Brexit: the next phase

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

The Rock took ages

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

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

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

What has been agreed?

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

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

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

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

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

Sovereignty betrayed, part 94

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

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

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

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

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

Brexitism and the Beeb

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

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

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

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

A new phase in the Brexit process

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

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

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

What the new phase will look like

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

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

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

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

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

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

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

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

Nine years on

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

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

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

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

 

Notes

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

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

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

‘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.

A normal week in crazy Brexit Britain

It has been a pretty standard week for directly Brexit-related news – I put it that way because in many ways almost everything the government does, from demanding that the BBC project ‘British values', to badging the new rail system as ‘Great British Railways’, to giving British people the borders they ‘deserve' can be seen as framed by Brexiter sensibilities. And, of course, this week’s Dominic Cummings show grows organically out of the politics of Brexit, not least because but for Brexit neither he nor, possibly, Boris Johnson would ever have been in power. It can also be seen as the (final?) implosion of the elevation of the Vote Leave cabal to the centre of government in 2019.

More of Cummings below, but, these wider issues aside, what has been going on with Brexit this week is mainly a continuation of the issues discussed in my previous post, namely the row over the Northern Ireland Protocol (NIP) and the nature of Britain’s post-Brexit trading relationships.

The NIP: the calm before the next storm?

As regards the NIP, RTE’s Tony Connelly provided his usual excellent commentary of the current situation in his blog post last Saturday. It gives a wealth of detail on the issues at stake, which I won’t repeat. Nor will I repeat the points I made last week about the deeper roots of this current situation in Northern Ireland.

However, there is one aspect of those roots which I didn’t mention but which is an important part of what is happening now. From the beginning, it was an article of faith amongst Brexiters that a trade deal with the EU would be easy because the UK was already aligned with EU rules. This was stated by numerous leading Brexiters before the referendum, was the substantive rationale for Liam Fox’s much-mocked ‘easiest deal in history’ claim, and was re-stated in David Davis’s preface to the first Brexit White Paper in 2017:

“We approach these negotiations from a unique position. As things stand, we have the exact same rules, regulations and standards as the rest of the EU. Unlike most negotiations, these talks will not be about bringing together two divergent systems but about managing the continued cooperation of the UK and the EU.”

As I and many others pointed out whenever such claims were made, they were nonsense, precisely because this was a unique situation in which the aim was not to move towards alignment (in which case, of course, existing alignment would make that process effortless) but to move away from it; not to bring two divergent systems together, but to make two aligned systems diverge. This became all the more true under Boris Johnson and David Frost’s approach to Brexit, which made freedom to diverge from EU regulations the acid test of ‘sovereignty’.

The same basic confusion is now being played out in the NIP rows, especially with respect to sanitary and phyto-sanitary (SPS) rules and checks. Frost repeatedly, for example at last week’s Select Committee, makes the point that the EU should operate a lighter, ‘risk-based’ approach for the UK because of “the fact that we both operate the high food standards which are, in most areas, extremely similar”. Yet at the same time he is adamant that dynamic alignment with EU rules is unacceptable.  So he wants the benefit of being aligned … without making any commitment to being aligned. It is a specific version of the more general Brexiter proposition, discussed in last week’s post, that the UK has left but shouldn’t be treated as if it has left.

It is this which creates what Connelly describes as the current “dangerous stand-off” between the UK and the EU, and although there is seemingly a lull in hostilities at the moment it seems highly likely that there will be a further outbreak in the next few weeks. The European Commission President, at the EU leaders’ meeting this week, made it clear that the NIP must be fully implemented, whereas the UK continues to seek “common sense” solutions (translation: don’t hold us to what we agreed), and wants these in place in time for the mid-June ‘marching season’ in Northern Ireland.

