Brexit border bewilderment

I don’t suppose that there is much political interest today in anything but the local election results, about which I’ll say nothing here except that anything now happening to the Tory Party is inextricably, even when indirectly, bound up with Brexit.  And, as the length of today’s post testifies, it’s not as if there is any lack of other Brexit news to discuss. Much of that news concerns, in different ways, the issue which both defines and bedevils Brexit: borders.

Early in the Brexit process, I wrote a post on ‘why Brexiters don’t understand borders’, which touched on some of the topics which will feature in today’s post, and it concluded as follows:

“I referred earlier to a very good article in the Daily Telegraph [by Peter Foster] on the implications of Brexit for Ireland and Northern Ireland and, within it, there is a revealing sentence from an unnamed British civil servant working on Brexit: ‘It seems as if every day something new we hadn’t thought of comes up’. That could almost be the strapline (and perhaps will be the epitaph) for Brexit. At every stage in the debate, Brexiters insist that it will be easy and that those who say otherwise are doom mongers; but every time those claims meet reality there turns out to be far more complexity than Brexiters believed (or at least than they told the electorate). Borders and what they mean are perhaps central to the Brexiter mindset: it is to say the least unfortunate that they don’t understand them. It is doubly unfortunate that we are all going to have to pay a very high price for their enlightenment.”

That was written in March 2017, but it is a suitable introduction to this week’s main Brexit developments.

Bordering on the ridiculous

The ongoing saga of the introduction of import controls reached a key moment on Tuesday, when the latest phase of controls came into force – except for those which didn’t, and for those hauliers who were waived through even when they had non-compliant paperwork, and for those consignments requiring the attention of inspectors who clock off between 7pm and 7am – further adding to the uncertainty and confusion surrounding the process. I’ve discussed this exhaustively, or at least exhaustingly, for years now, most recently in last week’s post, but it is still a notable moment not least because it has brought an upsurge in media attention, including reports in the Mail, on the BBC, and a particularly hard-hitting item on ITV News, as well as questions from MPs.

Amongst these media reports, an especially informative one came from Ellen Milligan of Bloomberg because it focused on the impact of the controls upon EU exporters, taking the important example of Danish bacon exports to Britain, tracing them from pig farm to arrival at the port of Immingham on the east coast of England. This was proper, detailed reporting getting, almost literally, out into the field, and it exposed the sheer bureaucratic complexity and cost Brexit has imposed on EU firms exporting to Britain (which, of course, has a mirror image for British firms exporting to the EU). In the process, it illustrated why smaller firms simply cease to engage in such trade. A report covering similar themes, but considering the case of Polish exporters appeared in The Times (£).

Counting costs

Apart from being informative in their own right, these articles were a useful addition to the bulk of the reporting, which was more focused on the UK importers, who also bear some of the new burdens, such as having to pre-notify and declare imports. Quite what all these costs amount to is a matter of dispute. The ITV report commissioned expert analysis suggesting a figure of £2.9 billion per annum, whereas the government claims it is only £330 million. A discrepancy of that magnitude suggests that totally different methodologies are being used, but since neither figure has any published details of how it was arrived at it is impossible to judge. However, Dr Anna Jerzewska, a leading international expert on trade and customs, was asked to provide an independent evaluation of the analysis underlying ITV’s figure, and stated it to be “robust”.

One yardstick by which to judge the government’s figure is that the Times report quoted the extra costs to just one Polish haulier of fresh poultry to the UK as being in the region of £1 million to £1.5 million per year. If correct, that makes the figure of £330 million a year for the total cost inherently implausible and, whilst of course I cannot prove this, I suspect that it is based only on the direct costs to UK importers. And whilst it is impossible to know without seeing the government’s – specifically DEFRA’s – calculations, it would not be unduly cynical to think that it has chosen a methodology to downplay the costs. Apart from anything else, if the costs really are so small, then what is the justification for the repeated delays in implementing the controls?

Mounting risks

It's true that there may be other answers to that question, in addition to cost, with one possibility being a desire to avoid the bad publicity for Brexit of border queues. But whatever the answers are, the delays demonstrate irresponsibility, given that the Department for Environment, Food and the Rural Affairs (DEFRA)  itself is saying (accurately) that “a robust and proportionate border regime is vital to ensure we can protect our food system against biosecurity threats” and that “these border checks are fundamental to protecting the UK’s food supply chain, farmers and natural environment against costly diseases reaching our shores.” What, then, of the continuing elevation of the risk of those threats from the ongoing delays in implementing the border regime?

Indeed, there is much disingenuity in the entire way the government is presenting this issue (just as there is in the way that Kemi Badenoch presented the latest trade figures this week). The DEFRA announcement just referred to includes another example, suggesting that the new regime represents a “saving” because it is (supposedly) cheaper than the original plan for the post-Brexit regime. Perhaps so, but it still represents a cost of Brexit. That fact is also continually smudged when the government (and some media reports) imply that all this is not so much about Brexit as about the government’s decision to develop an entirely new Border Target Operating Model (BTOM) for imported goods, for reasons of bio-security policy.

This misleading implication is possible because it is true that the BTOM is designed to cover imports from the whole of the world, not just from the EU, and in that sense has elements which are not directly to do with Brexit. However, it would not need to include EU imports (or not to anything remotely like the same extent) had it not been for Brexit, and it is highly unlikely that, but for Brexit, the BTOM would have been introduced for rest of world imports. For, despite much misunderstanding, some of it apparently wilful, along the lines that there is no reason why imports from the EU should be any riskier now than when Britain was a member of the single market, this is not so. The government is introducing controls on EU imports, albeit far too slowly, not for the fun of it but because they are now necessary for such imports, just as they have always been for non-EU imports.

What happens now?

This story still has some way to run. Not only is this phase of controls not yet fully operational, but there are new phases coming in October, and still more next year, including the introduction of import controls on goods from Ireland. Equally, there is a time lag between controls at the borders and the knock-on effects on the viability of businesses, prices, and product availability on the shelves. More in future posts, no doubt.

Border bafflement

Meanwhile, borders also feature in another of this week’s big news stories, the row between the UK and Ireland over asylum seekers. I don’t think that in all the years I have been writing about Brexit, I’ve ever come across an issue so convoluted and difficult to unpick, especially as the story was still unfolding whilst I wrote this post. As a result, I’m still not sure if I have got the details right, and (as always, in fact) I’m more than open to correction.

Initial reports suggested that the Irish government intended to pass a law so as to be able to return asylum seekers who are entering Ireland via Northern Ireland (NI), to the extent of accounting for 80% of “recent arrivals” of such asylum seekers (ASs) in Ireland, although this figure has subsequently been questioned. Moreover, it was held that the reason this was happening was the British government’s ‘Rwanda policy’. The political context of Ireland’s announcement is the increasingly violent far right anti-immigration and anti-asylum seeker protest movement, so it can be read an attempt to appease this, rather as Britain’s Rwanda policy is an attempt to appease similar movements and political pressures in the UK.

It has been questioned whether the Rwanda policy is what is driving any increase there may be of ASs moving to Ireland via NI. Clarity is not aided by the British government’s contradictory response, with, on the one hand, a Downing Street spokesperson saying “it is too early to jump to conclusions” about whether the Rwanda policy was having this effect whilst, on the other hand, Rishi Sunak implicitly endorsed the claim that it was by saying that it shows the policy is already “working as a deterrent”. Those things can’t both be true. Moreover, if there is such an increase, whatever the cause, then unless, I’ve missed them, there is no reporting on how this is happening. Presumably it would entail ASs arriving in Great Britain and making their way to Cairnryan in Scotland and thence by ferry to Larne (which, as I understand it, requires passengers to provide photo ID). But, if so, there would surely be reports of large numbers of them doing this?

