose, the entirety of the politico-governmental system). So if Frost’s logic escalates the present tensions with the EU into a huge crisis, politics may well intervene decisively in the form of Johnson.
I’m sure that, in his way, Johnson buys in to the simplism that runs through the Cummings-Frost thinking, just as he once believed that both exit and trade deals could be done as part of the Article 50 process, and that GATT Article XXIV was a get out of jail free card. However, it’s hardly a startling insight that Johnson believes deeply in very little, but cares greatly about his own position and advantage and that on policy, as Cummings puts it, he veers about like a wonky shopping trolley.
So the ‘but’ for Frost’s approach is whether, when it comes to it, he will get Johnson’s support or whether he will join the long list of those Johnson has betrayed. In answering this question, clearly any issues of principle or loyalty can be discounted. Far more shamefully, it seems unlikely that any concern for peace and security in Northern Ireland will figure highly in Johnson’s priorities. On the other hand, if there were intensified pressure from the Biden administration that could matter.
What might be most relevant, though, is the sharp recent decline in the Conservative’s opinion poll ratings and Johnson’s own approval scores. If this is still continuing come an autumn crisis the calculation may be whether a major confrontation with the EU will be popular with the electorate or not. It would certainly appeal to his voter base, and to many of his MPs. It might bring back some of his public support. But it might alienate a larger number of voters, not least since Johnson was elected on the promise that he would ‘get Brexit done’ and yet here he is, still negotiating the terms of the deal formerly known as oven-ready. In particular, it might alienate the type of Tory voters who deserted Johnson in the recent Chesham and Amersham by-election, and alarm his already “jittery” backbenchers (£). If also facing the kind of Labour post-Brexit strategy I discussed in last week’s post, which seems increasingly in prospect (£), Johnson might well conclude that, as regards the NIP, discretion is the better part of valour.
How such calculations play out obviously remains to be seen, but since so much of Brexit has been more about domestic politics than Britain’s relationship with the EU it wouldn’t be altogether surprising if it were to be so again. So it’s not impossible that Frost may soon be joining Cummings in having many spare hours in which to tweet about how Brexit would have been a huge success if only he had been allowed to do it properly.
Friday, 3 January 2020
The battle between remembering and forgetting
It’s difficult to know whether to regard Boris Johnson’s reported ban on Ministers and officials using the word Brexit after 31 January as sinister or silly – or perhaps both. But it is a helpful reminder of the dishonesty and chicanery that the Brexit process is going to continue to embody in the coming months. More profoundly, it symbolises how those months are going to entail a battle between remembering and forgetting.
New lies for old
At the most obvious level, the idea of not mentioning Brexit after 31 January is part of the more general smokescreen to pretend that, on this date, it will be “done”. In the same way, and according to the same reports, there are to be no further official references to negotiating a deal with the EU. For, according to the new scripture, the ‘deal’ has already been done – it is the Withdrawal Agreement – and so the negotiation of future terms cannot be referred to in this way.
It’s a transparent ploy, in itself, but it is also the offspring of some older lies. For Brexiters, including at one time Johnson, used to believe, or pretend to believe, that both exit terms and future terms could be wrapped up within the Article 50 period. Indeed, many Brexiters, including at one time Johnson, used to say that exit terms – and especially the financial settlement - should not and need not be agreed until future trade terms had been. All of these claims were always untrue. So now the inconvenience of these old lies is to be covered over with a new one: that there is only one deal to do, and it has been done.
The announcement that DExEu is to close on the same date is presumably intended to communicate the same message. However here, at least, there is a more charitable interpretation which is that, as a piece of government machinery, it was always misconceived and, in particular, created crossed chains of command with Downing Street and the Cabinet Office. Notably, the Institute for Government has argued since 2016 that it should not have been created. More recently IfG’s Joe Owen has made the case for closing it now but notes that, of course, this does not mean – as the announcement might be taken to imply - that the amount of civil service effort needed to deliver Brexit has reduced.
A policy with no purpose
But banning the Brexit word has a deeper significance, too, and one which I think historians will find both interesting and perplexing. For it is an extension of something which has been underway almost since the Referendum result itself. Few, if any, of the original advocates of Brexit any longer make any case for it being a good thing in its own terms, or, in any specific way, as having any beneficial outcomes.
Under Theresa May, there was a palpable sense that she was enacting a policy she knew to be damaging and that her task was to achieve what damage limitation she could – the scope for which she almost entirely closed down by virtue of her Lancaster House speech. Brexiters chalked this miserabilism up to her remainer negativity, but they, too, have ceased to claim any great benefits for Brexit.
During the election campaign, and now, Johnson has talked only of ‘getting it done’ in order to be able to focus on the people’s priorities. That very formulation at least implies that getting Brexit done is not one of those priorities, and the policies of NHS and infrastructure spending and so on that he claims to be the priorities could all be done, and be more easily done, without Brexit happening at all.