Some believe that Frost will quietly cave in, via some face-saving formula, and that is quite possible. But my sense remains (for reasons discussed in detail in my post a couple of months ago) that he and the government are convinced that the ‘hardball’ tactics of flouting the NIP pay dividends. If so, then after this period of resumed negotiations there will be another explosion. That diagnosis is given extra weight by calls this week from International Trade Secretary Liz Truss to scrap Irish Sea border controls altogether.

Strange days indeed

In this, Truss is presumably burnishing her credentials with the party membership as a possible successor to Johnson (as, no doubt, with her hardline anti-immigration stance, is Priti Patel), in which she is aided by the Brexit tabloids’ adoration of her for delivering the UK’s new trade deals – or deal, really, since the only substantively new trade deal she has (almost) done is that with Australia. Yet the Brexiters’ reactions to that deal have been mixed. Some are breathlessly enthusiastic, such as Dominic Lawson (in a Sunday Times article demolished almost line-by-line by the NFU’s Director of Trade and Business Strategy). Others, notably the ‘journalist’ Isabel Oakeshott, are appalled that it marks “the death knell of the traditional British farm” (an outburst for which she was roundly mocked).

Certainly there is something strange in the Tory Party choosing to alienate what has always been a central part of its political constituency but, then, as its treatment of the City shows, the Brexit Tory Party is a very different beast to that of bygone years. That said, trade expert Sam Lowe argues that, in practice, the deal with Australia is unlikely to have a huge impact, whether that be on farmers or consumers, to the extent of it being “almost unobservable”. That is because, in brief, tariff abolition is no longer the central issue in terms of trade liberalization, and because nothing will change the fact that the UK and Australia are geographically remote – and, as the Brexiters never seem to understand, distance is a key determinant of trade volumes.

Nevertheless, the strangeness of the situation can be seen by imagining what would have happened if, whilst a member of the EU, the EU had struck a deal with Australia on similar terms (something highly unlikely precisely because of the possible effects on farmers). Almost certainly the Brexit press would be denouncing it as a ‘Brussels Betrayal of British Beef’ and, again almost certainly, the UK government would have vetoed any such deal. Yet when made by Britain, it is hailed as a triumph. (It’s worth noting that this point was raised by Emily Thornberry, Labour’s Shadow Trade Secretary this week, a further welcome sign that Labour are now becoming bolder in challenging the government’s post-Brexit policy).

Nor does the strangeness end there. Within the Brexiters’ central argument that what was crucial was the restoration of the sovereignty of the British parliament, a specific sub-theme was that with Britain making its own trade deals, these would be subject to debate and scrutiny by the British people’s elected representatives. Yet, in fact, as the Department for International Trade oxymoronically stated this week “we have always been clear parliament will be able to scrutinise Free Trade Agreements following signature rather than at the stage where agreement in principle is reached”. It need hardly be said that this renders scrutiny totally meaningless and represents, in microcosm, the ‘war is peace, freedom is slavery, ignorance is strength’ doublethink of Brexit as a whole.

An incoherent strategy …

What lies behind all this is, as James Kane of the Institute for Government explains, the lack of a coherent post-Brexit trade strategy. To the extent that there is any strategy at all it seems to simply be that ‘signing trade deals’ is a good thing because, as a member of the EU, Britain was not able to do so. Supposedly, the ‘big prize’ now in sight is accession to the Comprehensive and Progressive for Trans-Pacific Partnership (CPTPP). Barely mentioned, if at all, prior to the Referendum, this emerged under Liam Fox as being a key post-Brexit aspiration. It has become all the more so since the prospects of a UK-US trade deal have receded, and to some extent it is seen as a substitute for such a deal (if the US were to revert to the pre-Trump aspiration of also joining what is now CPTPP, which is not clear).

