Britain is slowly learning what Brexit means

Shortly after last week’s post about Brexit, Russia, and defence went up, the news of Alexei Navalny’s death was announced, and although its cause is still shrouded in secrecy it can hardly be regarded as an accident, if only because of the brutal regime obtaining at the ‘Polar Wolf’ penal colony where he was incarcerated. It was a further reminder of the nature of Putin’s regime, and the anniversary, tomorrow, of its unprovoked attack on Ukraine will provide another. That is even without considering the crazy threats last weekend from Russia’s former President and Putin ally Dmitry Medvedev that Washington, London, Berlin, and Kyiv would be obliterated by nuclear missiles if his country was forced out of Ukraine.

As I argued in that post, the combination of the Putin threat and a possible Trump Presidency is provoking renewed debate about, and possible progress towards, closer defence and security integration between the UK and the EU. It is telling that, just as I was writing it, the German Finance Minister even floated the idea of closer Anglo-French nuclear weapons cooperation, with financial support from EU countries, so as to develop a European capability (not that this week’s events have been much of an advert for Britain’s nuclear prowess). Shortly afterwards, that idea was alluded to by a close ally of Emmanuel Macron, on a visit to London to discuss the UK’s possible role in European defence more generally.

Nuclear defence integration isn’t in prospect, but that it is even being discussed is an indication of the seriousness of the situation, and the integrative logic of that situation. That logic was certainly on display last weekend at the annual meeting of the annual Munich Security Conference, which brought perhaps the strongest statement yet from Shadow Foreign Secretary David Lammy that a Labour government would seek a deep security and defence pact with the EU. At the same time, Valérie Hayer, who leads the Renew Group, the third largest bloc within the European Parliament, indicated strong support for a new defence treaty with the UK.

School for scoundrels

If growing threats are once more teaching the perils of isolation, passing the test will not be easy. Even without Brexit, a defence agreement would have been difficult and Brexit has made it harder. Hayer referred to such an agreement as having been spoken of in Theresa May’s time. That’s true, but it has a convoluted history, which remains important. When May submitted the letter triggering Article 50 in March 2017, there was a strong implication, much resented within the EU, that the UK would use its security and military capabilities as a bargaining tool in the exit negotiations. It’s worth recalling this partly because there is a tendency as time has gone by to depict May as (according to taste) the reasonable and pragmatic face of Brexit or, as Brexit Ultras would have it, unwilling to play ‘hardball’ with the EU.

In fact, apart from security, it was May and the then Chancellor Philip Hammond who threatened the EU with an ‘alternative economic model’ of aggressive tax cuts and deregulation if the UK did not get the kind of trade deal it wanted. Recalling this isn’t just a matter of setting the domestic record straight. It is directly relevant to the present because, although UK-EU relations are now generally better than they have been, there is still a legacy of distrust to be overcome which is not solely connected to how Boris Johnson conducted himself. Having never exactly been an easy partner even before the referendum, Britain came very close to making itself a pariah state in the years after 2016 and the memory of that, along with the spectacle of so many Tory MPs and their allies still obsessively demanding a cleaner break with the EU, as well as derogation from the ECHR, means that creating a new relationship of deep trust will not be easy.

May became considerably less antagonistic in tone in her September 2017 Florence Speech, to the extent that ironically, as I observed at the time, it sounded more like an explanation of why the UK should be joining the EU rather than of why it was leaving. As regards security, specifically, she was also notably diplomatic in her own speech to the Munich Security Conference, in 2018, although as I discussed then it continued to have some ambiguities. (By contrast, Boris Johnson, as Foreign Secretary, had used his appearance at the conference, the year before, to raise hackles by gloating about Britain’s “liberation” from the EU.)

However it was the Russian nerve poison attacks on Salisbury, just a couple of weeks after May’s Munich speech, which really brought home – literally – the fact that the UK needed European allies. That provided the background to the possibility of a deep security and defence pact that Hayer referred to, which was envisaged by the Political Declaration that accompanied May’s Withdrawal Agreement. But once Johnson came to power, he and David Frost proceeded to question its parameters and once again it was suggested, including by Nick Timothy, May’s one-time adviser who had been a key architect of hard Brexit (and, reportedly, had had an input into the Article 50 letter ‘threats’), that security and defence could be used as “leverage” to gain concessions on trade.

It’s not clear that any such concessions were achieved and, at all events, what emerged in the Trade and Cooperation Agreement was, as regards security, a “dialled down” relationship and, as regards foreign and defence policy, no agreement at all. It was really only the Russian invasion of Ukraine in 2022 which created an impetus to greater cooperation, but “the relationship remains unstructured”. As I argued last week, the continuing threat of Russia, plus the threat, and, if it happens, the fact, of a Trump Presidency – along with the advent of a Labour government – may well be a catalyst for a closer and more structured relationship. Certainly some Brexiters have become alive to that possibility, with the Telegraph’s Ambrose Evans-Pritchard (£) counselling that “if you want to keep Brexit, pray for a Biden victory” and a Spectator article warning (£) against attempts to ‘lock’ Britain into defence integration with the EU. It’s a reminder that however compelling the logic of cooperation, it will encounter opposition from the stubbornly unteachable, which in turn will undermine trust in the UK’s reliability.

Learning the facts of life  

Yet the logic is compelling, and exerts a remorseless pressure. The fundamental point concerns the interconnectedness of the UK and the EU, which didn’t cease to exist because of Brexit. It is an interconnectedness which takes numerous forms, certainly not just in relation to security and defence, but trade, supply chains, culture, education, science, and families. Some of that is to do with the simple fact of being in geographical proximity; some of it is because of the fact of the UK having been a member of the EU, or its predecessors, for almost fifty years, leaving a deep legacy of integration. Brexiters gave no thought to the implications of any of this, and seemed to imagine that many of the conveniences of membership would just carry on as before, despite leaving, whilst relationships with the rest of the world outside the EU, and perhaps even the social mores and values of life before the EEC, could just be picked up as if they had been pickled in aspic since 1973.

The consequence is that Britain is now a learner in the world that it created for itself with Brexit, and a very slow learner at that. The lessons of interconnected defence are being taught the most quickly because the Russian invasion of Ukraine was such a seismic event that even the dullest of pupils couldn’t ignore it. Similarly, galvanized by his self-imposed political imperative to ‘stop the boats’, Rishi Sunak is about to agree a deal, possibly to be signed today, to share information with Frontex, the EU’s border protection agency. It turns out that international irregular migration flows can’t be dealt with at national level, something underscored just yesterday by the news that Europol have dismantled a major gang involved in cross-channel people-smuggling. Who knew?

The same tutorials are being given in other domains. Reality just keeps intruding on Brexiter fantasies. Thus, despite some die-hard Brexiter bumptiousness, it has become obvious from impartial analysis that ‘doing our own trade deals’ is not just of virtually no economic value but is a lot more complicated than the early ‘sign up to anything’ approach that led to the agreements with Australia and New Zealand. At all events, UK trade remains strongly connected to the EU. The lessons about the interconnected nature of regulation are also gradually being learnt. Sometimes, as with the effective abandonment of the UKCA mark, it happens through the laborious process of trial and error. Sometimes, as with this week’s news that UK officials are lobbying the EU to tighten its financial services regulation, it happens through the belated realization that what the EU does actually has a huge effect on Britain and, in this particular case, that robust regulation serves a useful purpose. Once again, who knew?