An additional complexity is understanding just what it is that the proposed Irish legislation would do. The early reports seemed to suggest it would mean legislating to deport the relevant ASs to the UK, However, it quickly emerged that Ireland’s plan was actually to legislate that Britain is a “safe third country” to which ASs can be returned in the face of a recent Irish High Court ruling to the contrary (this ruling was not, however, because of the UK’s Rwanda policy).

Whatever form any eventual Irish legislation takes, it is not obvious what would follow. On the face of it, deporting ASs who had arrived via the UK back into the UK would be no more feasible or legal than the idiotic claims by hard line Brexiters that ASs arriving in Britain from France could simply be returned en masse to France. One such is Richard Tice of Reform UK, who – like a schoolboy boasting to his friends that he has a wonderful girlfriend, but they wouldn’t know her ‘as she goes to a different school’ – insisted this week that he has ‘advice from his own lawyers’ saying this would be legal. It is an irony, though, given those claims, that the Brexiters have been so outraged by suggestions that Ireland might apply the same approach to Britain that they want to apply to France.

Agreement, what Agreement?

At all events, Sunak has unequivocally rejected the idea of any agreement to take ASs back from Ireland, at least unless the EU agreed that the UK could return ASs to France. However, this is where things get particularly opaque, because politicians, not least the Irish Taoiseach Simon Harris, and many media reports have spoken of an already existing post-Brexit bi-lateral agreement under which such returns are possible, and Sunak seems to accept there are ‘operational arrangements’, albeit no legal obligation (£), to effect returns. The agreement referred to appears to be related to the operation of the Common Travel Area (CTA), the system, going back to 1923, although with some intermissions, whereby there is freedom of movement for British and Irish citizens across and throughout both jurisdictions.

However, despite all the references to it, no one seems to be clear about what this asylum deal actually is. The continuation of the CTA after Brexit was affirmed by a Memorandum of Understanding (MoU) between the British and Irish governments, created in May 2019 and it seems possible that this is the agreement in question, although it says nothing specific about asylum seekers [1]. It also doesn’t tally with the 2020 date given in media reports for the MoU, and although there was a CTA MoU in that year it related specifically to healthcare. The 2020 Withdrawal Agreement also makes reference, in the Northern Ireland Protocol, to the maintenance of the CTA, but again does not seem to suggest any specific agreement on asylum returns, and anyway anything that was in this Agreement would, unlike a MoU, be legally binding on the UK.

On social media, attention has also been drawn to an unsourced fragment of text which refers to the two countries facilitating the return of individuals to “their country of origin” if they have entered the CTA unlawfully. A lot of digging reveals that the source of this is a still operative, but pre-Brexit, 2011 Joint Statement by the two governments about securing the CTA’s external border, which relates in turn to the somewhat secretive and still ongoing joint Operation Gull programme which serves that purpose [2]. However, this doesn’t mean returning such individuals to the country within the CTA from which they came, it means (potentially) the country from which they originated, and it certainly isn’t the post-Brexit agreement Harris and others appear to have in mind.

Nevertheless, to the extent that there is CTA dimension to this, which is to say a specifically UK-Ireland agreement, and even more if there has been a specific post-Brexit agreement relating to asylum returns, then the parallels between UK-France or UK-EU arrangements do not hold.

Brexit aspects

So here Brexit begins to enter the story more explicitly, albeit in complicated ways. One aspect is that, pre-Brexit, the Dublin III regulations enabled, in some though by no means all cases, Ireland to return ASs to the UK (and vice versa) if that was where they had made their first application for asylum. And this indeed happened. According to Bernard Ryan, Professor of Migration Law at Leicester University, in the period 2008-2014, the UK made 1334 such requests to Ireland, resulting in 753 transfers of persons, and Ireland made 815 requests to the UK, resulting in 357 transfers. However, post-Brexit, the UK is no longer a part of the Dublin regulations (a side-issue here is that these regulations are themselves in the process of change).

Amid much confusion in media reports and social media discussions this week, Law professors Colin Murray and Steve Peers produced an excellent detailed briefing on the current legal situation. What it revealed is a complex hodge-podge of EU law, Irish law, UK law, the particular post-Brexit provisions for NI, and, indeed, the provisions, both legal and customary, of the CTA. It is well worth reading in full, but on my interpretation (which I stress again is highly tentative) there is nothing here which, in any ordinary meaning of the term, constitutes an agreement, whether relating to the CTA or not, whereby ASs arriving in Ireland from the UK can simply be returned.

Instead, as Murray and Peers put it: “Amid the tangle [of] post-Brexit arrangements, both countries appear to be talking at cross purposes”, a situation not helped by the “low trust context” which militates against them “engaging with each other in the close collaborative relationship that the CTA requires”. They don’t say it explicitly, but I assume they mean by that the context created by Brexit and the manner it was undertaken.

A second aspect is that several Brexiters have responded to the current row (£) by suggesting that it somehow means that Ireland and the EU are reaping the results of having insisted during the Brexit negotiations that there could be no land border between Ireland and Northern Ireland, and specifically no checks on people moving between the two jurisdictions by virtue of the CTA. They are also suggesting that Ireland is about to install such a border, though this is based on what would seem to be a misunderstanding of a report that the Irish government has deployed extra police on “frontline” duties of prevention and deportation.

Undoubtedly those now claiming a ‘gotcha’ moment (£) are those who have never understood or accepted that the Good Friday Agreement effectively precludes such a border. In any case, they are now missing the rather crucial fact that it was British Brexiters, more than anyone else, who had been adamant that the CTA would continue and, moreover, that this was their supposedly definitive rebuttal of the ‘Project Fear’ warnings issued by Tony Blair, John Major, and others, about what Brexit would mean for the Irish border.

How did we get here?

Most notably, this was the position of Boris Johnson and of the then Northern Ireland Secretary (and keen Brexiter) Theresa Villiers. It was a position founded on ignorance, to the extent that, as the Brexiters (or, at least, the ones who had to take responsibility for enacting Brexit) gradually came to grasp, the issue about the border was not just about the movement of people but also the movement of goods and livestock, and the various processes and checks needed (the same, indeed, as with the GB-EU border controls discussed above). Hence, by a long and slow route, we ended up with the Irish Sea border, with all that that has meant, including the Windsor Framework.

Along the way, discussion of the free movement of people across the island of Ireland became curiously muted. Amongst the pre-referendum warnings of the remain campaign, Major and Blair had highlighted not just the matter of customs controls but that of immigration from the EU. For example, Blair said that if there were no immigration controls between Ireland and Northern Ireland then: “It would make a nonsense of their entire argument for leaving which is all to do with the free movement of people in the European Union.”

At stake was that if there were no border checks then what would stop someone coming to Ireland quite legally from any EU country, under freedom of movement rights, then entering the UK via Northern Ireland and living or working illegally? I was not alone in thinking, in the early days of the Brexit process, that this was going to be a major question. Indeed, at that time, the government itself mooted the idea of moving frontline UK immigration controls to Ireland’s ports and airports (no one seemed to give any consideration at all to the possibility of movement in the other direction, from the UK to Ireland, whether that be of ASs or non-EU nationals residing legally in the UK).

In the event, whereas customs and other controls on goods were located across the Irish Sea, the issue of illegal immigrants from the EU was left to detection when in situ by landlords, employers, banks etc., and surprisingly little has been heard of it since. The only time it has become a matter of much public debate was not in relation to EU nationals or to asylum seekers but when it was raised in 2022, by the then British Home Secretary Priti Patel, in relation to Ukrainian refugees accepted by Ireland potentially entering the UK through ‘the back door’, under cover of the CTA. However, I’m not aware of any evidence that this actually happened, or if it did then to any great extent, nor of there being any talk at that time of a ‘returns agreement’. And so things rested until the last week or so.

What happens now?

