A government that has lost its way

When I was at school – it must have been about the time that Jim Callaghan was (not) saying “Crisis? What crisis?” – I once received a damning report on my term’s work. “He seems to have lost his way”, it read, before adding witheringly “and what is worse he does not appear to care”. It is a verdict which could very well apply to Boris Johnson and his government.

After the complexity and drama of last week, this has been a fairly quiet one for Brexit news, for all that the Brexit-related (£) supply and labour crisis persists, with fresh reports almost daily including those of a “tsunami of unmet [social] care needs”, and the evidence of damage to trade mounts. At the same time, soaring energy prices threaten the viability of businesses, whilst the domestic energy market is in disarray (£). And ominously, but all too predictably, there are the increasingly worrying Covid developments. Not so much a matter of ‘Crisis? What crisis?’ as ‘Crisis? Which crisis?’

Against that background, the process of ‘getting Brexit done’ continues. Negotiations about the Northern Ireland Protocol (NIP) have resumed between officials and although we can expect them to be punctuated with leaks and, possibly, angry statements, the relative calm will probably endure for a week or two more as they continue. In the meantime, commentators have been trying to make sense of what happened last week and to predict what it may lead to.

A fair summary, at least of those things that I have read, is that no one really knows. And I think it’s also fair to say that anyone who does claim to know is deluding themselves. Clearly there are two main dimensions of uncertainty: will the UK continue to demand significantly more than the EU have offered on the NIP, especially as regards expunging any role for the ECJ, and, if so, how will the EU react?

Has the EU’s patience run out?

As regards the latter, Tony Connelly of RTE, almost always a reliable guide, suggests that the EU is not in a mood to compromise further, and that patience has pretty much run out both in terms of Brexit in general and in terms of anger at British bad faith. A similar sentiment can be found in an editorial in France’s Le Monde, which bemoans the fact that “the nightmare of Brexit” continues despite the agreements that have been signed. Unsurprisingly, Dominic Cummings’ remarks last week about how the government never intended to abide by what it agreed in the NIP are given as evidence of that bad faith. It would be wrong to say that they were decisive, in that this bad faith has long been recognized, but coming at this particular moment they have crystallised that recognition and made the EU even less likely to concede more to the UK.

Whilst France is widely understood to be especially resistant to further compromise, Connelly’s report suggests that plenty of smaller member states, such as Greece and Romania, are similarly disenchanted with the UK’s approach of – as I’ve argued many times on this blog is its hallmark – constantly coming back for more, whatever concessions are made. The German press, too, is scathing. Writing an opinion piece in Die Welt, Stefanie Bolzen, its long-term and Anglophile UK correspondent, also cites Cummings’ comments in her critique of Johnson’s dishonesty and use of “shock tactics”, and urges the EU to respond with its own “hardball” approach if the latest proposals are not accepted.

Bolzen and Connolly both refer to how the crisis over Poland’s challenging of the jurisdiction of the ECJ serves to make EU concessions on its role in Northern Ireland even less likely. It’s an important point, especially within the context of a British polity and media which have never taken much interest in the internal dynamics of the EU and now, more than ever, seem to imagine that “Brussels” is constrained only by lack of goodwill or desire to thwart Brexit from simply granting the UK whatever it wants.

Will the UK persist with the ECJ demand?

In fact, even without the Polish crisis, the UK’s latest demand betrays the perennial Brexiter failure to understand the nature of the EU (or any other) single market, in this case that it has to have an ultimate and sole arbiter of its laws. If it did not, then commercial activity would become impossible as economic actors would have no definitive means of redress when laws are broken. Thus given that for some purposes, notably goods trade, Northern Ireland remains in the single market some role for the ECJ is inevitable there. If for no other reason than this the NIP is, despite Frost’s insistence, different from a ‘normal’ trade treaty. Indeed, although it has trade implications, it is not really a trade treaty at all; it is part of, specifically, the Article 50 Withdrawal Agreement.