Thus Truss, and the government, are explicitly claiming that the US-Australia deal paves the way for CPTPP membership. This is not, as they sometimes imply, because it is a pre-requisite of membership but because it arguably smooths the way to it since what would have been Australia’s key ask during CPTPP negotiations (tariff-free access for, especially, agricultural products) will already have been satisfied. The interplay between the UK’s CPTPP accession negotiations and those with Australia (and the same, presumably, applies to New Zealand other CPTPP members) is a fascinating issue, as a discussion last week between trade experts Dmitry Grozoubinski, Sam Lowe and Anna Isaacs showed.

The general takeaway from that discussion might be that international trade negotiations comprise a series of complex interrelated trade-offs between multiple parties. For example, the most important practical consequence of what the UK has agreed with Australia about beef tariffs may be what that leads to in terms of what is demanded of it by the US or Brazil. These complexities require a strategy which goes beyond simply assuming that any deal is a good deal and the more deals the better. Or, at least, it does if the aim is maximizing the UK’s economic interest rather than the performative one of generating good headlines for domestic political reasons.

… derived from an incoherent project …

However, that brings us back to the basic incoherence of Brexit as an economic project. Since distance does matter so much, fiddling around making trade deals with remote countries is fairly pointless. Given that Brexit has happened, it’s worth doing, so far as it goes, but it isn’t a benefit, still less a triumph, for Brexit; it’s just some fairly minor damage limitation.

A new ONS trade report is a sharp reminder of this. To try (although it’s not completely possible) to disentangle Brexit and Covid effects they compare the first quarter of 2021 with the first quarter of 2018, and report that trade with the EU decreased by 23.1% (whereas trade with non-EU countries decreased by just 0.8%, suggesting that the Brexit negotiating process and its outcome, rather than the pandemic, was a key driver). The report also shows that, since the end of the transition, post-Brexit trade arrangements have become a far bigger challenge for businesses than the pandemic. The nature of those challenges, especially for small businesses, was spelt out in minute detail in testimony given to the UK Trade and Business Commission yesterday. It is also clear from a new survey showing that 56% of UK businesses think Brexit has had a negative effect on them and just 5% that it has been positive.

Given that, prior to Brexit, the EU-27 accounted for about 50% of UK trade, it’s obvious that to compensate for such massive decreases in trade with the EU, that with non-EU countries would have to be revolutionised and the constraints of distance make that virtually impossible, no matter how many, or even how good, the trade deals the UK strikes. In short, far from the promise that “Brexit will cement our status as a great trading nation” (£), it is causing Britain to become a less great trading nation. No doubt Brexiters and the government will try to spin these latest figures as showing that the UK is ‘re-balancing’ away from its dependence on the EU for trade to being a ‘truly Global Britain’, because of course it (already) means that trade with the EU is less than 50% of UK trade. But it will be nonsense – it just means that the trade pie as a whole has shrunk.

In a related development, and following from the recent failure of the UK and Norway to reach a deal on fishing, it now seems likely that the UK-Norway trade deal will collapse. This was a temporary rollover deal, agreed last December, to be superseded by a permanent and possibly more extensive agreement. But Norwegian politicians are concerned about the impact on their farmers of tariff-free British beef and cheese imports. Note that although Australia’s economy (USD 1.4 trillion, 2019) is much larger than Norway’s (USD 403 billion, 2019), Norway is a more significant trading partner for the UK (£27,436 million, 2019) than is Australia (£16,041 million, 2019).

It’s instructive to see the reactions of leave voters to the news that the Norway deal may fall through. These included rage that this is punishment for leaving the EU (apparently oblivious to the fact that Norway isn’t in the EU) and suggestions that Norway should realise that, being the smaller economy, it needs a deal more than the UK (a strange inversion of what they used to say about the UK-EU negotiations). As always, bellicose victimhood is the guiding theme.