How this current row will play out remains to be seen. Some reports have suggested that the two governments are keen to dial-down a dispute which has been “escalated out of all proportion”. I am not so sure. It arises out of what, in both countries (as in many others), is an extremely toxic politics around immigration in general, and asylum in particular, which many politicians are all too ready to exploit and exacerbate, especially with both countries facing general elections in the next twelve months.

Not the least of that toxicity is the wholly repellent dehumanization of ASs as some sort of malign parcel to be passed from country to country to ‘deal with’ or worse, according to the depraved comments of Reform’s Deputy Chair Ben Habib, left to drown. Habib later tetchily claimed to have been misrepresented, but his comments, which seemed to shock even the Talk TV shock-jock Julia Hartley-Brewer who conducted the interview, are on the public record for people to judge for themselves.

Whatever the challenges they may pose, these are people, including people broken and traumatized by suffering. And if it should be that some are ‘economic migrants’, whose asylum claims are not valid, well, they are still people and, very likely, people who have become economic migrants as a result of great hardship. Either way, they should have their claims processed quickly and fairly. Doing so does, indeed, pose challenges, as does the successful support and integration of those whose claims are found to be valid. The way to deal with those challenges can only be through concerted global action, both as regards the organization of asylum claims and destinations and as regards the multiple root causes of the need for asylum-seeking. That isn’t easy, to say the least, but it is emphatically made more difficult by nationalism and xenophobia.

This is clearly a bigger issue than the EU and Brexit, and it can hardly be said that the EU or its member states are paragons of virtue (one of the silliest of Brexiter ideas is that those who oppose Brexit see the EU, in this or any respect, as some kind of nirvana or, conversely, that its failure to be perfect in every respect is a good reason not to belong to it). But it is at least an attempt to address asylum collectively in at least one segment of the globe. One of the follies of Brexit is that it has absented the UK from this attempt, whilst another is the antagonism and mistrust it has brought to Anglo-Irish relations. By no means all the costs of Brexit, and perhaps not even the greatest costs of Brexit, are economic.

 

Notes

[1] The 2019 MoU was drawn up at a time when a ‘no-deal Brexit’ (i.e. no Withdrawal Agreement) was possible, and I wonder if the references to 2020 are because, in effect, its provisions became duplicated by the Withdrawal Agreement/ Protocol. If it should emerge that there was a MoU about asylum returns, separate to the Withdrawal Agreement, then Sunak would be right to say that it was not binding in international law, but to renege on such a MoU, relating as it would to NI, would surely have very severe reputational consequences and damage relations with Ireland, the EU, and the US.

[2] The secrecy about this arises, I assume, not because of the asylum issue but because of the still existent NI terrorism threat.

There will be no post next Friday

‘Not for EU’ labelling: a case study of the Brexit mess

An important development in the Brexit process occurred at the beginning of this month, with the introduction of ‘Not for EU’ labels. As well as being important in its own right, it serves as a case study of the utter mess that Brexit has created, a mess which far from reducing ‘red tape’ has massively increased it, and a mess which is both the cause and consequence of multiple confusions. It speaks volumes for just what a mess Brexit has created that even this single issue needs a blog post of over 3000 words to disentangle what is going on, and, even then, only by leaving out a lot of the granular detail.

What is happening?

Since 1 October, all meat and some dairy products moving from Great Britain (GB) to Northern Ireland (NI) have been required to carry labels saying ‘Not for EU’. Goods bearing that label can legally be sold in NI but cannot legally be sold in the EU. This rule applies to such of those products as originated outside GB, including from the EU, if they have come to NI from GB, as well as to those actually produced in GB.

This is phase 1 of the implementation of regulations arising from the Windsor Framework. In phase 2, starting on 1 October 2024, this labelling requirement will also apply to all meat and all dairy products sold within both GB and NI. Finally, in phase 3, starting on 1 July 2025, it will additionally apply to several other products, including fruit, vegetables and fish, again in both GB and NI.

These are the rough outlines of the requirements but, as usual with Brexit, there is a lot of complexity beyond the outlines, in this case about exactly what products are affected and exactly what has to be labelled. The details of this are set out on the government’s website (some of which read like a script from Yes Minister: I particularly liked “if herbs are added to cheese or fruit to yoghurt, they are dairy products as the plant product adds flavour.”)

Although ‘Not for EU’ (NFEU) labels are not yet required for goods sold in GB, there are reports that they are already appearing on products on GB supermarket shelves, with one example, which received attention on social media last week, being an M&S ready meal in a store in Suffolk. Another example, this packet of Sainsbury’s French ham which was on sale in late September with an NFEU label in a store in England, is of note as it illustrates that the labels are applied even to produce originating in the EU.

Their appearance in GB suggests that some retailers have decided it is cheaper to have identical labelling across the UK and/or that it gives them greater flexibility in what stores they can sell the goods in and/or that it saves the costs of undertaking two rounds of package re-design as the phases unroll. For, all other issues aside, it is important to understand that implementing these regulations will cost millions of pounds for each supermarket chain, not to mention the costs for smaller businesses, all costs which are likely ultimately to be passed on to customers as higher prices.

At all events, as this labelling has begun to appear it has already attracted a lot of, mainly adverse, comment, and a certain amount of confusion – in particular, in the idea that the label denotes a ‘deficient’ produce which does not meet EU standards. The reality is, again, more complex. I tried to explain some of this in a short Twitter thread last week, but many of the responses showed that I had not done so sufficiently clearly and, in any case, Twitter isn’t a good medium for complexity. Actually, I also discussed it briefly when it first became clear, last May, what was in prospect, but that probably didn’t attract many people’s interest because at that point there were no actual labels in use. Now that there are, and with that use set to increase, it may become a major issue, especially as regards public opinion about Brexit.

So this post will explain in more detail why NFEU labelling is happening, what it means, what it does not mean, and how it relates to Brexit as a whole.

Why is this happening?

There are three parts to the explanation. The first part is to do with the general way that the EU single market works, and what leaving it means for the UK. Under EU (or any) single market rules, goods are produced to a common set of standards, and each member state adopts those standards and takes necessary steps to ensure that producers within that state adhere to them. On that basis, whether produced in Berlin, Barcelona or Bologna, they can be sold without further checks or proof of compliance – in exactly the same way as applies to goods sold within GB regardless of whether they are made in Bath, Bridgend or Blair Atholl.

If a country is outside the EU, its companies can still sell their goods within the EU so long as they conform to EU standards. However, for a country outside the EU, there is no presumption that they do so, and there could be no presumption that they do so, given that such a ‘third country’ has made no commitment to adopting a common set of standards or to taking the necessary steps to ensure that its producers conform to them. Instead, exporters have to provide the relevant certifications of conformity, which are subject to checks, including possible physical border inspections – hence the import controls that the EU now applies to goods coming from GB (although the UK has yet to introduce them on imports from the EU).

In this respect, it is irrelevant that UK standards and EU standards were identical at the time of Brexit, and still largely continue to be the same, because there is no commitment from the UK to maintain and ensure identical standards. That is, the UK may actively decide to diverge by changing standards, or may passively diverge by not adopting changes in EU standards. As regards agri-food products, which are what NFEU labelling is concerned with, the EU offered the UK a ‘dynamic alignment’ of Sanitary and Phytosanitary Standards (SPS) deal, whereby the UK would commit to neither actively nor passively diverging from EU standards. This was rejected by the UK, partly on the grounds that it would compromise ‘sovereignty’, and partly because it was argued it would reduce the scope for future trade deals (especially with the US), which might entail diverging with EU SPS (even though the EU had also offered the option of a temporary dynamic alignment agreement).

So now comes the second part of the explanation of NFEU labelling. Given these circumstances, amongst others, the hard Brexit of leaving the single market (and customs union) entailed a regulatory (and customs) border between the UK and the EU. For GB the location of that border was straightforward: the coast and airports. But for NI it implied a land border with Ireland which, despite some Brexiters’ continuing denial, was politically and arguably legally impossible. This, then, became perhaps the central complexity of the Brexit Withdrawal Agreement negotiations, leading ultimately to Boris Johnson’s Northern Ireland Protocol (NIP) which created an Irish Sea border between GB and NI which became operable in January 2021.