Whilst, as discussed by Gerhard Schnyder, various models have been touted to ‘fudge’ the governance issue, all ultimately entail some recourse to the ECJ. So if the UK really insists that this violates sovereignty then it is hard to see any room for compromise. Some, such as former Irish Taoiseach John Bruton (another long-term Anglophile, by the way), believe that Britain is intent on conflict with the EU not so much as a result of some principled stance on ‘sovereignty’ but to scapegoat the EU for all the problems of Brexit. The Irish journalist Fintan O’Toole, as acute an observer of Brexit as any, argues something very similar. I’m actually not so sure, in that I think that Johnson (shallowly) and Frost (through belated but genuine conversion) actually believe the ‘sovereignty’ line, and certainly that many of the Brexit Ultras pushing behind them to ensure the purity of the revolution do, as an article of – literally – faith.

One small indicator of this is the apparently absurd report (£) that Brexit Ultras including Iain Duncan Smith are pushing to ensure that Northern Ireland be included in the proposal to make it legal to sell goods using imperial units only, rather than using both metric and imperial (or metric only) units as required by the EU. This of course is not possible under the NIP because of it still being subject to EU law in this matter. Yet whilst this is indeed absurd (as, for that matter, were the ‘Metric Martyrs’ cases brought against traders for using imperial units only), it’s a longstanding and iconic issue for a certain segment of Brexiters, as I discussed when the proposal first appeared in Smith’s TIGRR report. Some even regard it as having played a pivotal role in the process than led ultimately to Brexit, and a campaign for pardons of those convicted was launched just this summer, showing that it is still a live issue.

From outside this segment of the Brexitosphere this seems quite ludicrous. There’s almost no one who wants to sell or buy goods in imperial units only. By extension, the idea that it matters whether the right to do so is shared by Northern Ireland seems even more trivial. Strikingly, it is the exact opposite to the EU’s approach in its proposed changes to the implementation of the NIP, which focusses pragmatically on the real and pressing concerns of Northern Irish businesses. But from within that segment, it is a matter of genuine concern and grievance, and is a specific example of why the continuing role of the ECJ is anathema.

Of course, as explained in my previous post, it is wholly unjustifiable for Johnson and Frost to suddenly claim that the ECJ’s role is a paramount issue of principle, given that they long accepted it without demur, but it’s important to understand that it derives from things which do matter for a noisy part of their core constituency. I think one of the biggest mistakes that remainers, or erstwhile remainers, have made over the years is to have under-priced the potency, for others, of things that they think ludicrous.

Whatever the motivation of the new demand, the hardening opinion in the EU (£) - not just in the countries already named but also in the Netherlands, Spain and Italy, for Johnson’s Britain has few, if any, friends any more - will hardly be mollified by seeing some of the things being reported in the British press. In particular, the suggestion that “government insiders” believe that even if agreement is reached in the current NIP talks there will still need to be further re-negotiations (£) will surely dismay the entire EU, as well as British people with any sense and, perhaps especially, Northern Irish businesses. Not only was it precisely to avoid such instability that arrangements for Northern Ireland were agreed as part of the Withdrawal Agreement, it also underscores that the British approach of always asking for more is indeed firmly built in to government thinking.

Nor will the bellicose noises about the possibility and perhaps even desirability of Britain fighting a trade war with the EU from Matthew Lynn (£) and others have gone unnoticed in the EU’s attempt to work out whether anything will placate the Brexiters. It may be tempting to dismiss the reports cited as being in the rabidly pro-Brexit Telegraph and Express, but readers in the EU will no doubt be aware, and I have certainly observed, how over the last few years ludicrous propositions from the Brexiter fringes have very often gone on to become government policy.

The domestic risks of a fresh crisis

I’m still not persuaded by the idea that there is domestic advantage for Johnson in continued confrontation with the EU, let alone a trade war, if that is what it morphs into. At the very least it would be an approach fraught with risk.