So, for many months now, the only argument made for Brexit is that it must be done because that was the outcome of the Referendum vote. For some, perhaps, that argument does over-ride all others, to the extent of thinking that even if it is a bad thing in itself it must be done for reasons of trust or democratic legitimacy. Yet – even if those were good arguments - it is strange that its most prominent campaigners no longer make any other case, and that this case is only one of avoiding the negative consequences of not proceeding rather than identifying the positive consequences of doing so. Why on earth would we not mention it, indeed why would we not take every opportunity to trumpet it, if it is such a wonderful thing?
Johnson’s New Year message
In this sense, the edict not to mention Brexit, despite it only being halfway to completion, links to Johnson’s New Year message calling for everyone to unite together and move forward from the divisions of the Referendum. Both are suggesting that we all simply shrug our shoulders and forget the promises that were made for Brexit, the damage it has already done, the damage it has still to do, and, indeed, all the decisions that have still to be made.
It’s as if it were an embarrassing episode at the Christmas office party that it would be bad taste to remind anyone of in the new year. That would be absurd enough, but when the message comes from the person who – metaphorically speaking – was caught photocopying his buttocks and who – literally speaking – is the boss it is at best self-serving and at worst an abuse of power.
The important question is how realistic is this strategy? People – and it is probably most people – may be heartily sick of the divisions and problems that Brexit has caused, but they aren’t all going to simply forget about them. Johnson has conducted his whole career, and, it seems, much of his personal life, on the basis of creating a colossal mess and then avoiding all responsibility for it. But Brexit is far, far bigger than any of his previous messes and he’s not easily going to be able to shrug it off and walk away, which both the B-word edict and the New Year’s message suggest he is going to attempt to do.
The bigger part of that strategy is, presumably, going to be to try to keep the forthcoming trade negotiations with the EU as secretive as possible and, also, to make them seem entirely boring and technical, and hope that no one pays too much attention. That means the electorate, of course, but also the more extreme of his backbenchers. That may have some hope of success – some electors in any case believe that Britain left the EU in 2016, others will be happy enough to think that it was done on 31 January. And no doubt there will be many in the pro-Brexit press who will acclaim any trade deal, even a minimal one, as a great triumph.
Meanwhile, ongoing news of company relocations or disinvestments will be explained away as ‘nothing to do’ with the thing we no longer mention. In any case, since little will change in the transition period it will be easy to claim that Brexit has been ‘done’ without the adverse effects predicted by the ‘doomsters’. Subsequent to that, such effects will be dismissed as due to other causes since they came so long after Brexit was ‘done’.
Perhaps the strangest thing about the coming period is that whilst declaiming a future in which Britain’s potential will be “unleashed” – by implication because of ‘casting off the shackles’ of EU membership – behind the scenes what will probably be going will be a slow drip-feed of measures to re-attach the UK to EU systems and processes. An early precedent and template for such an approach can be found in data protection legislation. These measures may not have a high profile and are likely to lie outside of anything specifically identified as trade deal – or, more likely, be about non-trade matters - but will either seek to reproduce, or be inferior or more expensive versions of, existing relationships. To the extent that they are noticed at all, people will wonder what the point is; more likely, Johnson is gambling on them being too arcane to attract much interest.
Confronting realities
Even so, in important ways, the coming year is going to see Johnson forced to confront many of the realities which he has either denied or been ignorant of, and that will be true no matter how many of the officials and politicians involved are ‘true believers’. To an extent that has already started in that, mercifully, we no longer hear anything of the ‘alternative arrangements’ for the Irish border nor the GATT Article XXIV nonsense. But there is much more reality to come.
In particular, the underlying confusions which gave rise to all the ‘easiest deal in history’ claims are going to be ruthlessly exposed. Such claims – made at various times by Liam Fox, David Davis, Peter Lilley, and Johnson himself – are based, when they are based on anything other than windy chauvinism, on the idea that the UK is already completely aligned with the EU, and therefore a trade deal will be easy.
That is a proposition which resolutely refuses to accept that as a consequence of Brexit, the UK, even in the transition period, will be a third country with respect to the EU. So it is not that the current membership terms are the baseline for negotiation, to be subtracted from. Rather – as regards trade – WTO terms are the baseline to which things might be added by negotiation. There is not a special ‘alumni club’ for ex-members of the EU.
It’s true, as EU Trade Commissioner Phil Hogan said the other day, that the fact of current convergence and integration could make a close relationship easy. But that is only so if the desired outcome is convergence and integration. Since, as Hogan went on to say, the UK desire is apparently for divergence then current convergence is not helpful at all. In reality, this just amounts to a reprise of the Barnier staircase: for as long as UK red lines over, in particular, the ECJ and freedom of movement continue, then that circumscribes what kind of deal can be done. If the UK adds, as it has under Johnson, new red lines over level playing field commitments, that makes any deal more minimal still.