There followed two years of complex and bitter dispute, which I won’t summarise here (but see numerous previous posts), culminating in the agreement in February 2023 of the Windsor Framework (WF), a series of measures to make the Irish Sea border smoother and less intrusive. A key provision was the creation of ‘green lanes’ through which certain products could flow from GB to NI with minimal paperwork and no routine physical checks. Enabling this is what gives rise to the NFEU labelling, to help ensure that these products do not end up being sold in the EU single market, most obviously in or via Ireland. The result, according to Northern Ireland Secretary, and enthusiastic Brexiter, Chris Heaton-Harris will be “as close to a frictionless border as we can have”.

However, this doesn’t explain why NFEU labels will also end up being required in GB shops. So this brings us to the third part of the explanation. Whilst NFEU labels in NI are required by the WF, their use in GB is not a requirement of the WF but is purely the decision of the UK government. As I discussed when that decision was announced, it was taken for what Foreign Secretary James Cleverly called “practical and philosophical reasons”. The ‘philosophical’ reason was as a sop to Brexiters and NI unionists, aimed at reassuring them that NI was not being treated differently from the rest of the UK. The ‘practical’ reason was so that businesses do not have to use different labelling according to whether their products are sold in GB or NI (this also being the probable reason why some businesses are already using the label in both).

What does it mean?

Fundamentally, the label means one thing and one thing only: the product it is on cannot legally be sold in the EU. This leads some, perhaps mainly ‘remainer’, commentators to conclude that the product does not meet EU standards. That is a false conclusion. It doesn’t necessarily mean that it does not conform to EU standards and, at the moment, in most, and probably almost all, cases it does conform to EU standards.

However, it might not meet EU standards, and that will depend on whether all three of the following conditions are met:

·         if GB has actively diverged (e.g. the government’s decision to allow the use of the neonicotinoid pesticide thiamethoxam, which is banned in the EU) or passively diverged (e.g. by not following the EU in its post-Brexit ban on the use of Titanium Dioxide as a food additive) from those standards;

AND

·         if the product in question is one to which such divergences apply;

AND

·         if the manufacturer of the product has decided not to follow the prevailing EU standard.

So the fact that a product is marked NFEU doesn’t mean that it doesn’t meet EU standards, and it doesn’t mean that it does. It just means that there is no way of knowing for sure either way.

From the EU’s perspective, that is vital information, as it means that it is definitely not for legal sale in the EU single market as it cannot be guaranteed to meet EU standards. It does the job for which it is intended under the Windsor Framework, allowing it to use the ‘green lane’. But that job is an irrelevant one for UK consumers. This is also a point which seems to cause confusion amongst some, again perhaps mainly ‘remainer’, commentators on social media, who argue that, because the product is labelled NFEU and so cannot be guaranteed to meet EU standards, it should be avoided in favour of an alternative product which is not so-labelled.

However, this misses the crucial fact that products which are not currently labelled NFEU are just as unlikely (or likely) to meet EU standards. The absence of the NFEU mark does not mean ‘this product is for sale in the EU’. All that consumers can know is that a product legally for sale in the UK meets prevailing UK standards, whether or not it is marked NFEU. They do not know whether it meets EU standards, whether or not it is marked NFEU.

What is the GB situation?

This is especially confusing in GB at the moment given that some retailers are voluntarily beginning to use NFEU labels for some products before they are legally required to. This might lead people to conclude that Retailer A’s ready meal X, marked NFEU, is less likely to meet EU standards than Retailer A’s ready meal Y, which isn’t marked NFEU. Or that Retailer A’s Shepherd’s Pie ready meal, marked NFEU, is less likely to meet EU standards than Retailer B’s Shepherd’s Pie ready meal, which isn’t marked NFEU. But none of these conclusions has any basis: to repeat, neither the presence nor the absence of the label tells people whether or not the product conforms to EU standards.

Some of this confusion may disappear once the regulations are fully rolled out, as it may well be impossible to find directly comparable products which don’t carry the mark. However, there will still be scope for similar confusions because even then it will only apply to some foodstuffs. For example, whereas fresh fruit and vegetables will have to be marked NFEU when phase 3 comes in to force, comparable tinned fruit and vegetables will be exempt. Equally, comparability aside, the full roll-out may lead consumers to think that those types of products without NFEU labels are those that still conform to EU standards. But that would be wrong. For example, breakfast cereals will not have to have NFEU marks, as they are not included within the regulations, but it won’t mean that they meet EU standards (nor will it mean that they don’t).

The issue here is that NFEU labelling is only legally necessary for those products (effectively, perishable products) which are eligible to use the ‘green lane’ from GB to NI under the Northern Ireland Retail Movement Scheme. But, even here, there is a further complexity because, judging by experience in NI so far, retailers are going to choose to mark all products as NFEU, even though they are not obliged to. The reason, I assume, is that given the complexity of the regulations, it is much easier to make sure the retailer doesn’t fall foul of them at store level by simply marking everything NFEU.

What about future divergence?

It may be that, over time, there will be greater divergence between UK and EU standards, making it more likely that the first of the three conditions, listed above, for an NFEU label meaning that the product doesn’t meet EU standards is met. Clearly many Brexiters want this. But there is always likely to be industry and consumer pressure on the government not to diverge, as illustrated this week by the report (£) of supermarkets urging the government to legislate to match forthcoming EU bans on products with links to deforestation, which will affect many foodstuffs.

Moreover, even where such pressure fails, and divergence occurs, the big producers and retailers who operate within both the UK and the EU are likely to continue to follow the EU standard, and thus the third of the conditions outlined above will not be met. So their NFEU-labelled products will continue to be more likely to still meet EU standards. Of course, to sell them in the EU, without the label, such businesses would need to obtain the necessary certifications, but they would not have to create a different product line.

By contrast, in those circumstances, domestic, often smaller, producers and retailers are more likely to make and sell goods that do not meet EU standards. That is not (necessarily) because they will actively decide to do so, but because they don’t have any reason to actively make sure that their products meet EU standards, since they are not selling them there. So their NFEU-labelled products will become less likely to still meet EU standards.

But it will still be the case that there is no way of knowing if an NFEU-labelled product meets EU standards or not, and no way of knowing whether one not marked NFEU meets EU standards or not. This remains the case even if there is massive future UK divergence from EU standards. Consumers won’t avoid that by avoiding NFEU labelled products, because it will be equally true of products which are not marked NFEU. As and when UK standards change, any product sold in the UK will potentially not meet EU standards, whether or not it bears the NFEU label, and may still do so, whether or not it bears the NFEU label.

It is worth adding that this entire issue may be overtaken by events. If there is a Labour government, and if, as Labour have consistently implied, but not quite said, that government seeks and secures* an SPS dynamic alignment deal with the EU then, as I understand it (I stress this because there are so many complexities and unknowns), the entire need for NFEU labels would disappear.

Confusion abounds

The deep origins of this expensive and confusing mess lie in multiple confusions on the part of Brexiters. One of the most infamous phrases in the Brexit process was Liam Fox’s suggestion, made in 2017 when he was International Trade Secretary, that ‘this should be the easiest trade deal in history’. Most people who remember it probably think it was akin to similar hubristic claims, such as Michael Gove’s ‘we will hold all the cards’. In fact, it grew out of the belief by supposedly more ‘sophisticated’ Brexiters that the fact of existing regulatory alignment between the UK and the EU would mean that a trade deal could be struck that would effectively replicate single market membership, including the absence of many non-tariff barriers (i.e. including regulatory and standards divergence).