Johnson may believe, as some commentators do, that his party’s popularity is unassailable, and it’s true that most opinion polls show a remarkable continuing level of support despite the ongoing supply and labour crisis which might have been expected to dent it. But there is quite a bit of variation in the polls, which might suggest that his support is fragile. In particular, an acute piece by Matthew Parris in The Times (£) is right, I think, to suggest that if voters “join the dots” of the wide variety of crises – not all to do with Brexit – they may suddenly flip to seeing a wider picture of a government which is incompetent and seriously out of its depth over everything from food shortages to energy supplies, and from NHS waiting lists to its handling of the pandemic.

Adding a political crisis over the NIP and, especially, an economic crisis of a trade war with the EU - and, make no mistake, it would be a significant crisis, with ramifications for business viability, consumer prices, investment and sterling - might stoke up the angry support of Johnson’s core vote, but the rest of it could peel away very suddenly. Even without such crises, their continuing possibility is damaging, particularly for investment, and it’s hard to see businesses, already battered by Brexit, the pandemic and global supply problems evincing much enthusiasm for Lynn’s suggestion that they should now start ‘wargaming’ for a trade war. How much more damage can the already bruised and bloodied body of the British economy soak up?

Nor is the issue just one of adding a new crisis on top of others. It matters that it would be a specifically Brexit-related crisis. For, again outside of the hard core of its supporters, the government is rapidly running out of excuses for why Brexit hasn’t, as promised, been done. That matters because getting Brexit done was, by a long way, the most important issue for those deciding to vote Tory in the last election. More generally, it is getting more and more difficult for leave voters, a quarter of whom now think that Brexit is having a negative impact on the country, to think that they got what they were promised in 2016. Even the long-planned ‘Festival of Brexit’ is, apparently, going to drop the word ‘Brexit’ from its title (£), to the anger of Brexit Ultras. The new name for the festival is, provisionally, ‘Unboxed’, although one feels it cannot be long before that is replaced with ‘Undone’ or perhaps just ‘Unhinged’.

The dangers arising from old promises being broken is the more acute because of the new promises being made. The ongoing and likely to be long-lasting HGV driver shortage is a key example. As discussed in a recent post, the government has switched from saying this is nothing to do with Brexit, to admitting that it is and hence doing a little – but nowhere near enough – to address the problem with temporary work visas, to saying that it is a benefit of Brexit as it will increase drivers’ wages. This might have the advantage of giving the government multiple ‘lines of defence’, but has the effect of making each of them less plausible.

Thus when Transport Secretary Grant Shapps announced a temporary suspension of the post-Brexit ‘cabotage’ rules last weekend it was another acknowledgment that Brexit is a factor in the problems, yet was a puny response to the problems whilst immediately being attacked by domestic drivers as undercutting their pay and conditions so that they are now threatening strikes. Meanwhile, to the extent that HGV driver wages are now rising, it is causing new crises as bus drivers (£) and refuse vehicle drivers quit lower paid jobs to join the freight sector, whilst the system for testing new HGV drivers is in chaos. This is all happening because, rather than plan a serious policy for what would happen when freedom of movement ended, the government insisted all Brexit problems were ‘Project Fear’ and now makes responses based on gimmicks and temporary headlines.

A government trapped by its own dishonesty

The cabotage example illustrates that the government can’t claim Brexit is going well on either the ‘old’ criteria (it will be beneficial or at least cost-free), because otherwise why make the change, or the ‘new’ criteria (it will be tough but will be good for domestic workers) because the change undercuts domestic workers. More generally it can’t anymore say the supply and labour problems are nothing do with Brexit, because of the tiny steps it has taken in a few sectors, yet nor can it honestly admit that Brexit is going badly which would be necessary to take the substantive and substantial steps needed to address the problems across the entire economy.

This is not just about Brexit in the narrow sense of this or that practical consequence, but in the wider sense of it having bequeathed a government and a form of governing which are irredeemably dishonest, first and foremost about Brexit itself. The tangle of contradictory lies is now so dense that it is impossible for this government to escape it, even if it were minded to. It’s commonplace to talk of the government gaslighting the public, but perhaps where post-truth politics ends up is with a government that has gaslighted (gaslit?) itself.