It is here that Johnson will confront the biggest difficulties in his ‘don’t mention Brexit’ strategy. If he holds firm to seeking only a very minimal trade deal, there is going to be a lot of economic fallout. If he does not, then there will be a lot of political fallout. If either of those things happen, then Brexit will certainly continue to be at the forefront of public debate, and the claim that it has ‘been done’ will ring hollow.
Brexit talks to continue …
In this sense, as noted in a recent post on this blog, the underlying dynamics of Brexit will not change after 31 January as regards the contradictions and conundrums of what it means for the UK. Yet, in another sense, there will be a change as regards the dynamics between the UK and the EU. During the Article 50 negotiations, Brexiters repeatedly spoke of how ‘EU negotiations’ always go to the last minute of the last hour. In this, they failed to see the difference between, for example, treaty negotiations amongst the existing, ongoing member states – with last minute horse-trading to facilitate an agreement - and those between the EU-27 and the one, departing, state. The late breakthrough which did happen was simply based on the UK accepting the Irish Sea border that it had previously rejected.
And just as the Article 50 negotiations differed from normal intra-EU negotiations, so too will future terms talks, which will occur under Article 218 which governs EU negotiating rules with third countries, differ from the Article 50 talks*. Amongst other things, depending on the scope of the future terms agreement this will have implications for whether unanimity or qualified majority within the European Council is needed to conclude any agreement reached.
Alongside this difference in legal process, there is a sense that the political priority which Brexit has for the EU – which, except perhaps in the very immediate post-Referendum period was never as all-encompassing as it was for the UK – will diminish further. It will be one amongst many issues which the new EU leadership team face and, necessarily, the UK-EU trade relationship matters far more for the UK, for whom the EU is its largest trade partner, than it does for the EU. If Johnson continues down the track that makes a distant relationship inevitable then, by the same token, it becomes even less salient for the EU. If he changes track, then the compromises the EU will require will loom large. Either way, the realpolitik of the power difference between the EU and the UK will become ever clearer.
And Brexit talk to continue …
For all that the government may not wish the public to notice this, judging by what happened with the Article 50 negotiations there will be plenty of press releases and statements from the EU about how talks are progressing. There is also likely to be plenty of noise from business lobbies in the UK, if a minimal deal is in prospect, and from irate Brexiters if an extensive deal is in prospect. There will be plenty of talk of preparations if no deal 2.0 is in prospect. And there will certainly be ongoing and intensifying discussions of the future of Scotland and Northern Ireland within the UK.
For all of these reasons, I think it is unlikely that Johnson will achieve his aim of getting the nation to move on from and forget the Brexit that he did so much to cause and is going to spend at least the next year enacting. Apart from anything else, for all his talk of respect and friendship, Johnson is offering no compromise towards remainers in the form that Brexit is to take. And whilst some – even some who once cared passionately – will no doubt cease to be engaged by or interested in Brexit it remains the case that it is a policy which only ever had a bare majority in support, and that for only a fleeting period of time.
So the idea that it can all be brushed over and forgotten like an ill-advised newspaper column is, surely, naïve? Or, perhaps, to think otherwise is naïve? For Johnson’s hope is presumably that the electorate are ignorant, lazy and forgetful – like all populists he has a low opinion of the people he purports to speak for – and that the post-truth politics that have got him so far will protect him from being held accountable.
At all events, the tight rope that Johnson will walk this coming year will be defined by whether people remember what was promised and how false those promises were or whether, as he hopes, they forget and, indeed, ‘move on’, accepting what happens as ‘just the way things are’. He has already set down the first chips in that cynical gamble. In the coming year, we’ll see whether he is right.
*There is a fiddly complexity here in that Article 50 utilises Article 218 (3) but, for the future terms talks, the entirety of Article 218 applies. There has also been some discussion within legal circles about whether, in fact, future terms negotiations could be conducted under Article 50 rather than under Article 218 – however, the consensus seems to be against this.
New lies for old
At the most obvious level, the idea of not mentioning Brexit after 31 January is part of the more general smokescreen to pretend that, on this date, it will be “done”. In the same way, and according to the same reports, there are to be no further official references to negotiating a deal with the EU. For, according to the new scripture, the ‘deal’ has already been done – it is the Withdrawal Agreement – and so the negotiation of future terms cannot be referred to in this way.
It’s a transparent ploy, in itself, but it is also the offspring of some older lies. For Brexiters, including at one time Johnson, used to believe, or pretend to believe, that both exit terms and future terms could be wrapped up within the Article 50 period. Indeed, many Brexiters, including at one time Johnson, used to say that exit terms – and especially the financial settlement - should not and need not be agreed until future trade terms had been. All of these claims were always untrue. So now the inconvenience of these old lies is to be covered over with a new one: that there is only one deal to do, and it has been done.
The announcement that DExEu is to close on the same date is presumably intended to communicate the same message. However here, at least, there is a more charitable interpretation which is that, as a piece of government machinery, it was always misconceived and, in particular, created crossed chains of command with Downing Street and the Cabinet Office. Notably, the Institute for Government has argued since 2016 that it should not have been created. More recently IfG’s Joe Owen has made the case for closing it now but notes that, of course, this does not mean – as the announcement might be taken to imply - that the amount of civil service effort needed to deliver Brexit has reduced.