As I discussed at the time of Fox’s comment, it was nonsense, and it has never really gone away. Some Brexiters, lamentably including David Frost during the Brexit trade negotiations, simply can’t seem to understand that the issue isn’t just about the actual standards of products, it is about being part of the systems that certify, register, and uphold those standards. Ironically, it is this same lack of understanding which creates confusion amongst those assuming that the NFEU label necessarily means that the product doesn’t meet EU standards.

Perhaps more importantly, the confusion, or something like it, seems to inform current Labour policy. Leaving aside SPS, where, as noted, that policy is most likely one of dynamic alignment, Labour seem to think that continued regulatory alignment in general is a way of solving the problems of Brexit. If so, that is only half-true. It is true that maintaining alignment with the EU (not as part of a specific agreement, but simply by unilateral UK shadowing of EU regulations and standards) will make life easier for British businesses and other organizations, to the extent that it does not force them to produce to two sets of rules. Though, even then, the benefit may not be huge since, as noted above, in practice many firms will simply follow EU rules – the case of arsenic levels in baby food being one recent example. However, more fundamentally, alignment in itself does not enable UK products to be sold freely in the EU because, to repeat, it’s not just about the standards, it’s about being part of the systems around the standards.

The other deep root of the NFEU situation, of course, is the Brexiters’ persistent refusal, going back to before the referendum, to understand or to be honest about the implications of Northern Ireland for (hard) Brexit, and vice versa. That is what ultimately led to the Windsor Framework and NFEU labelling, and also, indirectly, to the government decision to sweeten the pill for unionists by rolling out that labelling across in GB as well as NI, even though it didn’t have to and, anyway, the unionists are not impressed by it.

Against this background, British consumers can hardly be blamed if they, in turn, are confused by the labelling, and falsely, but quite understandably, take it to be a mark of inferior produce. It’s easy to see how ‘Not for EU’ will become interpreted as ‘not for you’. If that leads to public consternation, and deepens the unpopularity of Brexit, then it will be an irony the Brexiters richly deserve. They have endlessly deceived themselves and the public by treating hugely complex issues of international trade and supply chains in highly simplistic and deeply misleading ways, and they have also endlessly demanded that the UK diverge from EU standards.

So If the public are now misled by the NFEU labels, which arise from this complexity, and simplistically take them to mean that Brexit has made the food they buy unsafe, then the Brexiters will have no one to blame but themselves.

 

 
*It is an important question as to whether the EU would now agree to such a deal. It’s true, as noted earlier, that this was offered to the UK, but that was in April 2021 in the context of the unresolved NIP disputes. That may not still hold good post-Windsor Framework, which the EU may well regard as having settled matters to its satisfaction. It is certainly the case that Labour will not secure an SPS deal if, as some statements have suggested, it has in mind a ‘New Zealand-style’ equivalence regime – which has already been proposed by the UK and rejected by the EU. The difference between ‘dynamic alignment of regulation’ and ‘regulatory equivalence’ is, again, a very complex issue, as explained by a House of Commons Library research briefing.

Note: I’m not 100% sure yet, but I don’t think there will be a post next week.

In the doldrums

Brexit is in one of its periodic doldrums. That’s not to say that all the ongoing problems and miseries it has created have abated, or that the almost daily reminders of them have ceased. And of course the perennially unresolved Northern Ireland Protocol row continues.

More of the same

What also continues is the rather lame and repetitious attempt by Brexit ideologues, which I discussed last week, to refute the now irrefutable fact of Brexit’s economic failure. This week, the baton was passed to Larry Elliott, the Lexiter Economics Editor of the Guardian, and Telegraph columnist Roger Bootle (£), one of the members of Patrick Minford’s now disbanded Economists for Brexit group. I call it ‘baton passing’ because there is an inescapable sense of, if not actual coordination, then, at least, shared endeavour in what these people write. For example, Elliott, like Robert Tombs last week, invokes an IEA-dominated ‘Briefings for Britain’ report as his evidence for the lack of Brexit damage, showing, incidentally, the latest strange conjunction of left and right that Brexit has created.

The main line that all of them currently share is the deeply illogical one that, since the UK is experiencing severe economic problems, and since other countries are experiencing severe economic problems, then ‘therefore’ the UK’s economic problems cannot be due to Brexit. They also invariably anchor their dismissal of all negative economic assessments of Brexit in what they take to be the failure of the pre-referendum short-term economic forecasts of a vote to leave.

That is a tricky claim to unpick, because it’s true that remain campaigners were at fault in using it as if it were an unconditional prediction. In fact it was based, like all such forecasts, on numerous assumptions, some of which were not met (e.g. that David Cameron would, as he had promised, immediately trigger Article 50, or that the Bank Of England would not make any interventions to stabilize financial markets, which in the event it did). So although the worst warnings proved false, and perhaps would have done so even if all the assumptions had been met, that isn’t the slam-dunk the Brexiters imagine it to be. Anyway, whilst the remain campaign did use those forecasts in a highly simplified and therefore misleading way, that’s not something which those whose campaign included slogans like ‘£350 million a week for the NHS’ and ‘Turkey’s joining the EU’ are in a good position to criticize, frankly.

In any case, why keep bringing all this up now? The answer is that it is in order to pursue another deeply illogical argument: that since a warning of possible damage was (supposedly) once proven false, then ‘therefore’ all warnings of damage are false, and ‘therefore’ all reports of damage are false. The same goes for another commonality in the current round of Brexiter denial, shared by both Elliott and Bootle, along with Dominic Lawson as discussed last week, which is to take Mark Carney’s recent, and highly questionable, claim that due to Brexit the UK economy has fallen from being 90% the size of Germany’s in 2016 to being 70% of its size now. But, even if that is bogus, to keep repeating it is again to suggest that since one statement of the damage of Brexit is false then ‘therefore’ all such statements are false.

Bootle, whose article is slightly more balanced than most of them, does concede that Brexit has adversely impacted trade and investment, something Elliott ignores or dismisses, but both of them continue to insist that the benefits of Brexit remain in the future. That’s something else they share with the other Brexiter apologists discussed last week, though the important issue is the ever-present one that they undoubtedly have totally different ideas of what those benefits would be.

We can expect all this to rumble tediously on at the abstract level of arguing over macro-economic indicators, even as just about every business affected by Brexit groans under its impact. Those complaining include Next’s Chief Executive Lord Wolfson, an advocate of Brexit but now one of the many saying “this is not the Brexit I wanted”. Yet again the issue is the multiple meanings of Brexit, and the original sin of the Vote Leave campaign’s deliberate refusal to specify any particular one. I won’t discuss Wolfson’s latest intervention here because I did so on the previous occasion when he said the same thing, along with some other pro-Brexit business leaders, almost a year ago, in a post entitled ‘Not my Brexit’, and, depressingly, most of it still applies, a sign of the glacial slowness of the entire Brexit debate.

Reality wins, but painfully slowly

Also rumbling on is the gradual death of all the hopes and promises of Brexiters. This week it was finally announced that the plan to replace the Royal Yacht Britannia has been shelved. It was one of those symbols, like restoring Imperial units of measurement (of which we have heard nothing since the pathetic ‘public consultation’), that used to swell Brexiter hearts and hopes (£). Those hopes have now been dashed on the prosaic, but revealing, fact that Brexit Britain is simply too poor to afford such fripperies, and with potential Russian attacks on undersea internet cables the Navy has better uses for £250 million than a Boris Johnson vanity project.

Rather more substantive are the new concerns that have been raised about the reckless plan to scrap EU retained law by the end of next year, the more reckless as it has emerged this week that there is an even greater volume of law affected than was previously realised. This plan is also symbolic, though in a particularly asinine sense since the symbolism of getting rid of ‘foreign law’ is negated by the fact that, as retained EU law, it was written in to UK law by parliament as part of Brexit. Not to mention the fact that much of it was heavily influenced by UK priorities when an EU member. But, unlike the yacht plan, it is something that has the potential to cause real chaos.