… rooted in an inherent contradiction

The issue of protecting farmers, whether Norwegian or British, goes to the heart of the trade dilemmas Brexit poses for the UK. Whilst Brexiters deride the EU as a ‘protectionist racket’ (an accusation based more on a bad pun than a serious analysis), the protection of agriculture is, globally, almost invariably the most contentious of trade policy issues. In part, as Brexiters should appreciate, that is because of the complex interactions of national identity, soil, and foodstuffs. As regards Brexit, it is also because of the peculiar contradiction of nationalism and globalism. Many who voted leave believed that it would mean not just good news for farmers but the restoration of the heavy industries which have declined in the years since Britain joined the EEC (though of course that wasn’t the cause).

Those votes were immediately taken by the Brexit global free traders as permission to pursue their own agenda – most notably in Fox’s ‘Manchester speech’, made in September 2016 before the hard Brexit of leaving the single market and customs union had even been announced. And, as the deal with Australia suggests, the UK is going to concede tariff-free access to British markets whilst getting almost nothing in return. The gamble Johnson’s government is making is that leave voters will swallow this on politically nationalistic grounds (‘Britain is a global trading nation once more’) and ignore, or be unaware of, its consequences for economic nationalism.

In this gamble, the government may be assisted by one of the strangest features of the way that Brexiters are framing post-Brexit trade deals, and trade more generally. Rather than thinking of these issues in terms of economic rationality or the economics of competitive advantage, they seem to imagine them in terms of ‘cultural affinity’. That imagination (which is what it is, since it involves a hopelessly outdated and sentimental apprehension) is most obvious in the still thriving CANZUK fantasy, but also applies to an Australia-only deal.

The politics of “gormlessness”

It is a gamble that is quite likely to succeed. And everyone knows why, even though it is deemed unsayable in what in 2017 I called the new political correctness of Brexit: the coalition of voters which chose Brexit and which now supports Johnson’s government is largely ignorant of the realities of contemporary trade, business, and international relations. It’s this which unites the Home Counties golf club bore, pontificating about how he ran his import-export business just fine before the EEC, with the coastal town pensioner lamenting that ‘I just want my country back’. Despite the overlap between leading Brexiters and free speech union libertarians that obvious fact – far more than anything proscribed by ‘woke’ activists – is something that cannot be said because to do so is, supposedly, ‘elitist’.

It is this electoral base which chose to endorse what, as Cummings has so eloquently told us, is the “completely crazy” situation of him and Boris Johnson being in positions of power. Almost all attention has focussed, understandably, on what Cummings’ testimony revealed about the dysfunctional government and woefully inadequate leadership during the coronavirus crisis. But it is crucial to remember that at the same time this same government and this same leadership were engaged in the highly complex trade and cooperation negotiations with the EU.

More specifically, it was in this period that Johnson refused to extend the transition, despite the chaos that was going on. It was in this period that he – apparently with the support of both Cummings and Frost – threatened to break international law with the Internal Market Bill. It was throughout this period that he was constantly threatening to end the transition with no trade deal in place and claiming that the UK was fully prepared to cope with the disruption that would have ensued. And it was from the decisions taken in this period that many of the present consequences of Brexit arise.

Not only that but, whilst Cummings may have gone, Johnson and his Brexit government remain in place. And just as, vaccines notwithstanding, the government continues to bodge the management of the pandemic so too does it continue, as Fintan O’Toole put it this week (£), to “strategise gormlessness” in its approach to Brexit, especially in continuing to ascribe its malign effects to others. It remains to be seen whether the Cummings revelations about coronavirus policy dent Johnson’s support within his electoral base, but it’s unlikely that his ‘gormless’ Brexit strategy will do so. After all, it is a strategy designed precisely to appeal to that base.

The polarised Brexit debate keeps missing essential points

Given the intense polarisation of the Brexit debate, it’s perhaps not surprising that each twist and turn of events is seized on by the different sides as confirmation of their positions – but, in the process, crucial points about these events are missed or side-lined.

Hence the news last week that the certification of Britain’s post-Brexit WTO commitments had been challenged by other WTO members was leapt on by some over-enthusiastic remainers, saying this meant that the whole idea of ‘trading on WTO terms’ was dead, or even that Britain’s WTO membership had in some way been vetoed. In the world of social media this rapidly did the rounds as if it were fact.