Cookery lessons

A currently widely-reported example of these dawning realities is Rishi Sunak’s sudden attention to food security, and his newfound interest in farming generally. Much of that interest is no doubt motivated by widespread reports that Tory support in its rural English heartlands is imploding, many of the roots of which lie in Brexit, in (at least) four ways.

First, there is the issue of the increased barriers to trading with the EU, which have added substantial costs to UK food exports, with more costs to come with the introduction of full import controls this year. Second there is the adverse impact on farmers of the new post-Brexit trade deals. Third, there is the impact of freedom of movement of labour having ended. And, fourth, there is the continuing saga of the replacement for the EU’s Common Agricultural Policy (CAP) system of payments and support. Clearly all of these are inter-related, as the problems faced by farmers reduce UK production, thus aggravating food insecurity (something also brought into focus by the Ukraine war), and, alongside the increased costs of trade with the EU, this contributes to food price inflation and supply disruptions for consumers.

The replacement of CAP is a particularly sorry story. Here is something which was the bête noire of British Eurosceptics since the 1970s and so the one area, above all, for which they should have been prepared for when they finally achieved Brexit. Instead, the introduction of the confusing Environmental Land Management Scheme (ELMS) was botched and chaotic, leading to endless reviews and delays, changes, and much of the promised financial support has never materialized. Even by Brexit standards it is a convoluted story, but the basic fact is that there is still no fully-functioning replacement for the CAP, or even any strategic clarity about whether the aim is to incentivize food production or countryside stewardship.

Computer club

If farming and food security is a case study in post-Brexit Britain’s slow schooling in reality, it also provides illustrations of one of the most significant, if least discussed, aspects of the theme of interconnectedness. A recent article by TC Callis in Kent and Surrey Bylines, discussing the introduction of import controls, drew attention, amongst other things, to how Brexit deprived the UK of access to relevant EU databases. It is a point I have stressed repeatedly in the past, but one which rarely features in media coverage of the issue. Indeed, even now, reports of the dangers of food crime under plans to shift testing facilities from Dover to inland Sevington ignore this issue. But Callis explains how food crime and other risks have been exacerbated by loss of full access to the EU’s Rapid Alert System for Food and Feed (RASFF) and, as I’ve pointed out before (although I failed to mention RASFF), there is a whole ecosystem of databases in this sphere, including the EU’s Animal Disease Information System (ADIS) and Trade Control Expert System (TRACES), to which the UK no longer has full access.

Such issues of data-sharing are part of the crucial, if unglamorous, infrastructure which, along with much regulatory infrastructure, keeps daily life going. A litter of acronyms, they are like the hardware and software of the computers we all use but which few people know or care about so long as they work. In the economic sphere, it is lack of access to the EU REACH database that has meant the UK having to develop a separate system, increasing costs in the chemicals industry*, and the Carbon Border Adjustment Mechanism (CBAM) is set to be another (as discussed in previous posts). In both these cases, linkage of the UK and EU databases may well be the ultimate outcome, underlining both the pointlessness of duplication as well as the persistent logic of integration and interconnectedness  

In the policing and criminal justice sphere, as with food and diseases, there is a complex EU eco-system of which the UK is no longer a part even though, of course, crime and other security threats to the UK are not confined to national borders. So we remain connected to Europe as regards these threats, but at best semi-connected as regards the means of meeting them. Thus some cooperation, albeit on reduced terms, continues, for example with EUROPOL and EUROJUST, but the UK has lost access to the Schengen Information System II (SIS II) and the European Criminal Records Information System (ECRIS), significantly undermining policing.

Notably, it is database access which is central to the deal, mentioned above, that Sunak is doing with the EU over cooperation with Frontex, notably the European Border Surveillance System (EUROSUR). However that has another implication, which also applies to those EU security databases - like DNA, criminal records, fingerprints and air passenger lists – to which the UK has already negotiated post-Brexit access: it makes it highly unlikely that the UK could abandon the data protection standards of GDPR**. So, in this sense, interconnectedness in one domain begets interconnectedness in others.

Messy work

What we are seeing across all these areas, and many others, is therefore a very complex and untidy picture, which is almost impossible to summarise, or to characterize in any one way. It consists of a series of ad hoc accommodations, sometimes entailing duplication (e.g. UK REACH), sometimes entailing piecemeal deals with the EU (e.g. EUROSUR), sometimes simply meaning loss of functionality or capacity (e.g. SIS II). It should not be forgotten that all of these accommodations come at a financial cost, fragmented in ways which make it impossible to quantify, all of which used to be rolled into the UK’s budgetary contribution to the EU, in return for which we used to have full access to everything rather than to a jumble of patches.

To add to the complexity, almost none of these issues are static, with new systems – whether they be data management systems, regulatory systems, or sector-specific systems like farming support – being rolled out, each with varying transition or implementation periods. Likewise, to the extent that these developments involve recalibrations and redefinitions in particular aspects of the UK-EU relationship, they are also evolutionary rather than static. It is obviously also the case that the pace and scale of change in any particular area varies according to economic or political exigency, which is why the case of defence has a particular momentum just now, but they are all in flux to some degree or another.

But for all that the overall picture is messy and hard to characterize, in almost all cases the direction of travel is the same in pointing to integration. The well-documented tendency to non-divergence in regulation is an aspect of that, but non-divergence really only codes continuation of existing integration. The wider picture is one of closening relationships with the EU, either in the sense of reversing some of the distances initially created by Brexit (e.g. the Frontex deal or, not discussed in this post, rejoining Horizon), even if in clumsy or sub-optimal ways, or in the sense of moving to a greater degree of integration than existed even as an EU member (defence being potentially by far the most important example). For Brexiters, all this betokens the failure to ‘do Brexit properly’, but what it really shows is the failure of Brexit as a concept, or at least as a realistic policy.

A slow and unwilling pupil

There have been many faces of Brexit over the years. The gurning anger of Farage. The blustering buffoonery of Johnson. The psychotic glitter of Braverman. The vapid pipsqueakery of Grimes. The blokeish thuggery of Banks. The creepy unctuousness of Gove. The mad narcissism of Cummings. The born-again zealotry of Truss. The porcine truculence of Frost. The smug spitefulness of Rees-Mogg.

They all still exist, but the dominant image, now, is that of a lumpen, sulky, schoolboy dullard. Kept in for an umpteenth detention, tongue-between-teeth, he ponderously repeats the basic textbook exercises that his juniors mastered long ago, and with painful slowness comes to realize that the things his teachers had been trying to drum in to him for years past are, indeed, true.

 

*Some of these costs have been reduced by recent government changes to the UK REACH system, although, as is typically the case with regulation, this involves trade-offs in terms of creating higher levels of risk.

**Were the UK to do so, the EU would almost certainly withdraw recognition of the UK data protection system, and that would have the effect of locking us out of those EU databases to which we still have full access, as well as having profoundly damaging consequences for the commercial use of data. It remains an open question whether the measures in the current UK Data Protection and Digital Information Bill will constitute sufficient divergence from EU GDPR to lead the EU to revoke its 2021 adequacy decision about the UK regime.

Punch-drunk Britain

I don’t purport to provide anything like a comprehensive weekly record of reports of Brexit damage – fortunately the indefatigable Anthony Robinson curates the closest thing there is to that with the Davis Downside Dossier – which some weeks would be almost a full-time job. It would also be a heartbreaking one, partly because behind many of them lie lives disrupted if not devastated, partly because of what this damage means for all of us, and partly because it was all so predictable but the warnings were ignored with the mocking parrot cry of ‘Project Fear’. It is heartbreaking enough to discuss just some of them, which keep coming like punches on a bruise.