That possibility reveals the underlying reality that, far from being some horrible regulatory burden holding the UK back, most of it is the vital regulatory infrastructure than enables to the UK to function at all. To properly go through, check, adopt, amend or repeal all this might take decades, according to law and policy commentator David Allen Green. Originally conceived by Jacob Rees-Mogg, the legislation involved was strongly endorsed by Rishi Sunak during his original (failed) leadership campaign, but there have been rumours for weeks that, with Rees-Mogg out of the government, Sunak wants to delay or even abandon it.

Already Rees-Mogg is fighting back from the backbenches, with a ludicrous article in the Telegraph (£) that simply denies all the practicalities. It was robustly taken apart by legal expert George Peretz KC, but legal issues aside Rees-Mogg is on shaky political ground when he insists that those questioning – or, as he puts it, “squealing” about – the legislation do so out of opposition to Brexit itself. For what is significant about the latest reports is that the concerns come from a committed Brexiter, Theresa Villiers, on the grounds of their impracticality. Again, reality is gradually winning out against Brexiter fantasies, but only at a crawl. As Nick Tyrone put it this week “Brexit is melting - but slowly”.

Northern Ireland: stasis

It's worth recalling the most notable role Villiers played in the Brexit referendum. For it was she, then the Northern Ireland Secretary, who used the weight of that office to echo Boris Johnson in saying that Brexit would have no implications for the Irish border. It is of course that falsehood, or what has arisen from it, which is now the main reason why the present doldrums are likely to be only a temporary calm. Most of us are so inured to it that what is actually astonishing hardly registers now: a full three years since the Northern Ireland Protocol was agreed, almost two years since it supposedly came into operation, and some eighteen months since the UK first unilaterally extended the grace periods on some of its provisions, the fundamental nature of the Protocol is still not settled and is still under negotiation.

The process has itself effectively been in the doldrums for over a year, to some large degree because of the political chaos of having  had three Prime Ministers during that period. In public, at least, nothing much has changed in terms of UK demands since the July 2021 Command Paper, or in terms of the EU position since the October 2021 proposals for adjustments to the Protocol (apart from the EU unilaterally granting an assurance of the supply of medicines to Northern Ireland). Meanwhile, the Northern Ireland Protocol (NIP) Bill continues to trundle through Parliament, whilst, formally, EU infringement proceedings against the UK for its failure to implement the original terms also continue.

The sense is that neither the UK nor the EU really know what to do. The EU position seems to be to wait and see how the politics plays out in the UK, whilst the UK government seems to just be hoping that something turns up. Both sides, of course, have many other things to occupy them. But this limbo can’t continue forever, not least because of where that leaves Northern Ireland and Northern Irish politics. By not, as he had promised – or threatened – immediately triggering Assembly elections, and this week continuing to postpone setting a date for them, the current Secretary of State, Chris Heaton-Harris, has apparently acknowledged that the likely outcome would not change anything in the absence of a resolution to the negotiations with the EU.

In so doing, the government has either deliberately or by default accepted that what exists is now what I have called a ‘quadrilemma’, in which restoring functioning devolved government is one of the moving parts along with the original ‘trilemma’ of hard Brexit/ no land border/ no sea border. One likely outcome of this quadrilemma is that no conceivable version of the NIP would be accepted by the DUP, unless it softens its demands, and if that is so then devolved government is in effect permanently suspended, with all that implies for the Good Friday (Belfast) Agreement (GFA), which will be 25 years old next year.

That anniversary is significant in all kinds of ways, including likely US displeasure with the UK if, by the time it falls, the Assembly is still not functioning. It is hard to feel sympathy with the DUP, given its support for hard Brexit, but it is certainly possible to do so for the unionist community. For the way things have developed was always one possible version of the way in which Brexit, unless in the very softest of forms, and perhaps even then, was bound to de-stabilise the fragile calibration of the GFA.

This is exactly what Tony Blair and John Major warned of in 2016 and exactly what Villiers, Johnson and other Brexiters denied. As for the consequences of the specific form the NIP took, for all that Heaton-Harris now says that these were not known when it was agreed, they were spelt out in detail in a civil service briefing at the time. In any case, the core objection of unionists is not to the details of its operation but to the basic principle of a trade border between Northern Ireland and Great Britain. It’s simply absurd to pretend that this was an unforeseen consequence of the 2019 deal: it was the front and centre of that deal.

However, as everyone knows, the main barrier to Sunak agreeing a deal with the EU lies less in Belfast than in London, with his own fractured party. This week, Maros Sefovic has again been making very conciliatory statements about flexibility, and it’s clear that a deal is there for the doing (£). But that’s been true for a long time. Whether Sunak can and will do it remains unclear.

Sunak: no discernible agenda

In fact, Sunak’s entire agenda as Prime Minister, beyond that of clearing up the mess of the Truss mini-budget, is difficult to discern, and nowhere more so than as regards the NIP. So far as I know he has very little knowledge of, or prior interest in, Northern Ireland, although to his credit he attended the British-Irish Council summit this week, the first Prime Minister to do so since 2007. It’s known, or at least reported, that as Chancellor he opposed taking a ‘hard’ (i.e. illegal) line on the negotiations by pursuing the NIP Bill, apparently for fear of the economic consequences, but his overall position is ambiguous.

Similarly, it is unclear how he might approach the EU. There is some mood music that the tone of his interactions with EU leaders have been positive, with Irish Foreign Minister Simon Coveney making some especially optimistic comments, and he seems to have had harmonious meetings with Emmanuel Macron and Ursula von der Leyen this week. Nevertheless, he is extremely inexperienced in foreign policy, and his blunder in only going to COP27 under pressure either indicates a maladroitness in international affairs, or a lack of interest in them compared with domestic issues or, worse, that he initially saw ignoring COP27 not just as having lower priority than those issues but as a way of signaling sympathy to the right of his party that he, like them, is sceptical about Net Zero.

Even if that wasn’t the case, it certainly wouldn’t be a surprise if Sunak’s overwhelming priority is to prevent another outbreak of Tory civil war. And given that the ERG and like-minded Tory MPs are likely to oppose any deal with the EU over the NIP, it’s questionable whether he will be strong enough to over-ride them, even assuming he wanted to.

Same old Tory Party

That isn’t going to change however long the process drags on for, and it isn’t going to be resolved by the ongoing ‘technical talks’ because it is a political decision. In fact, by having gone on for so long, it is now very likely to intertwine with what happens over EU retained law. The ERG might conceivably swallow ‘backsliding’ on one of these, if only to avoid the sheer absurdity of potentially bringing down yet another leader, but not both. And with them and the Tory right generally - including someone I’d been happily unaware of before, Lee Anderson, but who even on first encounter seems worthy of a special award for his prolier than thou self-importance, nastiness and ignorance - frothing with spittle-flecked anger over asylum seekers, how long before their existing disdain for Sunak ‘the socialist’ turns into open revolt?

These three issues are linked not just in being pre-occupations of the Tory Right, but in showing the persistence of Brexity post-truth politics. For, as Professor Gerhard Schnyder sets out in his latest Brexit Impact Tracker, hopes that the collapse of the Truss mini-budget in the face of reality would be a turning point towards realism and pragmatism have proved over-optimistic, except in terms of the forthcoming budget and then only in a limited way, if at all. It’s notable, for example, that Trade Secretary Kemi Badenoch seems still to be talking down the validity of OBR calculations.

Certainly as regards the scrapping of EU retained law, along with Rees-Mogg’s continuing denial of reality, David Jones of the ERG  is quoted as saying (£) he “absolutely believed” it could be completed by the end of 2023. Regarding asylum seekers, it is reported that “Ministers insist that the arrival of small boats must simply be stopped, but Home Office staff say the focus should now be on improving the dysfunctional asylum processing system”. And, of course, as regards the NIP, Brexit Ultras have simply never accepted the basic reality that hard Brexit entails a border. The one way in which the NIP issue is different is that, if Sunak does completely give in to the Tory right, which would put the UK on the path of breaking international law as well as a potential trade war, he might very well encounter a rebellion from the other wing of the party.