A policy with no purpose
But banning the Brexit word has a deeper significance, too, and one which I think historians will find both interesting and perplexing. For it is an extension of something which has been underway almost since the Referendum result itself. Few, if any, of the original advocates of Brexit any longer make any case for it being a good thing in its own terms, or, in any specific way, as having any beneficial outcomes.
Under Theresa May, there was a palpable sense that she was enacting a policy she knew to be damaging and that her task was to achieve what damage limitation she could – the scope for which she almost entirely closed down by virtue of her Lancaster House speech. Brexiters chalked this miserabilism up to her remainer negativity, but they, too, have ceased to claim any great benefits for Brexit.
During the election campaign, and now, Johnson has talked only of ‘getting it done’ in order to be able to focus on the people’s priorities. That very formulation at least implies that getting Brexit done is not one of those priorities, and the policies of NHS and infrastructure spending and so on that he claims to be the priorities could all be done, and be more easily done, without Brexit happening at all.
So, for many months now, the only argument made for Brexit is that it must be done because that was the outcome of the Referendum vote. For some, perhaps, that argument does over-ride all others, to the extent of thinking that even if it is a bad thing in itself it must be done for reasons of trust or democratic legitimacy. Yet – even if those were good arguments - it is strange that its most prominent campaigners no longer make any other case, and that this case is only one of avoiding the negative consequences of not proceeding rather than identifying the positive consequences of doing so. Why on earth would we not mention it, indeed why would we not take every opportunity to trumpet it, if it is such a wonderful thing?
Johnson’s New Year message
In this sense, the edict not to mention Brexit, despite it only being halfway to completion, links to Johnson’s New Year message calling for everyone to unite together and move forward from the divisions of the Referendum. Both are suggesting that we all simply shrug our shoulders and forget the promises that were made for Brexit, the damage it has already done, the damage it has still to do, and, indeed, all the decisions that have still to be made.
It’s as if it were an embarrassing episode at the Christmas office party that it would be bad taste to remind anyone of in the new year. That would be absurd enough, but when the message comes from the person who – metaphorically speaking – was caught photocopying his buttocks and who – literally speaking – is the boss it is at best self-serving and at worst an abuse of power.
The important question is how realistic is this strategy? People – and it is probably most people – may be heartily sick of the divisions and problems that Brexit has caused, but they aren’t all going to simply forget about them. Johnson has conducted his whole career, and, it seems, much of his personal life, on the basis of creating a colossal mess and then avoiding all responsibility for it. But Brexit is far, far bigger than any of his previous messes and he’s not easily going to be able to shrug it off and walk away, which both the B-word edict and the New Year’s message suggest he is going to attempt to do.
The bigger part of that strategy is, presumably, going to be to try to keep the forthcoming trade negotiations with the EU as secretive as possible and, also, to make them seem entirely boring and technical, and hope that no one pays too much attention. That means the electorate, of course, but also the more extreme of his backbenchers. That may have some hope of success – some electors in any case believe that Britain left the EU in 2016, others will be happy enough to think that it was done on 31 January. And no doubt there will be many in the pro-Brexit press who will acclaim any trade deal, even a minimal one, as a great triumph.
Meanwhile, ongoing news of company relocations or disinvestments will be explained away as ‘nothing to do’ with the thing we no longer mention. In any case, since little will change in the transition period it will be easy to claim that Brexit has been ‘done’ without the adverse effects predicted by the ‘doomsters’. Subsequent to that, such effects will be dismissed as due to other causes since they came so long after Brexit was ‘done’.
Perhaps the strangest thing about the coming period is that whilst declaiming a future in which Britain’s potential will be “unleashed” – by implication because of ‘casting off the shackles’ of EU membership – behind the scenes what will probably be going will be a slow drip-feed of measures to re-attach the UK to EU systems and processes. An early precedent and template for such an approach can be found in data protection legislation. These measures may not have a high profile and are likely to lie outside of anything specifically identified as trade deal – or, more likely, be about non-trade matters - but will either seek to reproduce, or be inferior or more expensive versions of, existing relationships. To the extent that they are noticed at all, people will wonder what the point is; more likely, Johnson is gambling on them being too arcane to attract much interest.
Confronting realities
Even so, in important ways, the coming year is going to see Johnson forced to confront many of the realities which he has either denied or been ignorant of, and that will be true no matter how many of the officials and politicians involved are ‘true believers’. To an extent that has already started in that, mercifully, we no longer hear anything of the ‘alternative arrangements’ for the Irish border nor the GATT Article XXIV nonsense. But there is much more reality to come.
In particular, the underlying confusions which gave rise to all the ‘easiest deal in history’ claims are going to be ruthlessly exposed. Such claims – made at various times by Liam Fox, David Davis, Peter Lilley, and Johnson himself – are based, when they are based on anything other than windy chauvinism, on the idea that the UK is already completely aligned with the EU, and therefore a trade deal will be easy.