The latest punches

In this week’s crop, there is the record level of Foreign Direct Investment (£) – no, not in the UK, in Germany, and partly driven by a surge in UK investment projects as companies seek to maintain a foothold in the single market. It is the latest evidence of what was bound to happen, even if only at the relatively minimal level of UK firms setting up companies and sometimes offices in EU countries to avoid the extra bureaucracy of Brexit – as advised, in a sub fusc governmental recognition of the damaging reality of Brexit, by the Department for International Trade in 2021. So far as the bigger overseas investment projects are concerned, it can only be assumed that these are at the expense of domestic business investment, which was recently estimated to be £29 billion less than it would have been since the referendum result.

To refer to the next story as one this week’s crop of damaging Brexit news would be a bad pun, for it is the report that the value of UK exports of fruit to the EU have dropped by more than half since the end of the transition period. It’s not a coincidence, and it has persisted post-pandemic: it is because of the new regulatory and customs barriers created by Brexit. This, of course, is just one of the many examples of the adverse effects and risks for British farming post-Brexit.

Another newly emerging example affecting food producers and retailers is the one I mentioned last week, namely the requirement for all UK-produced foodstuffs, including vegetables, fish, meat and dairy produce, sold in the UK to be marked ‘not for sale in the EU’. It has since been reported that this may entail four labels (£) (on the individual product, the packing case, the supermarket shelf, and posters). As I explained before, this arises from the requirements of the Windsor Framework, but is being applied UK-wide, rather than just in Northern Ireland, partly to reduce the costs of different labelling as between Great Britain and Northern Ireland, and partly for the political symbolism for unionists.

I noted then that Brexiters are furious about this, but subsequently I’ve seen multiple comments on social media, apparently from non-Brexiters, saying that this labelling obviously means that the produce is not of a high enough standard to meet EU requirements, and that they would therefore be wary of consuming it. This is not necessarily so, and in most cases won’t be so, but it is an interesting misunderstanding as it is the mirror-image of the Brexiters’ complaint that there’s no reason why UK produce should not be sold freely into the EU as it continues to meet the same regulatory standards.

Both misunderstandings go to the heart of what the single market means, and what being outside of it means. The issue isn’t the standard of the product or the product standard, as such, it is about being part of a common system of standard-setting and standard certification to demonstrate compliance, as well as a legal system to enforce it and provide redress for breaches. The UK has chosen to be outside of that system, because it wants the freedom to set its own standards and regulations, and that puts UK products outside of that system even if the actual standards and regulations have not changed. It's true that maintaining the same standards is still advantageous, since, albeit with different labelling in the case of food, the product can then be sold in the UK or sold to the EU, but if sold to the EU it will be as an export into the single market, after going through regulatory and customs checks, rather than sold freely within the single market.

As regards foodstuffs, in order to ease the Northern Ireland situation (though it would have benefitted the whole of the UK), in 2021 the EU actually offered a deal on Sanitary and Phyto-sanitary (SPS) standards whereby UK produce could effectively be treated as if it originated within the single market, but only if the UK agreed to ‘dynamic alignment’ i.e. not just following existing EU SPS standards, but changing in line with them, as they changed. The UK rejected this as not being compatible with ‘sovereignty’, and also as potentially preventing it changing SPS standards, perhaps in order to secure a trade deal with the US.

The latter looks extremely unlikely now and was a bogus reason anyway, as the EU offered a temporary dynamic alignment deal which could have been ended if and when the UK ever did change standards. The former is simply theoretical, unless or until the UK actually does change standards, and one cost of that theory is that food of an identical standard to that required by the EU must be marked ‘not for sale in the EU’. It is the cost not of divergence, but of retaining the right to diverge.

This is the madness* that not just hard Brexit but the Johnson-Frost ‘sovereignty-first’ Brexit has brought us to. It is most visible with food, because it is an everyday product, but in various ways is present in other sectors (e.g. chemicals firms having to register with the UK REACH regulatory system which, in the government’s words, “replicates the EU system as closely as possible”, at an estimated additional cost of £2 billion). And, by the way, the cost of ‘not for sale in the EU’ labelling will be even greater if large numbers of British consumers do, indeed, mistakenly conclude that British food marked in this way is sub-standard, and decide to buy imported alternatives, perhaps from EU producers.

A coming punch: import controls

All of this will begin to be introduced from October 2023, although the exact details have still to be decided, adding uncertainty to all the other problems. That date is also when we will finally see the beginning of the much-delayed imposition of UK controls on imports from the EU. Again, there’s quite a bit of misunderstanding in all quarters about this.

One is that many people are under the impression that this has already happened – hence, for example, the rash of stories about UK customers having to pay import duties on goods delivered from the EU that started immediately after the end of the transition period. But the point is that hard Brexit created (or re-instated) two kinds of ‘border’ (I put it in speech marks, as it doesn’t necessarily refer to a physical border, but also to the processes and formalities of border control). One is a regulatory border, by virtue of leaving the single market, and the other a customs border, by virtue of leaving the customs union. The latter was erected by both the UK and the EU from the outset, and is what gave rise to those stories (it is more complicated than that, as it was also do to with VAT: for more details on this, and the more general issue of what happened immediately after the end of transition, see my post of January 2021).

The former, the regulatory border, was erected by the EU but not the UK (again, it’s more complex than that, as UK checks on certain “high-risk” products did begin in January 2021), and doing so was delayed four times, most recently in April 2022. On that occasion, the minister responsible was Jacob Rees-Mogg who, in a rare moment of candour, admitted that Brexit does indeed involve substantial costs. He estimated that completing import controls would add another £1 billion a year to the costs of British business and, although he didn’t spell it out, this also implicitly admitted that there are costs in the other direction, as a result of EU import controls.

Another persistent misunderstanding (and it is a variant of the one about what ‘not for sale in the EU’ means) is that not having full import controls doesn’t matter because EU goods conform to high standards anyway. That’s a fallacy, for reasons I explained in detail in yet another previous post, in April 2022, of which perhaps the biggest is that, as a result of Brexit, the UK no longer has access to the EU early warning databases, for example for outbreaks of animal diseases or food contamination.

But underlying that fallacy is something much deeper, and it was perhaps the central delusion of Brexit, which is the way that Brexiters seemed to envisage leaving the EU as a kind of ‘symbolic act’ in which nothing needed to change. In this particular context, that is reflected in the common Brexiter comment ‘if the EU want to erect borders that’s up to them’, as if there were no concrete meaning to leaving the institutions that got rid of borders, or needn’t be but for ‘EU protectionism’ (Rees-Mogg, inevitably, furnishes a good example of this fallacy).

This total ignorance (which, by the way, is also an ignorance of the ‘WTO rules’ that so many Brexiters used to get so moist-trousered about) isn’t just a matter of this or that comment by Brexiters trying to score debating points. It went right to the heart of government policy so that, astonishingly, it was not until February 2020 – that is, over three years since Theresa May finally confirmed that Brexit meant the hard Brexit of leaving both the single market and the customs union – that a government minister, Michael Gove, officially confirmed that this meant there would be import controls on EU goods.

Undoubtedly it is this, along with the paranoid rush to get Brexit done as quickly as possible, including the refusal to extend the transition period, which explains why, unlike the EU, the UK wasn’t ready to introduce import controls in January 2021. Even now, their introduction is reported in both the Telegraph (£) and the Mail as being a ‘blockade’, rather than the inevitable consequence of the UK’s own decisions.