Politics on hold

For now, almost everything in UK politics is on hold until the Budget statement, but it is hard to see how the NIP can be left unresolved for very long after that. Perhaps it will be settled via some fudge that the DUP and ERG will accept. Perhaps, too, the scrapping of EU retained law will quietly be extended to the almost indefinite future. Perhaps, as happened under Johnson and looked set to continue under Truss, there will be a gradual loosening of immigration restrictions. Perhaps, even, and if only for the most disreputable of reasons, a fair, workable and legal asylum system will be established, including a sensible agreement with France.

Indeed perhaps Brexit itself will be permanently in the political doldrums, a constant drag on the British economy and on British international standing, yet scarcely discussed as if it were the habitual drunken lechery of an elderly uncle at family parties: unpleasant to contemplate and considered in bad taste to mention, until he finally dies at which point everyone says how much they loathed him.

Or perhaps this is just a hiatus until the next crisis, such as a massive rebellion from the Brexit Ultras over one or other, or all, of the NIP, retained law, and immigration. That would require the Ultras to be willing to place extreme dogma ahead of both practicality and political loyalty, but that is not exactly to put an outlandish strain on the imagination.

It’s not easy to say which scenario is the more likely, nor which is the more depressing.

Brexit constipation

It was always going to be the case that post-Brexit the UK and the EU would be in ongoing negotiations, for which the Trade and Cooperation Agreement (TCA) would be the basis and from which the relationship would evolve. That was assured if only by the Brexiters’ truism that ‘we are leaving the EU, but we are not leaving Europe’. The basic facts of geography, economics and international relations make such continuing negotiations inevitable.

Boris Johnson’s recent G7 speech at the Munich security conference may have tried to ignore that inconvenient truth - by mentioning the EU only twice, and then disparagingly – just as he wants to avoid all mention of Brexit, but it doesn’t change the reality. It’s a reality which takes the concrete form of the crisis that is silently engulfing Britain’s trade with the EU, its biggest trading partner. There are increasing delays in the shipping of goods, with shortages and price rises as a result. Some firms, especially smaller ones, have simply given up on trading. Meanwhile there has already been significant damage to the financial services industry and warnings of worse to come.  

So, whilst rarely in the news headlines, sector after sector is now reporting the impact of the new barriers which were the inevitable result of leaving the customs union and the single market. Professor Daniel Kelemen of Rutgers University has created an astonishing archive of, so far, 200 reputable news stories over the last month or so about the quite extraordinary damage which is being done by Brexit.

However, what was not inevitable, although always highly likely, was that rather than these ongoing negotiations being about a relationship evolving from the TCA they continue to endlessly revisit and replay the debates that led to it. Brexit is thus stuck. At the heart of this lies the continuing refusal of the government, and Brexiters more generally, to accept what Brexit means and to accept what the UK agreed to, both in the TCA and in the Withdrawal Agreement (WA), including the Northern Ireland Protocol (NIP).

One index of that refusal is the replacement of Michael Gove as co-chair of the Joint Committee overseeing the WA/NIP by David Frost, who negotiated the TCA. Frost will also be the UK chair of the new Partnership Council to oversee the TCA. This in itself is suggestive of a desire to frame the post-Brexit negotiations in terms of those which led to the TCA rather than in terms of what might develop from it. It is also indicative of a more hard-line approach (£), in contrast to Gove’s supposed weakness, with Frost’s monocular focus on ‘sovereignty’ at its heart (the EU, meanwhile, has moved on, although as Jon Worth explains on his blog that presents its own issues).

A hard Frost

The irony is that it was Frost’s approach, enabled, of course, by Johnson and building on the red lines established by Theresa May, which created precisely the trade barriers which are now causing so much damage. The only way in which these supposed ‘teething problems’ will be reduced (they cannot be eliminated without reversing hard Brexit altogether) is if the UK agrees to align more closely with EU rules.

In particular, aligning on sanitary and phyto-sanitary (SPS) rules would, as suggested in my previous post, ease the pressure on some of the industries suffering the most visibly, such as fishing and agriculture, and unblock some of the problems that Northern Ireland is facing. It seems clear that the EU would be amenable to this. Heeding calls from the chemicals industry to reconsider how the UK relates its regulation to the EU REACH system would be another way of improving on the TCA. Similarly, were the UK to accept a mobility agreement with the EU it could reduce some of the damage to services trade, along with other measures such as those suggested by Sam Lowe of the Centre for European Reform.

Perhaps Frost will prove more pragmatic than his previous conduct suggests, but the signs are not good, as Mujtaba Rahman, the respected analyst at Eurasia Group, has convincingly argued this week. What seems more likely is a continuation, or an escalation, of the bellicose rhetoric of ‘retaliation’ against the EU for implementing the agreement that the UK itself has signed up to. As both Rahman and Rafael Behr – in an interesting analysis which I’ll return to later – suggest, there is considerable domestic political mileage in continuing to pick fights with the EU. The economic damage, which might in other contexts be a national crisis, seems hardly to matter to this government and it doesn’t seem to be paying any political price for this.

Labour’s deafening silence

One reason for that is Keir Starmer’s deliberate and now deafening silence on what is happening. The one thing which an Opposition leader can do is influence the news agenda. If Labour were minded to, what are currently a stream of apparently disconnected stories, often buried in the business pages, could be pulled together to create headline news of massive governmental economic incompetence. Of course Johnson would try to twist this as Labour being anti-Brexit, or seeking to reverse Brexit, but if Starmer were canny he would position the attack in the fertile soil of Johnson having betrayed Brexit by hastily signing a deal for his own political convenience without regard for what it meant for ordinary people and for the country in general.

That is, after all, what some and perhaps many leave voters now think and so would not even necessarily entail alienating former Labour leave voters in the ‘red wall’. Such voters were probably not, for the most part, those for whom Brexit was a huge over-riding issue in and of itself but, having voted for it, they then ‘lent Johnson their vote’ to ‘get Brexit done’. That implies only the softest of commitments to voting Tory, and one very receptive to the charge that Brexit may have been ‘done’ but it was ‘done wrong’ by the Tories. The other side of the coin is that, in pussy-footing around the supposed sensibilities of red wall voters, Labour are treating the bulk of their supporters with contempt.

Electoral considerations aside, Starmer’s failure of leadership on, not Brexit, but the UK’s post-Brexit future is a catastrophic dereliction of duty. Who else is going to speak up for those being damaged by what is happening to this country’s trade? It’s also a major strategic error. He has a once in a generation opportunity to cast Labour not only as the party of business but, in doing so, as the protector of the working-class jobs and communities that are dependent on trade with the EU. It is ironic that Starmer is now replicating the way that, as I once described it, Jeremy Corbyn approached Brexit like an inordinately straitlaced Victorian confronted with a piano leg. In this way, too, Brexit is stuck.

The Brexit Ultras are stuck in the same old loops

Whilst the government is being given a free pass by Labour to escape scrutiny of the effects of the Brexit it agreed, it does not follow that it is giving Brexit Ultras what they want. Again, Brexit is stuck in a recurrent loop because even as Johnson doubles down on ‘sovereignty’ with Frost’s appointment, he is finding, like all his recent predecessors, that the Ultras want more. So, rumbling away, are all the same old battles. Hence former Brexit Party MEP Ben Habib, bemoaning the new barriers to trade that come with the TCA, makes – apparently in all seriousness - the bizarre jump of logic that the TCA should therefore be scrapped, thus resurrecting no-deal Brexit 2.0. Bizarre because, of course, that would simply mean that in addition to those barriers of trade there would also be tariffs and quotas. Yet he surely isn’t alone in wanting to revive the ‘Go WTO’ call of yore.