That is a proposition which resolutely refuses to accept that as a consequence of Brexit, the UK, even in the transition period, will be a third country with respect to the EU. So it is not that the current membership terms are the baseline for negotiation, to be subtracted from. Rather – as regards trade – WTO terms are the baseline to which things might be added by negotiation. There is not a special ‘alumni club’ for ex-members of the EU.
It’s true, as EU Trade Commissioner Phil Hogan said the other day, that the fact of current convergence and integration could make a close relationship easy. But that is only so if the desired outcome is convergence and integration. Since, as Hogan went on to say, the UK desire is apparently for divergence then current convergence is not helpful at all. In reality, this just amounts to a reprise of the Barnier staircase: for as long as UK red lines over, in particular, the ECJ and freedom of movement continue, then that circumscribes what kind of deal can be done. If the UK adds, as it has under Johnson, new red lines over level playing field commitments, that makes any deal more minimal still.
It is here that Johnson will confront the biggest difficulties in his ‘don’t mention Brexit’ strategy. If he holds firm to seeking only a very minimal trade deal, there is going to be a lot of economic fallout. If he does not, then there will be a lot of political fallout. If either of those things happen, then Brexit will certainly continue to be at the forefront of public debate, and the claim that it has ‘been done’ will ring hollow.
Brexit talks to continue …
In this sense, as noted in a recent post on this blog, the underlying dynamics of Brexit will not change after 31 January as regards the contradictions and conundrums of what it means for the UK. Yet, in another sense, there will be a change as regards the dynamics between the UK and the EU. During the Article 50 negotiations, Brexiters repeatedly spoke of how ‘EU negotiations’ always go to the last minute of the last hour. In this, they failed to see the difference between, for example, treaty negotiations amongst the existing, ongoing member states – with last minute horse-trading to facilitate an agreement - and those between the EU-27 and the one, departing, state. The late breakthrough which did happen was simply based on the UK accepting the Irish Sea border that it had previously rejected.
And just as the Article 50 negotiations differed from normal intra-EU negotiations, so too will future terms talks, which will occur under Article 218 which governs EU negotiating rules with third countries, differ from the Article 50 talks*. Amongst other things, depending on the scope of the future terms agreement this will have implications for whether unanimity or qualified majority within the European Council is needed to conclude any agreement reached.
Alongside this difference in legal process, there is a sense that the political priority which Brexit has for the EU – which, except perhaps in the very immediate post-Referendum period was never as all-encompassing as it was for the UK – will diminish further. It will be one amongst many issues which the new EU leadership team face and, necessarily, the UK-EU trade relationship matters far more for the UK, for whom the EU is its largest trade partner, than it does for the EU. If Johnson continues down the track that makes a distant relationship inevitable then, by the same token, it becomes even less salient for the EU. If he changes track, then the compromises the EU will require will loom large. Either way, the realpolitik of the power difference between the EU and the UK will become ever clearer.
And Brexit talk to continue …
For all that the government may not wish the public to notice this, judging by what happened with the Article 50 negotiations there will be plenty of press releases and statements from the EU about how talks are progressing. There is also likely to be plenty of noise from business lobbies in the UK, if a minimal deal is in prospect, and from irate Brexiters if an extensive deal is in prospect. There will be plenty of talk of preparations if no deal 2.0 is in prospect. And there will certainly be ongoing and intensifying discussions of the future of Scotland and Northern Ireland within the UK.
For all of these reasons, I think it is unlikely that Johnson will achieve his aim of getting the nation to move on from and forget the Brexit that he did so much to cause and is going to spend at least the next year enacting. Apart from anything else, for all his talk of respect and friendship, Johnson is offering no compromise towards remainers in the form that Brexit is to take. And whilst some – even some who once cared passionately – will no doubt cease to be engaged by or interested in Brexit it remains the case that it is a policy which only ever had a bare majority in support, and that for only a fleeting period of time.
So the idea that it can all be brushed over and forgotten like an ill-advised newspaper column is, surely, naïve? Or, perhaps, to think otherwise is naïve? For Johnson’s hope is presumably that the electorate are ignorant, lazy and forgetful – like all populists he has a low opinion of the people he purports to speak for – and that the post-truth politics that have got him so far will protect him from being held accountable.
At all events, the tight rope that Johnson will walk this coming year will be defined by whether people remember what was promised and how false those promises were or whether, as he hopes, they forget and, indeed, ‘move on’, accepting what happens as ‘just the way things are’. He has already set down the first chips in that cynical gamble. In the coming year, we’ll see whether he is right.
*There is a fiddly complexity here in that Article 50 utilises Article 218 (3) but, for the future terms talks, the entirety of Article 218 applies. There has also been some discussion within legal circles about whether, in fact, future terms negotiations could be conducted under Article 50 rather than under Article 218 – however, the consensus seems to be against this.