With understandable irritation, many trade experts pointed out that this was not the case at all: trading on uncertified commitments is perfectly possible, and by no means unknown, whilst negotiations with WTO members continue, possibly over many years. Indeed, Liam Fox put out a statement to that effect.

But much of the commentary, from some of those who were factually right as well as from those who were blatantly wrong, missed the essential point about this story. What mattered was that, despite numerous warnings going back years, Brexiters had presented ‘regaining our seat’ at the WTO as an entirely simple matter.

The big lie: Brexit would be easy

As the Chair of the Commons Select Committee on International Trade, Angus McNeil, pointed out, Liam Fox had in the past assured the committee that the certification of commitments was well in hand, whereas in fact it is going to entail years of bi-lateral negotiations (quite apart from, and on top of, the negotiations with the EU). It’s a foretaste of the way that, far from meaning that with one bound Britain is free, trading on WTO terms means entering a whole new arena of international compromises, alliance-building and back-room deals.

The days of having to negotiate with just 27 other countries as an EU member, from a position of some power, and of acting as part of a bloc of 28 within the WTO may come to be viewed with some nostalgia compared with being one of 160 or so.

So it’s not that what has happened is some crushing blow for Brexit, it is that it’s just one, relatively minor, example of the multiplicity of ways that Brexiters have misrepresented or ignored the complexities of Brexit. As Nick Cohen has put it, the big lie about Brexit was not the £350M a week for the NHS on the side of the bus, but that it would be easy.

Being a third country

Other Brexit stories this week showed a similar propensity to miss the essential in the rush to make partisan points. One especially convoluted example related to the port of Calais. It was falsely reported that France would seek to create chaos – and perhaps even a ‘blockade’ – at the port. Evidence, said Brexiters, of Britain being ‘punished’ (in fact, France is attempting to find ways to streamline the application of the third country controls that a ‘no deal’ Brexit would inevitably entail).

Piling nonsense upon nonsense it was also reported that Britain had a plan to circumvent this supposed punishment, by chartering ships to go to other EU ports in Holland or Belgium – but, of course, such ports would also have to implement third country controls. Then, as it became more widely reported that there were no plans to cause unnecessary delays at Calais, Brexiters pivoted round to dismiss the whole episode as a Project Fear story because nothing would change at Calais – which, in fact, it would if there is no deal because it would, indeed, be necessary to introduce third country controls.

In a more muted way, the same thing could be said of reports (later denied) that a deal on financial services post-Brexit had been done, with sterling rising as a result. This was a puzzling story, anyway, in that any such deal would surely be part of the future terms agreement to be negotiated after Brexit, rather than something to be completed now as part of the Withdrawal Agreement phase.

But, more to the present point, it was unclear why such a deal – reported to be based on ‘regulatory equivalence’ between the UK and EU – would be much of a break through, still less a triumph. Such equivalence would be a fairly standard offering to a third country, inferior in very many respects to existing market access as an EU member, and, in practice, pretty close to the ‘vassalage’ that Brexiters abhor. So the story here – if it was a story, which it probably wasn’t – was neither remarkable nor what it was claimed to be.

In both of these stories the essential point being missed was nothing about punishment or breakthroughs, but the simple, remorseless factual logic of what choosing to be third country – that is to say, choosing Brexit – means. It seems that, even now, both politicians and the public don’t really understand that meaning.

The Leave.EU investigation

Within the swirl of these and other stories, claim and counter-claim are difficult to disentangle and each is saturated with the attempts by various sides within the debate to inscribe them with their preferred narrative. That clearly applies to the most substantive of this week’s developments, the news that Arron Banks (and Liz Bilney) have been referred to the National Crime Agency for the investigation of alleged crimes committed in the funding of the Leave.EU campaign during the referendum.