So, again, to add a really serious new Brexit crisis over the NIP on to this would be politically risky. On the one hand, the swirl of lies and half-truths may be believed by some of the public, and confuse enough more people into concluding that it’s impossible to know what the truth of Brexit is. On the other hand opinion may crystallise into an angry recognition that the public has been comprehensively conned by Brexit. Since either is possible, it is a risk the government may take.

So what now?

As I said at the beginning of this post, neither I nor anyone else knows what is going to happen. And that, actually, is the nub of the problem. The UK is drifting, with no discernible strategy in any of the things it is doing. Worse, it is bereft of political leadership, with about the only thing that almost everyone - supporter or adversary, at home or abroad - agrees upon about the Prime Minister is that he, too, is irredeemably dishonest.

Thus it’s possible that Johnson is planning a trade war with the EU. It’s possible he will fall into such a trade war without planning to. It’s possible he will invoke Article 16 in the hope of getting more concessions from the EU but without matters escalating so far as a trade war. It’s possible he is planning to do a deal with the EU on more or less the terms offered. These are all possible within the ambit of the ‘madman theory’ strategy I discussed at length last week, but they are also all possible if there is no strategy at all.

So what if it’s not so much that Johnson is deliberately keeping the EU guessing as to his intentions, but that he doesn’t actually know himself? That he, too, does not know what is going to happen next? In some ways that is the most plausible possibility since, after all, the Brexiters have never had any facility for, or interest in, planning, with Johnson especially cavalier. As he flails around between incoherent speeches and painting holidays, apparently oblivious to all the crises surrounding him, it’s not hard to think that, as my schoolmaster once wrote of me, he has lost his way and what is worse does not appear to care.

Britain still refuses to get real about Brexit

In December 2017, after the end of the phase 1 talks, I wrote on this blog that what would now happen would be that “we will continue to travel endlessly around the Mobius Strip of Brexiter madness. That is to say, on the one hand the Ultras will keep finding new ways to imagine that it is possible to have all of features of being in the single market without being in the single market, whilst the EU will keep finding new ways to explain that this cannot be so”. The Chequers Awayday meeting was the last chance the government had before the phase 2 talks start to get off this endless fantasy loop. They blew it, and have arrived back at something that was first mooted as far back as 2016: a form of sector-by-sector Brexit.

The current version goes by various new names – three baskets, managed divergence or, freshly minted today, ‘ambitious managed divergence’. Whatever term is used the idea is almost certainly doomed to failure. In December 2016 I discussed some of the reasons why in a blog on UK in a Changing Europe website. I won’t reprise all that now, but one issue, which may not be immediately obvious, is that business sectors are rarely, if ever, discrete, clearly bounded, entities. For example, the government can talk about ‘the automotive sector’ but that pulls in goods and services from all kinds of other sectors, such as textiles or computer software. Sectors do not stand alone.

That indeed is one of the reasons why (as is already clear) the EU are highly unlikely to agree anything like the Chequers model. That is often expressed in terms of a refusal to allow ‘cherry picking’, but I think that is a misleading expression, implying that the juicy cherries are there to be plucked if only the EU would be more flexible or if the UK were to negotiate bullishly enough.

The real point is that the single market is, conceptually, precisely that: a single market. It is not in principle a single market in X or in Y, and if it were to be, or become, so it would lose what is central to its defining characteristic and its economic rationale. It is true that, to the extent that it is still a work in progress, especially in services, some sectors lie outside it and are only gradually being brought in. But those sectoral exceptions are temporary, usually for reasons of technical difficulty; anomalies to be rectified, not end states to be made permanent. The single market doesn’t just unify national markets, it creates a unified market tout court.

There is another issue – perhaps not worth spending much time on, since the whole model is almost certainly not going to happen, but important for understanding one of the key confusions of Brexiters. That confusion is the now often-stated idea that a UK trade deal with the EU will be easy because of existing convergence, which is the thing that is time-consuming in normal trade deals. The meta-problem with that is that this is not an ordinary trade deal in that it will be concerned – uniquely – with divergence not convergence, as discussed in a previous blog post. But within that, there is a particular issue that arises from the idea of a sector-by sector Brexit.