Thursday, 20 June 2019
Tantric Brexit
It is now
three years since the UK embarked on its extraordinary act of self-immolation.
We have already seen the early consequences in terms of lost
economic growth, business damage, international
reputation, political
toxicity and some
of the human cost, especially to the EU-27 nationals in the UK
and UK
nationals in the EU-27 who are still, shamefully, left in limbo.
There’s much more to come.
This time last year I wrote an outline of how we got into this mess, most of which still stands and I won’t repeat it here. Since then, much has happened. Most obviously, another year has passed. That is not a trite observation, because ever since the invocation of Article 50 the passage and press of time has been the defining reality of Brexit.
Equally obviously, Britain has not left the EU, with the deadline now twice extended. That too is not a trite observation, given both the Brexiter promises of how easy leaving would be – remember Boris Johnson, in December 2016, saying that 18 months would be “absolutely ample” for a “great deal” - and Theresa May’s adamantine insistence that 29 March 2019 would, incontrovertibly, be Brexit day.
The clock is still ticking, which continues to matter and is soon going to be what matters most again. The current hiatus of the leadership contest perhaps makes politics seem more normal than it is. For although such contests are not an everyday event they do have a familiar shape, allowing the media to obsess about the odds of the ‘runners and riders’ and to revel in the skulduggery of the candidates’ tactics.
Normality masks crisis
That apparent normality obscures the extent to which Britain is in a very deep crisis, completely scrambled by Brexit. That is doubly unfortunate because apart from being misleading it is also a missed opportunity. Arguably, for all that the contest is a squandering of the Article 50 extension, it could, just conceivably, have been a chance to finally begin to get real about what Brexit means. When Rory Stewart, the only candidate for the leadership who even partially tried to do this, was knocked out earlier this week any such realism departed.
Stewart’s realism was only partial in that, in effect, he was seeking to resurrect May’s deal without properly addressing how that would get through parliament in the absence of another election or another referendum. But at least he was raising the important point that the idea of a substantive renegotiation of the Irish backstop is a fantasy, as well as important questions about what no-deal Brexit actually means in practice.
With him gone, and the candidates now whittled down to Boris Johnson and Jeremy Hunt, even that small sliver of sense has departed. Their Brexit policies are not remotely realistic and differ only in that Johnson probably (though he has left himself the tiniest piece of wriggle room [£]) wants to leave the EU on 31 October come what may, whereas Hunt would be willing to countenance a short delay. Even that is enough to enrage the most extreme Brexiters, as Michael Gove found out on a radio phone-in today, when a caller (responding to his analogy for such a delay) said she would rather rip out her new kitchen, for want of the hob being delivered, than wait an extra couple of days.
But even if Hunt were to take the hardest of lines he would, in the new McCarthyism of Brexit, be forever damned for having once been a remainer. His ill-judged and distasteful ‘Soviet Union’ jibe at last year’s party conference did as little for his reputation amongst Brexiters as it did for his reputation full stop. Unless Johnson commits some massive gaffe – not impossible, by any means – Hunt has virtually no chance of being chosen by the Tory Party membership.
For a poll this week of that membership showed just how extreme a body it has become, with a majority willing to accept Scotland and Northern Ireland leaving the UK, significant damage to the economy, and even their party being destroyed so long as Brexit is delivered – and 46% of whom would be happy if Nigel Farage became their leader. There’s a need for caution in interpreting this – such responses could just be a way of signalling strength of feeling about Brexit rather than the actuality of what those responding would accept – but, even so, it is remarkable.
The revolution continues to devour its children
But what is actually even more remarkable is the fact that the state of the Tory Party precludes Hunt (or for that matter Stewart, Javid and Hancock, had they made it this far) becoming its leader. For, recall, even the ‘softest’ of them, Stewart, advocates a deal in which the UK leaves the single market and customs union without further negotiation (whilst the others, including Hunt, seek re-negotiation with no deal as a possibility).
At the time of the Referendum Stewart’s would have been described as a hard Brexit position. Yet, now, he is described as an “ultra remainer”. Even more remarkably, Michael Gove, one of the leading figures of the Vote Leave campaign, is regarded by the true believers as not being a true ‘Brexiteer’ at all. The obvious consequence of that claim, as Danny Finkelstein has pointed out, is that it means the referendum didn’t give a mandate for the Brexit of the true believers.
All of this is a further indication of the shift, discussed in my previous post, which has normalised no-deal Brexit as if it grew directly from the referendum result. Another version of the same claim is that because MPs voted overwhelmingly to trigger Article 50 this means that they voted for no-deal, because that is what happens at the end of the Article 50 period if there is no deal.
That is pure nonsense, not just because a deal was promised but because there are other possible outcomes (extension, revocation), and it was the previous parliament anyway. So it is quite dishonest to pretend there is either a popular or a parliamentary mandate for no-deal Brexit (and if Johnson or anyone else pursues it, there will be a major question of political legitimacy).