For some remainers, this opens up the issue of whether leave’s victory in the referendum had been obtained by dishonest means, and that without them the result would have been different. For some leavers, the relevant issue is the money spent by the government in support of remaining in the EU (but not as part of the official campaign).

But both of these responses miss the point. The issue isn’t the outcome of the vote (and, anyway, for all anyone knows the number voting to leave might have been higher without the stridently xenophobic tone of Leave.EU segment of the campaign). The issue isn’t even the fairness of the resources each side had at its disposal. The issue is the specific, procedural one of whether the law was broken.

Of course, there have already been fines levied by the Electoral Commission on Vote Leave (£61K) and on Darren Grimes (£21K) of BeLeave. These are the subject of on-going appeals. How long this will take I am not sure. At all events it would seem likely that the NCA investigation of Banks will take quite some time and, if it were to end in criminal prosecutions, it will surely be many months at the very least before the outcome is known. In these circumstances it seems incredible that the government does not seek to pause the Brexit process (clearly this might not succeed: it would entail the EU-27 unanimously agreeing to extend the Article 50 period).

I don’t mean by that that I expect the government will do this, just that it seems obvious that it should be attempted. Otherwise, what are we really saying about the country’s commitment to having a legal framework within which democratic politics is conducted? If those laws exist for a reason, they must surely be adhered to. It cannot be enough to say that anyone who breaches them can be punished, but with no implications for the vote which was conducted in breach of them. It would be like fining those who mis-sold PPI but not compensating the victims of mis-selling.

Given how strongly people feel about Brexit, the best way to think about the principle here is to forget that it is Brexit which is at stake and imagine it simply in the abstract: what should happen to a vote about anything in such circumstances? From that perspective, first, we need to establish definitively if the law was breached and then, if it was, there seems a compelling argument for a re-run of the vote. (This is quite separate from the argument about a People’s Vote on the final deal: it’s an argument for an exact re-run of the ‘in or out’ question, although undoubtedly the campaigns would be different in the light of what has been learned about Brexit since 2016).

An outlandish proposition?

That such an obvious proposition seems so outlandish, and extremely unlikely to be realised, grows out of the deformed political culture engendered by the referendum and the Brexit debate since. Theresa May bears much responsibility for this – the stubborn, monocular idea that nothing but that vote and delivering her narrow interpretation of it matters – as, of course, do the media. There’s no doubt in my mind that, especially since the Mail’s infamous ‘Enemies of the People’ headline, most politicians have been virtually terrified into abdication of their sense, logic and judgment.

However that may be, insisting now that a pause is necessary might not cause the earthquake that some may expect. The Brexiters would cry betrayal, of course, but they have debased that currency through over-use. Once you call everything a betrayal – as they have from day one – it soon loses its rhetorical power. Especially given that if Brexit is enacted, and however it is enacted, they will call that a betrayal anyway. More narrowly, the post-Dacre Daily Mail is markedly less strident in tone, and less to be feared.

As for those – probably the majority of the population – who don’t compulsively follow Brexit, a pause would probably hardly register amongst the interminable talk of transitions and backstops and backstops to backstops. Indeed there is a sense that many voters, including leave voters, feel that, having voted, they have done their bit and are not that bothered about what happens now or how.

On the other hand, we are often told that a second referendum (i.e. a final deal referendum) would in some way dent people’s faith in democracy. That argument seems to have no logic, but even it were true how much more would such faith be damaged if it emerges that there was large-scale, criminal conduct in the original poll? Once we are past Brexit day it will be too late to do anything. By then, it might seem self-evident that we should have pursued what is currently dismissed as an impossible course of action.

Suppose, even, that compelling evidence emerges of major interference by Russia? Which of our patriotic politicians will then want blithely to tell electors that nothing had been done when the allegations were first referred for criminal investigation because Brexit was the will of the British people? Might ‘I was just doing the will of the people’ end up being as discredited a defence as its closely-related cousin ‘I was just following orders’?