However they are described, their introduction is likely to prove as big a shock as the EU’s introduction of controls did. Again, fresh produce, including meat and dairy products, will be most affected, with shortages likely initially and, in the longer-term, higher prices and reduced choice for consumers. So this isn’t some obscure technical change but, to use another unfortunate pun, a literally bread-and-butter issue which will affect daily life. A report this week from the LSE’s Centre for Economic Performance estimates that of the 25 percentage points rise in UK food prices between December 2019 and March 2023, eight percentage points are attributable to Brexit (i.e. about 30% of the total rise). It is an astonishing finding, and, as the authors, explain, it is the result of increased non-tariff barriers (the things which David Frost airily dismissed as “exaggerated”, and which Boris Johnson dishonestly said were abolished by the trade agreement with the EU) meaning, primarily, EU import controls. 

The introduction of full UK import controls will, by definition, further increase those barriers. And, for all the government’s boasts that this will be a high-tech, “world-class” border, the reality, according to Shane Brennan (£), the Chief Executive of the Cold Chain Federation, will be “a step back to the 1950s in terms of the types of supply chains options we have, in terms of getting hold of goods from Europe”. Nor will it just affect what we eat. For example, gardeners have been warned by the Horticultural Trades Association that they, too, will face higher costs and less choice, and that this industry alone will face an added “£42 million a year in red tape … for no economic gain”.

A rabbit punch to watch for: data protection

The introduction of import controls has at least received quite a bit of media coverage. That is less true for something potentially very nasty lurking in the undergrowth: the Data Protection and Digital Information (No. 2) Bill. This again has a long history, made more complicated by the churn of ministers responsible for it. 

Very early on in the Brexit process the UK passed that 2018 Data Protection Act and when it was still in development I discussed it as an example of how, in practice, post-Brexit regulation would follow that of the EU. That proved true, and is the reason why the EU has accepted UK regulation as “adequate”, meaning “essentially equivalent” to EU GDPR. However, this is subject to periodic review and renewal, with the current adequacy rulings due for review in 2024 and possible renewal when the current period for which adequacy is granted expires in June 2025. Moreover, in the interim, the UK’s provisions are monitored by the EU and, if found to lack equivalence, the adequacy decision can be revoked earlier. The implications would be profound, as, without adequacy, sharing of personal data between the EU and UK for commercial and security purposes would be severely curtailed.

Nevertheless, Brexiters have always regarded divergence from GDPR as a ‘prize’ of Brexit, and the new Acting Minister responsible for the latest Bill is John Whittingdale, an arch-Brexiter. Last month, he stated that it would not be “a complete disaster” to lose EU adequacy, referring to various work-arounds that would be possible. It’s a mark of how low Brexit ambitions have been set that ‘not a complete disaster’ apparently now counts as an acceptable benchmark. It is also worth considering what that actually means: industry insiders estimate that losing adequacy would cost between £1 billion and £1.6 billion a year and, beyond that, there would be the cost, perhaps in lives, because of the impact on data sharing in relation to serious crime and terrorism which the adequacy ruling allows.

Punching ourselves in the face: student visas

It remains to be seen what will happen in terms of the detailed provisions of the new Bill, and perhaps Rishi Sunak’s ‘pragmatism’ will prevail. Yet that pragmatism looks increasingly flaky. Last week I alluded to how the expectation of record high net migration figures (now announced) was re-energizing Brexiters’ discontent, and one consequence has been the government’s announcement this week that overseas postgraduate students on taught courses will no longer be allowed to bring their families with them. Inevitably that means that at least some of those who would otherwise have come to the UK will go elsewhere, in what is a highly competitive market for such students. Why, if you want to study abroad without being parted from your family, come to the UK now?

It is a wretched policy, at multiple levels. It is directly economically damaging, in terms of the loss of fee income to what is one of the UK’s few thriving sectors, and the loss of the general expenditure of those students and their families – a loss that will be felt by everyone from taxi drivers to food stores – often in areas where the local economy is fragile. It damages university finances, when universities are held, rightly, to be central to Britain’s economic future. It is a loss of the intellectual and cultural contribution of those students to university life. And it is a loss to UK ‘soft power’ – all those students and their families who might look back on their time in the UK with affection and pride, and act as ambassadors for the UK in their home country, who will now do so for another country. It seems that the Labour Party don’t care about any of this, either, since they support this cretinous policy.

Its architect is Suella Braverman, who has been in the news for other reasons this week, namely her handling of a speeding offence. That wouldn’t be a Brexit story except in the general sense that it is unlikely that, were it not for Brexit and her zealous support for it, someone of such mediocrity would be holding high office. But it has been made so by Brexiters absurdly insisting (£), as they did of Dominic Raab’s resignation, that Braverman is being targeted by the ‘Woke Blob’ for being pro-Brexit (and generally ‘right-wing’). That is now also being run together with attempts to depict (£) the continuing scandals surrounding Boris Johnson as victimization at the hands of those the ever-puerile Rees-Mogg calls “highly-strung remainiacs”.

It is all of a piece with the paranoid victimhood that runs through Brexit, and it would be laughable if it were not so deforming of political discourse, not least in striving to keep politics forever in the toxicity of the post-referendum period. That is damaging in itself, but in turn contributes to the additional damage of making it is so politically difficult to address the realities – the lost investment, the lost trade, the rising prices, and all the other things – of what Brexit is doing to our country.

Punch-drunk Britain

I increasingly wonder and worry about how much more incremental damage can Britain take. Each individual example isn’t necessarily so terrible. Each can be, and is, argued away by Brexiters as overstated or ‘not a complete disaster’. A billion pounds here, ten billion there – big numbers, for sure, but not overwhelming. But it is the cumulative impact which is so alarming, and the way it is ripping through every sector of the economy, from cars to farming, from higher education to financial services, from social care to live music.

Brexit Britain is increasingly like a punch-drunk boxer. Once a world champion, age and booze and drugs have taken their toll. But he decides to enter the ring again. He’s still a big name, of sorts, though not as big a name as he thinks. Once he fought in the big arenas, but now he takes on all-comers at country fairs. Flame-eyed, porcine, puce-cheeked, he brags that he can take any punch thrown at him and, it’s true, he has enough residual strength to absorb a certain amount of punishment, and even to trade the odd counter-punch. But each blow takes its toll, each adding a fresh bruise to a dull bruise to form a livid, purpling mass.

He stumbles and flails, an ugly, humiliating sight even to those who once admired him. Many of those watching never wanted him to come out of retirement, and even more now wish he hadn’t. But others, smaller in number but loud in voice, endlessly re-watch videos of the glory days, and insist that, even now, he is only being brought down by the doubters. The metaphor is wrong, though, in that the boxer isn’t external to us, but is all of us: we are all the Brexit-bruised flesh. And the punches are not those of some antagonistic bully but self-inflicted by our own body politic.

*It actually gets even madder and more absurd than I have presented it here, because although rejecting the offer of ‘dynamic alignment’ the UK did propose a ‘regulatory equivalence’ deal (see my post of May 2021 for more detail). This isn’t just arcane past history, and may yet come back to prominence. The two different approaches are sometimes referred to as ‘Swiss-style’ and ‘New Zealand-style’, respectively. Labour have said that they would seek an SPS agreement with the EU if they come to power, but in doing so have mentioned New Zealand, but not Switzerland (e.g. Shadow Chancellor Rachel Reeves in June 2022). Unless this is just down to not understanding the issue, then it will be a problem, as the EU have already rejected, and will never accept, a New Zealand style regulatory equivalence approach.