If we think about a normal trade deal, one of the key sources of delay is that powerful business groups lobby for their sectors to be excluded (i.e. to protect themselves from competition) and/or to shape the forms that regulatory convergence takes. In the Brexit case, the same lobbying will happen but in reverse: almost all sectors will lobby to be amongst those included in the single market and/or to shape the forms that regulatory divergence will take. So whereas it would very probably be fairly quick to agree a soft Brexit of Britain staying entirely in the single market (via EEA/EFTA), it will be no quicker to negotiate a sectoral Brexit than it would be to negotiate any other trade deal – in other words, many years.

But all this is, as I say, largely beside the point. Unless something drastic changes on the UK red line on the ECJ (and that’s not impossible: we already see signs of it softening over Citizens’ Rights and security), then ‘ambitious managed divergence’ is a dead duck. It simply won’t work to have some sectors of the UK economy in the single market on the basis of the UK sticking to EU regulations for this or that sector or having some form of mutual recognition agreement (itself a much more complex matter than the government seems to understand, which would need another post but in the meantime see this briefing from the Institute for Government). The reason it won’t work is simple: what happens when there are differences between, or disputes about, the application of regulations? Some body has to decide, and that has to be a supra-national body. The UK courts by definition are national not supra-national, so it has to be the ECJ. This the key take away from a detailed assessment of ‘sectoral Brexit’ from the UK Trade Policy Observatory (which is well worth a read not just on the ECJ issue, but also those of mutual recognition agreements and the WTO constraints on sectoral Brexit).

So, still, the Brexit government is trying to square the circles of incompatible demands. What they want is logically impossible to deliver, and it doesn’t matter a jot how often Brexiters invoke ‘the Will of the People’ to insist that it ‘must’ be delivered. You can vote that the earth is flat, but it doesn’t make it so, and it doesn’t enable ships to sail or aircraft to fly to insist it ‘must’ be so. It is extremely unfortunate – and, frankly, embarrassing - that it falls to the EU to keep having to  tell the British government that its demands are impossible because that, of course, feeds the Brexiters’ narrative of ‘punishment’. It would be far preferable if our own politicians were to have the courage to tell the British people the truth.

The Conservative Party, of course, is hamstrung by its ERG Ultras, who have been out again in force this week demanding a scorched earth Brexit (for a revealing analysis of this group and its motivations see Otto English’s blog, and for an analysis of the inadequacy of the ERG letter’s understanding of the WTO issues it raises, see ex-WTO official Peter Ungphakorn’s twitter thread). As a result, the government shows only occasional flashes of realism (for example, this week, on the likely need for a longer transition period and on an acceptance that EU nationals arriving in the UK during the transition period will have full rights), and these only after having resisted the obvious for so long that this realism can be positioned as a betrayal by the Ultras.

It is Labour who hold the key, because although politics is a complex business sometimes it can be thought of in the very simple way of parliamentary arithmetic. For the time being, they are only inching towards something realistic in terms of a customs union, but it is too little and too slow. It’s actually quite strange that the Labour leadership seem to have reservations about a comprehensive customs union only on the grounds that it would entail the Common Commercial Policy (CCP; i.e. no independent trade policy), since business doesn’t care about that (as the business benefits are almost non-existent whilst the costs are huge) and the Corbynite objection to the EU is on the grounds of global neo-liberalization.

It is a tantalising thought that if Jeremy Corbyn were to come out in favour not just of a comprehensive customs treaty but also single market membership then he would be both the most left-wing leader of the Labour Party in modern times and the champion of the ‘jobs first Brexit’ he apparently wants, whilst also positioning Labour as ‘the party of business’. That term used to be the unquestioned possession of the Conservatives, of course, and one of the strangest political turnarounds of Brexit is how unequivocally they have become an anti-business party as well as becoming committed to damaging British geo-political standing and influence. Above all, the Conservative Party used to pride itself on being ‘non-ideological’ and pragmatic. In its Brexit incarnation it is neither. Hence we have a government committed – and there is no precedent for this in modern British history that I am aware of – to the art of the impossible.