Meanwhile, Arlene Foster and other Northern Irish unionists (plus, for some reason, the hapless Habib) are seeking a judicial review of the NIP. The DUP have, of course, always been opposed to Irish Sea border but now the ERG are also calling for the NIP to be scrapped (£). They believe, quite wrongly, that Article 16 of the Protocol allows the UK to do just that (for an accurate explanation of what Article 16 does and does not allow, see David Allen Green’s limpidly clear blog post). In a rational, or even half-honest, politics, this might seem truly astonishing. After all, the WA/NIP was the ‘oven ready deal’ on which Johnson fought and won a General election and for which all the ERG MPs subsequently voted.

But as I noted at the time, “many in the ERG will now be thinking that Johnson’s deal was only the bastard offspring of May’s ill-fated premiership and the ‘remainer parliament’, and feel no allegiance to it. They kept quiet during the election campaign, which required them to pledge support for Johnson’s deal, but that won’t necessarily last”. That proved to be true, because soon after having voted for it, and Johnson signing it, many of them denounced the entirety of the deal as not being “sovereignty compliant”. Now the issue is coming to a head, and it could spell real political trouble for Johnson and, more importantly, for the country.

The obvious problem is what is the alternative to the sea border? And on this the Brexiters are again stuck, returning to the endlessly debunked ideas of ‘technological solutions’ to create (as in David Trimble’s recent article in the Irish Times) an “invisible” land border or, as the ERG have it, “alternative arrangements” for the “mutual enforcement of the North/South border” (I fear it is only a matter of time before the ‘Malthouse compromise’ gets another airing). That is again bizarre since if these solutions really did exist then why could they not be used for the sea border? But, more to the point, it simply returns us to all of the issues about the Irish border that were discussed ad nauseum during May’s premiership. The underlying realities of the Good Friday Agreement have not changed. But nor, too, has the underlying refusal of the Ultras to accept these realities – regarding them instead as a contrivance of the EU and of Ireland to thwart Brexit.

As things stand, the government this week re-affirmed its commitment to the full implementation of the NIP. But this was at a meeting of the Joint Committee with Gove still co-chairing. It may be that when Frost takes over that will change, especially with the new pressure from the ERG. If so, there will be a monumental crisis. That meeting also saw the UK seek extensions to the various grace periods on full implementation, in order to develop the necessary systems. Yet, as with the entirety of both the WA/NIP and the TCA, the lack of readiness stems from the government’s own decisions – in this case not to extend the transition period. This too roots back not simply to Johnson’s refusal last year to extend, but to the heated arguments within the Tory Party during the summer of 2017 about the very idea of there being any transition period.

In these and other ways the Brexiters are proving incapable of ‘moving on’ from Brexit. As a result, the whole country is stuck in the debates of 2017-2019 when, it will be recalled, ‘Go WTO’ and ‘alternative arrangements’ were endlessly proposed as alternatives to the Brexit deals. But those deals are now done, leading to the question, posed this week by (another) blog by David Allen Green, of whether, if this recursivity continues, the WA/NIP and TCA “will be able to withstand such sustained political assaults.”

The political psychology of Brexit, part 94

Green’s discussion begins with reference to the remarks of Mujtaba Rahman and Rafael Behr which I linked to above, both of which suggest that continuing antagonism is more or less assured. Behr, in particular, locates this within a political psychology of Brexiter grievance and victimhood, with its associated “heroic defiance”. I think that is right, and it is a psychology I have been writing about on this blog since November 2016. But I’d push the point a bit further.

What seems to be happening now is the drawing together of several strands within that psychology. One is the persistent idea that any actual Brexit ‘isn’t what we meant’ or, in other words, a refusal to accept the actual consequences of Brexit as being the result of the UK’s choices. That then morphs into the idea of EU ‘punishment’ and even into behaving as if Brexit is, somehow, being forced on the UK. In some ways it has always seemed as if the Brexiters would have been happier had they lost the Referendum but, now, they have found a new way to wallow in bellicose victimhood. The result is certain kind of cakeism: Brexiters have the cake of a Brexit delivered and yet are still able to eat the cake of Brexit grievance.

The consequence of this is that no one else can ‘move on’ either. Erstwhile remainers, or for that matter those who are neutral about it, can hardly ‘try to make Brexit work’ when the government’s rigidities preclude assisting in that, whilst the Ultras are still calling into question the entirety of the Brexit deals. Not only are they stuck, but so is the whole country.

But the context has changed

However, although in all these ways the Brexit saga is repeating itself, what is crucial is that the formal Brexit process has moved on. Before the Referendum, the Brexit debate was purely domestic. Afterwards, at least once Article 50 was triggered, that debate continued to be parochial but at least ran into the realities of negotiating with the EU. But, now, Brexit has been defined in international agreements. The WA/NIP, in particular, is binding in international law and the NIP is of especial interest to the new US administration. So the legal and geo-political costs of breaking or flouting it would be very high, as would the economic costs of breaking the TCA (which has still to be ratified by the European Parliament, by the way).

Brexit is therefore no longer simply a matter of domestic politics. This means that the childish refusal of Brexiters to be realistic about what Brexit means and to take responsibility for the consequences of the choices they have forced upon the country gets more dangerous and damaging by the day. That damage is most obviously economic, but it is also reputational. Many Brexiters, even as they angrily denounce others for ‘talking Britain down’, will be ignorant of, or indifferent to, it, but they have made Britain a laughing stock internationally, as shown by a recent scathing article in the New York Times.

More concretely, as illustrated by the striking image at the Munich security conference of Merkel, Macron and Biden discussing transatlantic security, far from emerging as ‘Global Britain’, Brexit is rendering the country marginal. The Brexit press whined about Biden ‘snubbing’ Britain at the conference by not mentioning it in his speech, but this is what marginalization brings. Yet even as it is happening the Brexiters indulge themselves in fantasies such as Daniel ‘single market’ Hannan’s idea of a UK-India trade deal (£) based upon what he fondly imagines to be the ‘sentimental’ attachments between the two countries. Like the CANZUK fantasy that some are still pushing, it’s a good example of what has been called the ‘Ladybird’ thinking behind Brexit, which as a prospectus for Britain in the twenty-first century it is worse than risible.

The urgent need is to improve trading and diplomatic relations with the EU, but that can’t happen whilst Brexiters are stuck in the past, whether that be the 1800s, the 1950s or the endlessly revisited battles of the last five years.

Painful

I don’t think there is any reason to think that any of this is going to improve. Looking back over the last few years of this blog I find periodic posts (also here) arguing that ‘now’ Brexiters and the Brexit government need to get real. It never happens. Or perhaps it would be better to say that it can’t happen, as it is in the nature of Brexit to deny reality. I had some hopes - never great, certainly naive and now pretty much dead - that with the TCA there could be some kind of re-set or normalization of UK-EU relations. It’s already clear that that will not happen, at least in this political generation.

There is a report today from the invariably reliable Tony Connelly of RTE that “senior EU figures are contemplating a major re-set of relations with the UK” to coincide with the ratification of the TCA in the hope of creating a more harmonious atmosphere. But the reality is that ever since 2016 almost all the antagonism has been generated by the UK’s Brexit Ultras rather than the EU. At all events, it takes two to tango and for the reasons given in this post Brexit Britain seems unlikely to dance, stuck as it is in the same old patterns.

This Brexit constipation is here to stay. There is, to continue the scatological metaphor, currently no political laxative powerful enough to shift it. It will take an enema, which is not yet in prospect and, if and when it comes, will be undignified and painful.

 

Apologies that there was no post last week – I was unwell – but many thanks for those who sent good wishes or who remarked that they missed (and valued) the blog.

My book Brexit Unfolded. How no one got what they wanted (and why they were never going to) will be published by Biteback Publishing in June 2021. It can be pre-ordered from Biteback or via other online platforms, including Waterstones, as a paperback or e-book.