The non-drama that could become a real crisis

Having last week written some thoughts about the next six years of the Brexit process, this week has had a distinctly ‘back to 2019’ feeling about it with the passing of the second reading of the Northern Ireland Protocol Bill (NIPB) in the House of Commons on Monday.

On the one hand, this is the legislation which would unilaterally rip up the Protocol that – it is hard to overstate the sick absurdity of this – in 2019 Boris Johnson’s government claimed to be a negotiating triumph that would ‘get Brexit done’, but which it now regards as totally unacceptable.

On the other hand, it is almost as if we were back to the parliamentary dramas of 2019, and all the gripping debates and votes of that extraordinary year. Almost, but not quite. For one thing, the government has a sizeable, albeit surprisingly brittle, majority. For another, the event was fairly low key. Foreign Secretary Liz Truss’s opening speech trotted out the predictable justifications for this unjustifiable Bill, with no glimmer of responsibility let alone contrition for the government having agreed the Protocol in the first place, and for the most part the debate followed equally predictable lines.

Yet, undramatic as the debate generally was, we might once have thought it remarkable that a former Prime Minister – Theresa May – should, with clinical accuracy, tell the government of her own party that its proposed legislation broke international law. Nowadays, though, so debased has the government become that it hardly elicits a passing headline. After all, it’s less than two years ago since the government itself quite openly announced its willingness to act illegally when the Internal Market Bill (IMB) was proposed. And, for all her ire, May herself did not feel sufficiently incensed to vote against the government, merely, along with a handful of other Tory MPs, to abstain.

The current NIPB situation

There are several possible interpretations of the current situation. One is that the second reading of the Bill is not the crucial moment. It has to go through many more stages, including what is likely to be substantial opposition in the House of Lords, before it becomes law. So May and other Tory critics of the Bill will have their chance to strike later. Another view is that, by contrast, when the objection is so fundamental as to regard the legislation as breaching international law it behoves its critics to oppose it wholeheartedly from the outset. It’s not as if any conceivable amendments could make it acceptable when the very principle of the Bill is objectionable.

On this point, it’s worth recalling that, throughout the entire Brexit process, Tory MPs on what might at different times have been variously called remainers, soft Brexiters, pragmatists, One Nationers, or semi-sensibles have been far, far less ruthless and less willing to rebel than their ERG counterparts. It used to be said that ‘loyalty is the Tory Party’s secret weapon’, but in recent years, if that has had any truth at all, it has only applied to the more traditional backbenchers. It hasn’t been true of the ERG, whose loyalty is solely to their own ‘party within a party’ and its priority of an ever more extreme position on Brexit. On this occasion, the ERG’s ludicrous ‘Star Chamber’ has signalled satisfaction (£) with the proposed legislation – as well it might, since it goes well beyond what even David Frost had been considering – but no one can doubt that, were it not satisfied, the ERG would act en bloc to vote against the government without any hesitation. That matters for what may be coming next, which I’ll return to.

A third interpretation is that potential Tory rebels like May will go along with the legislation in the expectation that, during its passage, some deal will be done with the EU so as to obviate the need for it, as happened with the illegal clauses of the IMB. Or, a different version of a similar idea, that they will accept it being passed in the expectation that its powers won’t be used, with a deal being done with the EU post-enactment, or perhaps that they will get it amended to require a further 'meaningful vote' (back to 2019 again!) to be held before its powers can be used.

On any interpretation there’s some way to go, because it may take the rest of the year to pass the legislation. But at some point during or after the passage of the NIPB there is a real possibility of this going very badly wrong, not just for Johnson and his government, but for the country.

As many analysts, including, most eloquently, Anton Spisak of the Tony Blair Institute, have pointed out, several of the proposals in the NIPB – notably those on so-called ‘dual regulation’ (i.e. NI firms choosing whether to produce and/or import goods which conform to either UK or to EU regulations) and on governance (i.e. removing almost all ECJ's role) – are simply unacceptable to the EU (and also opposed by Northern Irish business groups). Moreover, the NIPB mechanism of threatening unilateral changes removes all goodwill, as well as being seen as undermining the international order and the Western alliance at a crucial time. As Maros Sevcovic said in answer to a question this week “we are not going to negotiate when you have a gun on the table”. Indeed there are clear signs that both the EU, and key member states including Germany, have simply run out of patience with Johnson's government.

Thus, although the EU will continue to negotiate on the implementation of the Protocol, the NIPB has made it even less likely that it will agree anything even close to what the UK wants.

Johnson is backing himself into a corner

That would leave Johnson with only two options, neither of them good. If, either during or at the end of the NIPB legislative process, he climbs down with the EU, having incited the expectations of the ERG, his premiership is probably finished. It has to be understood that the Brexit Ultras have never accepted the need for, or legitimacy of, the Protocol or, in some cases, for any Protocol. They believe, I think genuinely, that the Protocol was going to be ditched and will hold Johnson to what he seems to have promised them, or at the very least allowed them to believe, about doing so. For that matter, Truss, now a sort of born-again Ultra, claims that she had only endorsed the original Protocol in the belief it would be changed. However, if Johnson pushes on to both pass and make use of the NIPB, perhaps ultimately leading to a trade war or at least significant EU retaliation, he might also be finished off by the other wing of his party.

What happens following either of those two scenarios is speculative, but would very likely be a leadership contest that could almost certainly only be won by a hard-line candidate promising to continue the battle with the EU to scrap the Protocol. In this sense, it would be wrong for decision-makers in the EU to view the current situation simply in terms of the travails of Johnson’s leadership: these are merely a particular manifestation of the continuing dynamics of the Tory Party and of Brexit itself, albeit given an extra twist by Johnson’s own character and conduct.

Admittedly it’s possible that there is a third scenario in which, as so often with Johnson, he finds some way of clinging on – it’s already notable the extent to which he’s using Ukraine as a life raft – and that he finds some fudges over the Protocol that enable him to keep going. For example, some version of the UK’s red and green lane proposal might conceivably be agreed, as it’s not a million miles from the EU’s ‘express lane’ proposal. But not only does that fall well short of what the NIPB says is vital, and what the ERG will continue to demand, it is also in itself unacceptable to hard line unionists (nor is it seen as workable by business groups).

So what is more probable is that, as has always been incipient in the Brexit process, this will be the point that the force of the Brexit Ultras’ unrelenting demands will finally collide with the unmoveable object of the core needs of the EU. If that is so, then not just the government but the country itself will be in a horrible mess, both economically and politically.

At the moment, what is happening with the NIPB probably doesn’t interest voters very much except in Northern Ireland (and, there, only 38% agree that unilateral action by the UK, as entailed by the NIPB, would be justified*), although as a new post on the LSE British politics blog argues, the Protocol and what happens about it has a direct and significant impact on Wales, and its ports especially. But as the NIPB process develops it may well, and certainly ought, to begin to register with a wider section of the public across the UK that Brexit was not ‘done’ in 2019-2020.