May's Munich speech: seriously ambiguous

Munich may not be the most historically auspicious place for a British Prime Minister to give a speech about European security, but Theresa May delivered what Charles Grant, the widely respected Director of the Centre for European Reform, rightly called a serious speech. This, perhaps, reflects that after her years in the Home Office security is an area where she feels comfortable and knowledgeable. Even so, it contained many ambiguities when the time for ambiguity is running out.

Was the speech intended to be conciliatory and reassuring in stating “unconditionally” Britain’s commitment to Europe’s internal and external security? Or was intended to be threatening in its detailed references to Britain’s intelligence and military capabilities? Was she saying we need each other, or that you need us more than we need you? Perhaps both, and, if so, perhaps for difference audiences?

Was the reference to the need to prevent “rigid institutional restrictions or deep-seated ideology” getting in the way of a deal on security a staggeringly unreflective remark given that the Brexit Ultras, indeed Brexit itself, are the most obvious embodiment of such dogma? Or was it a warning to those same Ultras of the need to be flexible? Was it saying to the EU that whereas the options for trade have been framed in terms of pre-existing models (Norway, Canada) that for security could be bespoke (though, strangely, she invoked trade as an area where there are precedents for a bespoke deal)? Or did it mean that if security could be dealt with on a bespoke basis then why not trade and everything else? Or did it in fact imply, as Sky News’ Political Editor Faisal Islam suggested, a different model, that of the Ukraine Association Agreement?

The references to the role of the ECJ were potentially highly significant, but again ambiguous. She accepted that “when participating in EU agencies the UK will respect the remit of the European Court of Justice”, but the sentence before said that any agreement “must be respectful of both the UK and the EU’s legal orders” (and a spokesperson later said that she had just meant that the UK would pay “due regard” to ECJ rulings). So does this mean Britain accepting actual, or perhaps de facto, ECJ jurisdiction with respect to participation in those agencies or not? Does it imply, instead, some kind of new UK-EU legal body (I have thought, ever since the White Paper was published, that this was where things were heading) and if so how would it work and what would the implications be for participation in other agencies, such as Euratom? The ECJ red line, first drawn by May in her Party Conference speech in 2016, has created some of the most intractable problems for Brexit – but was she softening it or restating it in the Munich speech?

The meaning of these ambiguities is itself ambiguous. Is it that she dare not be clear for fear of causing uproar within her party? Or that she is not clear in her own mind what she means? Sometimes, I have the sense that May is simply not alive to the implications of the phrases that she uses. Going right back to the ‘Brexit means Brexit’ months, before the Lancaster House speech, she used to speak of retaining frictionless trade in goods and services. This seemed to code a soft Brexit, since that is the only way of achieving such trade. But subsequently it emerged that this was not what she meant, even though she still uses the same phrase, and it sometimes seems that she does not understand the complexities and subtleties of what is involved in Brexit – for example the full implications of having set herself so firmly against any role for the ECJ. That may seem an extraordinary thing to say of a Prime Minister and seasoned politician, but if the picture created by Tim Shipman’s widely acclaimed book Fall Out is accurate it may be correct. There, she is portrayed very much as a blank canvas on to which her advisers painted pretty much whatever they wanted.

Whether studied or uncomprehending, her ambiguity has in the past served her well, allowing different people to project on to her whatever they find conducive. This has enabled her to walk the line between EU and domestic pressures and between different factions in her ever-more fractious party. The Munich speech reflects that: it can be read as slowly inching her Ultras towards pragmatism or slowly inching the EU towards creating the bespoke Brexit that she apparently thinks possible. (Shipman’s book is again revealing on this, both in suggesting that she does, indeed, reject the ‘Norway-Canada’ duality and, also, that she regards the ‘opt out and selectively opt back in’ approach that she adopted to the EU whilst at the Home Office as the template for Brexit, although few regard it as realistic. Tellingly, she made reference to exactly that experience in her Munich speech).