Same old lie, part 24
Honesty is in any case, as usual, in short supply. For the advocates of no deal have now brought to centre-stage the claim they have been kicking around for months, that GATT Article XXIV offers a pain-free way of doing no-deal Brexit. It is a new version of the original referendum lie, which has dogged the entire process, that Brexit can be easy and costless. Johnson made a blustering reference to it in the woeful TV debate last Tuesday, and the Ultras are pushing it as hard as they can. The claim is that Article XXIV would allow the UK to continue with tariff- and quota-free trade with the EU for up to ten years if there is an agreement that that is the ultimate goal, even if there is a no-deal Brexit.
Yet the logical flaw is so obvious that a not especially intelligent child could see it: Article XXIV relates to the implementation of an agreement in principle. If there is no such agreement, it is irrelevant. If there is a no-deal Brexit, there will be no such agreement. Therefore it is irrelevant. It’s also worth noting that, in any case, it would only relate to trade in goods, not services, and – which seems hardly remarked upon at all – it has nothing whatsoever to do with all the non-trade aspects of Brexit. Those, of course, are the subject of another logic-free proposition, based on the same flaw, that of the ‘managed no-deal’.
Taking a stand
This time last year I wrote an outline of how we got into this mess, most of which still stands and I won’t repeat it here. Since then, much has happened. Most obviously, another year has passed. That is not a trite observation, because ever since the invocation of Article 50 the passage and press of time has been the defining reality of Brexit.
Equally obviously, Britain has not left the EU, with the deadline now twice extended. That too is not a trite observation, given both the Brexiter promises of how easy leaving would be – remember Boris Johnson, in December 2016, saying that 18 months would be “absolutely ample” for a “great deal” - and Theresa May’s adamantine insistence that 29 March 2019 would, incontrovertibly, be Brexit day.
The clock is still ticking, which continues to matter and is soon going to be what matters most again. The current hiatus of the leadership contest perhaps makes politics seem more normal than it is. For although such contests are not an everyday event they do have a familiar shape, allowing the media to obsess about the odds of the ‘runners and riders’ and to revel in the skulduggery of the candidates’ tactics.
Normality masks crisis
That apparent normality obscures the extent to which Britain is in a very deep crisis, completely scrambled by Brexit. That is doubly unfortunate because apart from being misleading it is also a missed opportunity. Arguably, for all that the contest is a squandering of the Article 50 extension, it could, just conceivably, have been a chance to finally begin to get real about what Brexit means. When Rory Stewart, the only candidate for the leadership who even partially tried to do this, was knocked out earlier this week any such realism departed.
Stewart’s realism was only partial in that, in effect, he was seeking to resurrect May’s deal without properly addressing how that would get through parliament in the absence of another election or another referendum. But at least he was raising the important point that the idea of a substantive renegotiation of the Irish backstop is a fantasy, as well as important questions about what no-deal Brexit actually means in practice.
With him gone, and the candidates now whittled down to Boris Johnson and Jeremy Hunt, even that small sliver of sense has departed. Their Brexit policies are not remotely realistic and differ only in that Johnson probably (though he has left himself the tiniest piece of wriggle room [£]) wants to leave the EU on 31 October come what may, whereas Hunt would be willing to countenance a short delay. Even that is enough to enrage the most extreme Brexiters, as Michael Gove found out on a radio phone-in today, when a caller (responding to his analogy for such a delay) said she would rather rip out her new kitchen, for want of the hob being delivered, than wait an extra couple of days.
But even if Hunt were to take the hardest of lines he would, in the new McCarthyism of Brexit, be forever damned for having once been a remainer. His ill-judged and distasteful ‘Soviet Union’ jibe at last year’s party conference did as little for his reputation amongst Brexiters as it did for his reputation full stop. Unless Johnson commits some massive gaffe – not impossible, by any means – Hunt has virtually no chance of being chosen by the Tory Party membership.
For a poll this week of that membership showed just how extreme a body it has become, with a majority willing to accept Scotland and Northern Ireland leaving the UK, significant damage to the economy, and even their party being destroyed so long as Brexit is delivered – and 46% of whom would be happy if Nigel Farage became their leader. There’s a need for caution in interpreting this – such responses could just be a way of signalling strength of feeling about Brexit rather than the actuality of what those responding would accept – but, even so, it is remarkable.
The revolution continues to devour its children
But what is actually even more remarkable is the fact that the state of the Tory Party precludes Hunt (or for that matter Stewart, Javid and Hancock, had they made it this far) becoming its leader. For, recall, even the ‘softest’ of them, Stewart, advocates a deal in which the UK leaves the single market and customs union without further negotiation (whilst the others, including Hunt, seek re-negotiation with no deal as a possibility).
At the time of the Referendum Stewart’s would have been described as a hard Brexit position. Yet, now, he is described as an “ultra remainer”. Even more remarkably, Michael Gove, one of the leading figures of the Vote Leave campaign, is regarded by the true believers as not being a true ‘Brexiteer’ at all. The obvious consequence of that claim, as Danny Finkelstein has pointed out, is that it means the referendum didn’t give a mandate for the Brexit of the true believers.