Similarly, whilst the NIPB has already caused the EU to commence/recommence legal actions and, perhaps more seriously, further delayed UK access to the Horizon programme, these things don’t directly impinge on the public. But if the NIPB is passed, and even more if it is used, then the UK is likely to face escalating economic sanctions. And though it’s likely that any significant retaliations from the EU will create a media-stoked bellicose nationalist backlash, it must also be likely that large swathes of  the public will conclude that Britain, whose “battered economy is sliding towards a breaking point” according to a Bloomberg article this week, simply can’t afford year after year of Brexit aggravation solely to satisfy the insatiable desire of the Brexit Ultras.

The government has created an ‘Irish quadrilemma’

The other aspect of the mess that is in prospect relates to the politics of Northern Ireland itself. The Protocol was never acceptable to the DUP and many other unionists, and it is sheer dishonesty on the part of the government to pretend that it did not know this when it created it, or that unionist opposition is some kind of unanticipated peril. But, whether the DUP liked it or not, the Protocol was an international agreement and as such did not require cross-community consent to create it. Nor does the periodic consent mechanism, with a vote in the Northern Ireland Assembly (NIA) on whether to continue with the Protocol, require cross-community consent, only the majority support of its members.

That it involved agreeing something which both he and Theresa May had said no Prime Minister could agree to is one of Johnson’s many shameful acts, the more shameful as it is clear that he never intended to stick to it. But what has happened since is in some ways even worse. For ever since the DUP’s refusal to take part in the power-sharing institutions following the NIA elections, the government has been pretending that cross-community consent to the Protocol is required, as part of an attempt to claim that it violates the Good Friday Belfast Agreement, even though at the time of creating the Protocol in October 2019 Johnson explicitly said the two agreements were "fully compatible" making specific reference to there being no need for cross-community consent.

In consequence of having now done a 180 degree turn on that position, if the UK and the EU don’t now agree something that satisfies the DUP then a continued or renewed boycott of power-sharing has been legitimated. And it’s unlikely that any outcome agreed with the EU will satisfy the DUP, because, whilst the DUP opposes the Protocol in its entirety, it has, as its latest publication on the subject shows, got no proposals for what to put in its place other than “free and unfettered trade within the United Kingdom” which is unachievable under Johnson’s Brexit. Moreover, if only for electoral reasons, the DUP is unlikely to accept any agreement because of pressure from the even more hard-line unionist groups.

The other side of this is that, even if there were any agreement between the UK and the EU which coaxed the DUP back into power-sharing, it would very possibly be unacceptable to the nationalist and non-aligned parties and their communities which, broadly speaking, support the present Protocol or at least a relatively unchanged version of it, and reject the approach of the NIPB. So what if they, and specifically Sinn Fein, then say that they won’t participate in the power-sharing institutions because this agreement, whatever it is, does not have the cross-community consent that the government have now set up as a requirement for it to be acceptable?

Thus the ludicrous – but not funny – situation has been set up whereby, in broad terms, those who don’t want Brexit itself (which of course had no cross-community consent) but who, given it happened, support the Protocol are now pitted against those who did want Brexit but don’t accept the consequences that led to the Protocol – and each side has been handed a veto by virtue of the government having opened up cross-community consent as the necessary condition for the post-Brexit arrangements.

To put it another way, ever since 2017 Brexit has been impaled on the hook of the ‘Irish trilemma’: the fact that, out of the triad of hard Brexit, an all-UK Brexit, and no Irish land border, only two were possible. Johnson’s ‘solution’ was to forgo an all-UK Brexit, by creating an Irish Sea border. It wasn’t a very good solution, but it’s the one the government chose (albeit lying about what that meant). Yet, bizarrely – except from the perspective of those Brexiters who never understood, or accepted, the trilemma – it has ever since tried to undermine it. As a result, through its own folly with the NIPB, the government is now in the process of creating a kind of ‘quadrilemma’ by, effectively, creating a choice between an Irish Sea border and Northern Ireland devolved government.

An emerging crisis

We’re not quite at the point where that choice has to be faced up to. It’s possible that Parliament will avert the folly of the NIPB and, somehow, a way will also be found to bring the DUP back into power-sharing despite this. And it’s conceivable (though barely so) that some kind of version of the Protocol and Irish Sea border will be agreed that satisfies the EU and the ERG, and is acceptable to all sides in Northern Ireland. But there’s no point in denying that the ingredients for multiple and interlocking crises now exist: a crisis in UK-EU relations with consequent crises for the UK economy and for the UK’s international reputation, and a crisis in Northern Irish politics with, very possibly, a crisis in the UK-US relationship as a result.

So the rather undramatic events in parliament this week may well come to be seen as the start of these crises. But, in fact, they started when the hard Brexiters embarked upon their vandalistic project not just in ignorance of what it involved, but proud of that ignorance, and sneeringly dismissive of those who warned them of its dangers. The likely consequences of the NIPB are only one part of the damage now visibly unfolding as a result of this vandalism. Other examples are the growing impetus in calls for Scottish independence (which may or may not be damaging to Scotland, but would certainly be damaging to the UK), and, it should never be forgotten, the continuing pain of EU citizens in the UK.

That’s even without mentioning the economic damage already accrued and still to come, as discussed many times on this blog, for which the latest evidence (£) is the release of official figures showing the worst quarterly balance of payments deficit since such figures were calculated in 1955. That economic damage may become even greater than expected if the government continues on Nadine Dorries’ planned path of divergence from EU GDPR rules, which may well lead to the UK losing EU recognition of the adequacy of its data protection regime, whilst entailing a double regulatory burden for UK firms trading with the EU.

Similar problems may attend other divergences (£) emerging from Jacob Rees-Mogg’s ironically mistitled ‘Brexit benefits’ portfolio, whilst his decision to postpone the introduction of import controls has prompted fresh expert warnings of the “significant risks” to food safety this week (for explanation of the little-understood reasons why this is so risky, see the relevant sections of my post in April). Predictably, Rees-Mogg dismissed these warnings with a flippant tweet. That things so important to the country’s well-being should be in the maladroit but fanatical hands of circus freaks like Dorries and Rees-Mogg, who but for Brexit would surely never have had sight of, let alone got hold of, the levers of power, must itself be counted as one of the costs of leaving the EU.

Overall, as the latest round-up by Yorkshire Bylines’ indefatigable Brexit commentator Anthony Robinson shows, there’s now a growing consensus that Brexit ‘isn’t working’ even if there’s no consensus on why – hard line Brexiters, inevitably, ascribe it to betrayal – or on what to do about it. It seems that the ‘Brexit of small things’, to use the term coined by Tom Hayes, may be beginning to bite, with a new survey showing some 45% thinking Brexit has made daily life worse and just 17% better (34% think no difference). That shows an interesting shift from a year ago when the figures were 30% worse, 10% better and 56% no difference, which might suggest that as people have more experience of Brexit effects, those experiences are twice as likely to be seen as negative as positive.

More generally, the latest polls show that 54% think Brexit is going badly, and just 16% well (20% think neither), and I’m afraid it is going to get a lot worse before it gets better, if indeed it does. As ever, whilst much of the reason for that is inherent to Brexit, some of it is a result of the cack-handed conduct of the Brexit government, with the NIPB being the latest example. In that respect, too, there is little difference between now and 2019.

 

 

*For detail on opinions about the Protocol in Northern Ireland, see the latest (June) ‘Testing the Temperature’ report from Queen’s University Belfast.