However, such ambiguity is fast becoming a fatal weakness. Had we but world enough and time, to use the words of Marvell’s famous poem, it might be viable to keep walking the tightrope and, perhaps, to gradually push whoever it is she wants to push towards whatever it is she wants to push towards, if indeed she knows. Since she sent the Article 50 letter, though, time has been at a premium and has now all but expired. May’s speech in Munich may have been serious but the ambiguities within it, as well as her wider ambiguities about Brexit, cannot persist for much longer. Within the next few months, if not indeed the next few weeks, she will need to come off several carefully-constructed but inherently fragile fences.

Brexit, data protection, and the myth of 'taking back control'

Yesterday’s statement from the government about the planned new UK Data Protection Bill is the first concrete example of something which has been in prospect ever since the publication of the Brexit White Paper last February. The White Paper made it clear that post-Brexit the UK would seek to maintain a great deal of regulatory harmonization with the EU, with data protection mentioned as one example (paragraphs 8.38 to 8.40).

The Data Protection Bill will be the first fruit of that. In one way, it can be seen as business as usual in that Britain needs to comply with the new EU General Data Protection Regulation (GDPR) which comes into force in May 2018 when, of course, Britain will still be a member of the EU. Yet as yesterday’s announcement made clear, the Bill will “prepare Britain for Brexit” by ensuring data transfer and its associated business can continue smoothly after leaving the EU. The reason this is necessary is that on exit Britain will be a third party nation but such nations need to demonstrate regulatory equivalence with the GDPR in order to trade freely with the EU.

This is a clear illustration of how, whether in the EU or not, the UK in practice needs to comply with EU regulations. There is a strong element of regulatory pull in any situation where a smaller economy sits alongside a much larger economy because proximity also means that – again, whether in or out of the EU – a large proportion of UK trade will be with the EU. This is so regardless of what the trading arrangement turns out to be, although of course the absolute volume of trade will be very much affected by the nature of that arrangement.

As regards the GDPR, since it has been some time in the making, Britain has had the opportunity to shape the new regulations. But once we have left we will become ‘rule takers’ – not only of any further developments in data protection regulation but also across all of the very numerous areas of EU regulation. This is so even if we leave the single market, as the government plans. In fact it is especially true if we leave the single market in that if we stayed in (as an EFTA member) we would have somewhat more scope to influence regulations than as a third party nation (albeit less than as an EU member).

Nor is the issue confined to the formulation of law and regulation. Equally important will be its ongoing interpretation and enforcement which in the EU means the ECJ, of course. But the government have, for unnecessary reasons of pure dogma, made freedom from ECJ jurisdiction a ‘red line’ (something which is causing an endless number of conundrums and disputes, from Euratom to air travel to citizens’ rights). So this creates a new problem. If UK law (in this case on data protection) follows EU law, then what happens as over time the ECJ makes judgments on the interpretation and application of the latter?

This is the force behind today’s call from Lord Neuberger, the President of Britain’s Supreme Court, for guidance from the government as to how to treat ECJ rulings after Brexit. Steve Peers, on his EU Law Blog, pointed out that the White Paper implied that EU case law would continue to be relevant to British courts post-Brexit in the same way as at the moment, but that what this meant was unclear – as it remains. In reality it is impossible to see how the UK could effectively maintain compatibility with EU regulation in the way envisaged by, in this case, the data protection legislation if over time its interpretation and application diverged by virtue of incompatible decisions in the EU and UK courts (this is one of the underlying issues I drew attention to in my recent post on the Brexiter fantasy that current regulatory harmonization makes a UK-EU trade deal easy). The likelihood is that, in practice, ECJ judgments will be applied in the UK. Indeed the government’s own formulation, both in the White Paper and in its spokesperson’s response to Lord Neuberger, that Brexit will end the “direct jurisdiction” of the ECJ seems to suggest just that: what will happen is ‘indirect jurisdiction’.