All of this is a further indication of the shift, discussed in my previous post, which has normalised no-deal Brexit as if it grew directly from the referendum result. Another version of the same claim is that because MPs voted overwhelmingly to trigger Article 50 this means that they voted for no-deal, because that is what happens at the end of the Article 50 period if there is no deal.
That is pure nonsense, not just because a deal was promised but because there are other possible outcomes (extension, revocation), and it was the previous parliament anyway. So it is quite dishonest to pretend there is either a popular or a parliamentary mandate for no-deal Brexit (and if Johnson or anyone else pursues it, there will be a major question of political legitimacy).
Same old lie, part 24
Honesty is in any case, as usual, in short supply. For the advocates of no deal have now brought to centre-stage the claim they have been kicking around for months, that GATT Article XXIV offers a pain-free way of doing no-deal Brexit. It is a new version of the original referendum lie, which has dogged the entire process, that Brexit can be easy and costless. Johnson made a blustering reference to it in the woeful TV debate last Tuesday, and the Ultras are pushing it as hard as they can. The claim is that Article XXIV would allow the UK to continue with tariff- and quota-free trade with the EU for up to ten years if there is an agreement that that is the ultimate goal, even if there is a no-deal Brexit.
Yet the logical flaw is so obvious that a not especially intelligent child could see it: Article XXIV relates to the implementation of an agreement in principle. If there is no such agreement, it is irrelevant. If there is a no-deal Brexit, there will be no such agreement. Therefore it is irrelevant. It’s also worth noting that, in any case, it would only relate to trade in goods, not services, and – which seems hardly remarked upon at all – it has nothing whatsoever to do with all the non-trade aspects of Brexit. Those, of course, are the subject of another logic-free proposition, based on the same flaw, that of the ‘managed no-deal’.
Taking a stand
None of this
is going to make any difference at all to Johnson’s near certain victory. So he
is going to have to find out for himself what is and is not possible and,
having done so, to decide whether he pushes on to no-deal Brexit. There are
already signs that the ERG
are wising up to the fact that he either does not understand, or is
not committed to, that. It’s probably both, as
trailed in my previous post. If so, once in office, he’ll lose ERG
support. If not, he’ll lose the other wing (which perhaps can now be called the
Stewarts?) of his party.
Either way,
he won’t be able to command a parliamentary majority for any Brexit position he
ends up taking without risking a General Election that might see him out of
Number 10 before he has unpacked. Or he’ll have to pivot to another referendum
and split his party that way.
Whatever
happens, it’s very hard to see anything other than a major political crisis
ahead because the one certainty – dictated by the time imperative if nothing
else – is that he will have to take a
position. Jokes
and bluster will not be enough nor will saying,
or allowing them to think he’s said, different things to different people.
And it
shouldn’t be forgotten that, deal or no deal, taking that position will only be
the beginning of months and years of negotiations for the leader of a fractured
party which, as Simon
Wren-Lewis put it this week, has “lost its battle with reality”. The
talk by Johnson
(and others) of “getting Brexit over the line” as if one way or another it
will be over by November is entirely fatuous.
In the
meantime, the Tory slide towards no deal makes it easier for Labour to shift
towards a pro-referendum policy. It shouldn’t, in principle, be a difficult
shift precisely because no deal was never what was promised. The difficulty is
a mixture of the pro-Brexit inclination of Corbyn and some of his closest
allies, along with a flawed
reading of what the referendum
result means for Labour heartland and target constituencies.
There
was talk of
definitive shift this week but in fact all that happened was another
constipated statement which largely
continues the ambiguity, although it is at least arguable
that Labour are inching towards what was always their politically
logical position (which doesn’t
mean it’s cost-free, perhaps especially now, after such long prevarication).
Still, it’s painfully, excruciatingly slow.
Strange days
indeed
That
slowness and, even more, the lingering weeks we are now going to have in which
we both know but don’t know the outcome of the leadership contest shouldn’t
blind us to the seriousness of the situation or to its outrageousness. It may
be repetitious, but it’s important not to take as normal just how grotesque
that situation is.
A small
majority secured on the back of a flawed campaign in 2016, in which electoral
law was broken, interpreted in an extreme form that was not endorsed by the
General Election of 2017, is now being used as a mandate for an even more
extreme and damaging version of Brexit. Our future will now be in the hands of
a man chosen by a tiny and extremist fragment of the population in 2019. He –
whoever of them it is - will have come to office claiming the right to do
something that was never put to the electorate – and indeed is the opposite of
what they were promised – and which is almost certainly
against the wishes of the majority.
These are
strange days, because they are both crisis-ridden and anticlimactic. Things
constantly happen, but nothing really changes. There’s an expectation of
something unlocking events, but it never happens. A kind of tantric Brexit,
perhaps, but with no expectation of pleasure to come.
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