Betamax Frost is an obstacle to a viable post-Brexit strategy

There’s something like an emerging consensus that the Afghanistan crisis has also created a crisis for Britain’s post-Brexit geo-political strategy and, in particular, shows both the emptiness of the ‘Global Britain’ slogan and the urgent need to increase co-operation with the EU. It’s a message that can be found in recent articles by former National Security Adviser Lord Ricketts, by the Observer’s Chief Political Commentator Andrew Rawnsley and, perhaps more surprisingly so therefore more significantly, by pro-Brexit Times columnist Iain Martin (£). Within the Conservative Party it can be seen in the comments of Tom Tugenhadt and Tobias Ellwood, amongst others.

Of course many people realized from the outset that Brexit was going to create such a crisis, not least because it was so clearly a victory for Putin’s anti-UK and anti-EU policies – the Afghanistan issue has just hastened it and made it more visible. That arises from one of the key flaws in the Brexit case, which always insisted that Britain’s security needs were entirely met by NATO (meaning, in effect, the US), whilst all attempts to develop an EU foreign and defence policy were treated as illegitimate and indeed as a reason to leave. More crudely, during the referendum, any discussion of the geo-political consequences of Brexit was shut down using the ‘so World War Three will break out if we leave?’ straw man.

Subsequently, the government’s attempt to articulate its Global Britain strategy in the ‘Integrated Review’ made only passing references to the EU, and Boris Johnson’s stated aim of “leaving the cramped horizons of a regional foreign policy” underscored that he wanted to act as if Britain’s strategic place in the world could be detached from its geographical place in the world. Exactly the same objective is apparent in relation Britain’s economic place in what Brexiters like to call the “post-geography trading world”.

The strategic logic for post-Brexit Britain

This was always foolish, if only because – as Brexiters themselves were wont to say – ‘we are leaving the EU, we’re not leaving Europe’. The implications of that truism are starting to be belatedly recognized in both geo-politics and economics. There’s a kind of Alice through the looking glass feeling in the words of the newly appointed Trade Commissioner for Europe, which speak of the huge importance of trade with the EU and of the need to work “with businesses and governments across the continent to remove barriers to trade”. It need hardly be said that … no, really, it need hardly be said. Still, it is a recognition, of sorts, of reality.

That recognition is also evident in some of the ‘quiet realism’ I’ve described in recent posts about the limited possibilities for regulatory divergence from the EU. For example, despite the current bluster about diverging from EU GDPR rules it seems almost certain that, when it comes to it, the government will realise that this would have few benefits but carry the massive costs (£) of losing EU approval of UK data protection rules as equivalent to GDPR. The pull of the EU regulatory orbit is too great for a country of Britain’s size and economic integration with the EU to resist. Divergence is simply too expensive, as has in fact been obvious since the 2017 Data Protection Bill was announced even as hard Brexit was being pursued.

Thus the strategic logic of post-Brexit Britain is getting clearer almost by the day. It’s not just that regulatory divergence is too expensive. It is also that continued de facto regulatory alignment makes it pointless to continue to refuse de jure alignment. That is because retaining the theoretical right to diverge (e.g. on Sanitary and Phyto-sanitary [SPS] regulations, which are also central to the Northern Ireland situation) whilst still in practice remaining mainly or entirely aligned makes no sense, or at least it only makes sense to theological Brexiters as an exercise in theoretical sovereignty. No doubt there will be a few exceptions, but that is the general logic of the situation.

Beyond regulatory issues, that logic suggests working in close and harmonious partnership with the EU across a wide range of security, diplomatic, environmental and possibly military endeavours. It’s not an ideal situation but, within the range of those currently politically viable for post-Brexit Britain, it is the best available. Anyone tempted to dismiss this as ‘remainer defeatism’ should recall that such harmony was precisely what many leave campaigners promised as a benefit of Brexit, replacing the antagonism arising from supposed ‘compulsion’ with a cooperation based upon making choices based on the UK’s own interests. It is only more recently that Brexiters have insisted on independence at all costs from anything European, regardless of UK interests.

To the extent that strategic logic points in the direction of a relationship with the EU that is both substantially harmonized and harmonious, it’s a reasonable expectation that at some point in the future a British government will take that path. But manifestly it is not inevitable that governments will act with strategic logic and, most certainly, it is unlikely that the present government will do so. For even as the force of that logic becomes clearer, Johnson’s approach to Brexit – as enacted by David Frost – remains one of antagonism which precludes acting on it.

Frost returns for autumn

That this approach is set to continue was made abundantly clear by Frost this week, both in a major speech and in a written statement to parliament. For all the mention in the speech of not wanting “a fractious or difficult relationship with the EU”, he was unable to resist multiple jibes suggesting just the opposite. Crucially, he made it clear that he does not accept the fundamental tenets of the Northern Ireland Protocol (NIP): “the difficulties come from the way the Protocol is constructed, not just the way it is being implemented”.

An obvious retort would be that he was the UK’s chief negotiator when it was agreed in 2019, but, as in the past, he made clear that he regards this as having happened because of the constraints inherited from May’s administration, constraints which wouldn’t have existed had “we” (meaning Johnson’s administration) been in charge at that time. For this reason, he evidently feels no shame, or even any sense of inconsistency, in reneging on what he agreed because he feels no genuine responsibility for having made the agreement.

This, as with other claims he makes, entails a ludicrous re-writing of history, but it’s important to understand that – in my view, although of course I am not inside their heads – both Johnson and Frost genuinely believe this stuff (for a longer discussion of Frost’s approach, see my post from last March). That matters, because it explains their present stance. In particular, they believe that May failed to negotiate properly because she didn’t believe in Brexit, that the removal of the backstop was a triumph of their ‘hardball’ negotiation, and that the subsequent threat to violate the NIP with the Internal Market Bill was what led to the TCA being agreed. Most fundamentally, they believe that the entire Northern Ireland border issue was fabricated by the EU in order to stymie Brexit and only gained prominence because May allowed it to. It’s significant that all of these beliefs have recently been affirmed by Dominic Cummings.

These may sound like outlandish statements to many readers of this blog, but they are entirely commonplace, and in no way controversial, in Brexiter circles. As such they are now baked in as articles of faith, certainly for Frost who has re-made himself by embracing them. Johnson seems to have lost interest in Brexit policy entirely, and has subcontracted it to Frost. It’s conceivable - given the general plasticity of his beliefs which, in a sense, mean that the term ‘articles of faith’ is a misnomer in his case - that he might change approach and dump Frost if he saw some advantage in it, of which more below, despite the furore it would provoke amongst Tory backbench Brexiters. But for now he too apparently shares this boilerplate Brexiter analysis of how the NIP came about.

The resumption of the Protocol row

What these beliefs about the past now lead to is the proposition that if the UK pushes hard enough then the EU will abandon the substance of the NIP, including abandoning its refusal to grant SPS regulatory equivalence rather than the UK agreeing regulatory alignment. In this way, both the substance and the tone of the NIP row are indeed blocks both to regulatory harmonization and to the creation of a harmonious relationship which strategic logic mandates.

Central to that approach is the threat to invoke Article 16. It is notable that Frost this week re-issued this threat, along with the unsubstantiated claim that the conditions needed to justify its invocation already exist.  Many sensible commentators rightly say that this would not resolve anything, but would merely exacerbate existing uncertainties and tensions. Such commentors also rightly point out that Frost’s words are at odds with his stated aim of creating the basis for negotiating and resolving problems.

However, we are not in the realm of the ‘sensible’ conduct of international relations. For Frost-Johnson the exacerbation of existing problems is not a failure but a desirable result because it is painful for those – in this case the EU – who persist in playing by the ‘normal’ rules, and seen as a route to total victory rather than to a compromise. Again it is an approach derived from Dominic Cummings’ time in Downing Street (and in the Vote Leave campaign), and embraced by Frost who was in Cummings’ inner circle at the time.