So the data protection legislation is an early glimpse of just how meaningless the mantra of ‘taking back control’ and ‘making our own laws’ really is. The reality is that – unless the plan is for complete economic autarky, and I wouldn’t put that past some of the Brexit Jacobins – the UK will have less control over law making than it had as an EU member. The data protection case is an example of how, as I wrote at the time of the White Paper, what is in prospect is the creation of a whole host of shadow regulations and institutions to mirror those of the EU. In other words, a situation where the reality is less control will be created in order to give the illusion of having control so as to assuage (what the White Paper calls) the “feeling” of having lost control by being in the EU.

Is Article 50 reversible?

It is being reported that the government are considering a change in the arguments they will make in their appeal to the Supreme Court to overturn the High Court ruling that parliament must vote on the triggering of Lisbon Article 50. The reported change sounds highly technical but it has potentially far-reaching implications.

At the High Court case, both sides accepted as common ground that, once triggered, Article 50 was irreversible. This was very significant, because if that was so then, the High Court ruled, it would inevitably lead to the repeal of the 1972 European Communities Act. Since only parliament can revoke that which it has done, then only parliament could authorise that which would inevitably lead to that outcome. It is now being reported that the government is considering not accepting this is as common ground, and instead arguing that the Article 50 process is reversible, and that it would subsequently be possible not to go through with leaving the EU. If so, this would undercut one of the main reasons for the High Court ruling and might allow the government to win its appeal.

If this is indeed what the government end up arguing, it will have several consequences. First and foremost, it makes it likely that the Supreme Court will seek advice from the European Court of Justice (ECJ), not to make a judgment about this case (the ECJ has no jurisdiction to do so) but about whether on a point of EU Law Article 50 is or is not reversible. The Supreme Court could ask the ECJ this question even if both parties still accepted it as common ground that A50 was irreversible (as could the High Court have done, had it wished). But it becomes much more likely that they will do so is it is not accepted as common ground (although it is in their power to take their own view on reversibility that might lead to subsequent problems and even legal action if it turned out not to be true once A50 was invoked).

If the Supreme Court does ask the ECJ for advice it will certainly lead to outrage from Brexiters, who will regard it as interference in UK affairs (even though, as noted, it would not be an ECJ ruling, just clarification of the EU process which, after all, has to be followed if the Brexiters wish to leave the EU). It would also make it highly unlikely that the government’s timetable for triggering A50 by the end of March 2017 would be possible, because the ECJ would take some time to give its advice and until it did the Supreme Court could not give its ruling. This in turn would make it unlikely that the A50 process would be completed before the next scheduled General Election or before the next European Parliamentary elections.

If, after all this, the government won its appeal on these grounds, then it would have a big impact upon the politics that would follow. If they had won on the grounds of the reversibility of the A50 process, then it would make viable the proposals from LibDem and other parliamentarians for a second referendum on the terms of exit. At the moment, as I have argued in another post, this idea makes no sense because if A50 is not reversible then what would be the alternative on the ballot paper to accepting whatever the negotiated exit terms were? But if it has been established that A50 is reversible, then the question could be to accept those exit terms or to simply stay in the EU.

There is good logic to the idea of a second referendum in that form, because whilst the June vote was to leave the EU, it was not a vote for the terms of leaving. A recent opinion poll shows that only 33% of voters would vote to leave the EU on any terms; for the others, the issue would be what the terms on offer were. Personally, I am not sure whether such a referendum would be wise (the experience of the last one does not suggest that the campaign would address the real issues) and a parliamentary vote might be preferable. However, the latter course would also carry grave risks.

At all events, if the government do proceed in this way at the Supreme Court and if they win their appeal on that basis it will open up many new issues and potential delays in, if not the scuppering of, Brexit. There are so many ironies here. It is an irony that Brexiters, who asserted the centrality or parliamentary sovereignty as a key reason to leave the EU, should even be trying to get legal permission to circumvent it. It will be doubly ironic if in order to achieve this they open up the possibility that, even if they get to trigger A50, they might end up not proceeding all the way to the exit door. Finally, it may be noted that, even if none of this happens, it is becoming less and less clear where that exit door is: it is beginning to be mooted that the UK will need to seek an interim deal after the end of the two year A50 process in order to avoid the chaos that would ensue from the fact that this time period will not be sufficient to complete the negotiations.