This is what they mean by playing hardball, and they genuinely believe it will lead the EU to re-negotiate the entire NIP. If nothing else, they think that the longer the negotiations go on, the more the unimplemented parts of the NIP will become normalized and EU claims about their necessity will be undermined. If in the process UK-EU relations are further soured then that is taken as a sign that their approach is ‘working’ – and in any case gives them a boost with pro-Brexit MPs and voters.

A looming crisis?

This isn’t going to explode immediately. As was widely expected, this week Frost announced that the UK will extend the various grace periods that were due to expire at the end of the month, and the EU has ‘taken note’ of this (i.e. accepted it). Significantly, unlike previous extensions, there was no date set. The UK position is to want a ‘standstill’ in the existing situation, whilst the EU was clear at the time of the previous extension that it was only a temporary solution. In the latest UK statement the word ‘extension’ is not used – the formulation is just that the UK will “continue to operate the Protocol on its current basis” – and the EU statement says nothing about timeframes.

So, for now, there is a fudge on that, but one which Frost will regard as very much in his favour and, tellingly, the pro-Brexit Telegraph immediately crowed that this was “a major concession” by the EU (£). What I think the EU has failed fully to appreciate is that in Frost’s Cummings-inspired negotiating approach any flexibility or conciliation is banked as a concession and chalked up as a sign that his intransigence works, not as cue for reciprocation.

The EU also continues to pause its legal action over the first, unilateral, extension the UK announced in March and Frost will see that, too, as a victory and vindication. It has yet to respond to the UK’s Command Paper of July setting out the government’s current approach. Once it does, which is expected to be at the end of this month, there will be a lot of sound and fury because what cannot be fudged forever is the fundamental difference between what the UK is now demanding and what was agreed in the NIP (for detail, see my discussion at the time of the Command Paper). At some point this will become a crisis, but how quickly is less clear than it would have been with a defined end date to the new extensions.

When and how the crisis comes will partly depend on the UK. Implicit in Frost’s parliamentary statement is that he might deem that there is no basis for further ‘constructive’ discussions. That is presumably code for an early invocation of Article 16. One counter-argument to doing so is the point made earlier – that the longer the grace periods remain in place with the NIP otherwise functioning, the greater the chance they might continue indefinitely. On that logic, Frost might drag the talks on for as long as possible rather than collapse them.

It will also depend on whether the EU is prepared to be robust in its responses, and if so then to what extent. Thus far, in its willingness to extend grace periods and to pause to legal action, the EU has seemed keen to dampen down and postpone conflict. If that continues it could play into the hands of Frost precisely because suspended implementation could become a permanent reality, and in any case would serve to confirm in his mind the efficacy of his approach.

According to RTE’s Tony Connelly – and he’s almost always right about such things - the EU is currently willing to offer some further flexibilities within the NIP framework but is also testing to see whether there is any flexibility in the UK position of effectively abandoning that framework. If so, that is still based on the misapprehension that Frost’s approach is one of the give-and-take of ‘normal’ negotiations. The problem for the EU remains, as I’ve discussed before, “how to react to a country that constantly behaves in a hostile manner, but hasn’t quite gone rogue”. Much will depend on how it answers that question in the coming weeks.

Domestic politics

However, there are potentially also domestic considerations in play for the government. Whilst an ongoing fight with the EU over the NIP would play well with its core supporters, it could go very badly indeed with wider public opinion if it comes at the same time as a worsening of the labour and supply chain crisis and especially if that crisis is widely attributed to Brexit (hence the importance of where that narrative settles, as discussed in last week’s post). With growing threats of shortages of toys and consumer electronics in the run up to Christmas (£) and of food shortages extending into the new year (£) it could be a bleak time.

In this context, it will be interesting and important to see whether the government introduces import controls, the first main phase being due to start on October 1, which, to spell it out, is only three weeks away, and the second on New Year’s Day. My hunch is that it will postpone again rather than risk the further disruptions that major retailers are warning of.

At all events, it’s not inconceivable that with all this going on the public, including plenty of Tory voters, may become sick and tired with the constant aggravation over the NIP. It’s even possible there will be a resumption of the Jersey fishing row. Yet Brexit, people were promised, would ‘get done’ with Johnson’s election victory. Interestingly, Frost has recently changed his Twitter profile to read “you don’t get something for nothing, you can’t have freedom for free”, but many leave voters might come to recall that no such trade-off was suggested to them when Johnson declared that they could have their cake and eat it. That could also get linked to criticisms of him having broken other manifesto pledges, such as those on national insurance and pensions.

Such a situation would be yet another opportunity for Keir Starmer’s Labour to capitalize on the post-Brexit mess. For, apart from the obvious open goal of the supply crisis, what is opening up, as a result of Afghanistan and (in the scenario I’ve just painted) public impatience with ongoing conflicts with the EU over the NIP, is a space for a distinctive and pragmatic post-Brexit foreign policy. It could even be presented, for the reason alluded to earlier, as the delivery of Brexit in the foreign policy arena. After all, it was the Vote Leave campaign that promised “better relations with our European friends” (p.15 of link).

Ditching Frost?

In this scenario, Johnson might seek to deprive Labour of the opportunity by taking it for himself. To do so, a necessary but not sufficient condition is ditching Frost. Few can doubt that if Johnson sees that as being in his interest – the only calculation that matters to him – he will do it. This could allow a recalibration towards a better relationship with the EU, especially if assisted by some face-saving concessions from Brussels over the NIP, which are arguably possible without jettisoning the entire framework (£). Accepting such concessions rather than demanding an all-out renegotiation would become possible with Frost out of the picture.

That in turn could be a prelude to the kind of strategic shift that logic suggests will eventually come, although it’s unlikely that Johnson could fully effect such a shift. That’s not because he is a committed Brexiter – he has never been that – so much as because of his general lack of ability to formulate and follow through on anything at all, and what even his most enthusiastic supporters would admit is a lack of anything resembling ‘statesmanship’. Or perhaps it would be fairer to say that he has some interest in ‘performing’ statesmanship, but no aptitude for its delivery. So any serious and substantive re-set of UK-EU relations is unlikely under Johnson – who is understandably loathed and distrusted across the EU – and probably under any Conservative Prime Minister whilst the diehard Brexit Ultras remain a powerful force in parliament and the media.

In short, there is a place that UK-EU relations can settle, albeit one that will please neither the most committed Brexiters nor the most committed remainers, which has a strategic logic to it given that Brexit has happened. But there are several obstacles to that, the first being David Frost. Whilst his removal would not guarantee anything changing for the better, for so long as he is in post it can be guaranteed that nothing will change for the better. For as the realities of Brexit, both economically and geo-politically, emerge at pace his embrace of a Betamax theory of sovereignty and an adolescent apprehension of international negotiation is increasingly being exposed as not just fatuous but redundant.

 

I will be taking a break from blogging until October 1, and hope that the diagnosis, above, that there will be no immediate crisis proves correct. But if you haven’t done so, then in the meantime why not read my book Brexit Unfolded. How no one got what they wanted (and why they were never going to) recounting and analysing what happened from the referendum result to the end of the transition period, which was published by Biteback on 23 June 2021. It can be ordered from Biteback, or via other online platforms, as a paperback or e-book. For reviews, podcasts etc. see this page.