The hard Brexit addiction

Two weeks ago, when I wrote my previous post, Brexit Ultras were cock-a-hoop because they believed that the EU and Ireland were being forced to ‘pay the price’ for having refused to countenance an Irish land border during the Brexit negotiations. As a result, asylum seekers within the UK were now entering Ireland via Northern Ireland so as to escape the possibility of being removed to Rwanda (or supposedly: see the post itself for discussion).

That ebullience has turned to dismay with this week’s ruling by Northern Ireland’s High Court that parts of the Illegal Migration Act do not apply in Northern Ireland (NI) because they breach human rights law and, thereby, breach the Windsor Framework. This is likely to mean that asylum seekers in NI cannot be deported to Rwanda, although the government will appeal against the ruling. Meanwhile, to the ire of Brexiters generally, and NI unionist Brexiters in particular, a potential incentive for asylum seekers to locate in NI, rather than the rest of the UK, has been created. Suddenly we are back to the old familiar lament that "Britain is paying the price for surrender to the EU" (£).

The roots of this lie deeper than the Windsor Framework, extending to both the 1998 Good Friday Agreement (GFA) and the original Northern Ireland Protocol (NIP). Although much of the discussion of these has been to do with trade and economic borders, central to the EU’s position in the Brexit negotiations was that there should be no dilution of the GFA, and included within that was that there be no diminution of the human rights provisions contained within the GFA (matters of no small concern to the US, as well).

The UK government agreed to this, and it is worth stressing that it did so quite willingly for, at the time, apart from perhaps a few on the fringe, Brexiters, and certainly the Brexit government, were adamant that Britain had no intention at all of threatening such rights, or the GFA in any respect, and all talk to the contrary was just more ‘Project Fear’. That the EU nevertheless sought legal commitment to this intention was, as can now be seen, a sensible and necessary precaution.

Not my Brexit (as always)

Thus when former Home Secretary Suella Braverman railed this week that the Windsor Framework has “failed upon its first contact with reality”, and is operating contrary to the “assurances given” to her at the time, that is pure nonsense. In fact, on its first contact with reality (as regards human rights), the Windsor Framework has done exactly what was intended from the outset. It is not clear what ‘assurances’ she was given, or who gave them, but if she believed otherwise then she is incompetent. However, this isn’t really the point she’s making. What she actually is trying to do is to disavow the fact that she was a member of the government which agreed the Windsor Framework (and, further back, one of the Tory MPs who voted unanimously for the NIP).

In this, Braverman is following a now familiar pattern as regards the Brexit arrangements for NI (and Brexit more generally). Over and over again Brexiter MPs who voted for them claim that they were misled, for example into believing the NIP to be temporary, or into believing that there would be no sea border, and, now, over the human rights provisions it entailed. There may be some truth in these claims to the extent that Boris Johnson repeatedly misrepresented the Protocol. However, that is no excuse for such MPs not to have grasped this central part of the Brexit Withdrawal Agreement, the more so given that one of their leading figures, Iain Duncan Smith, insisted that no more time need be spent debating it. The same goes for the Windsor Framework, and especially for a government minister like Braverman.

But all of this is a smokescreen. The reality is that, from the outset, Brexiters didn’t understand or care what their project meant for Northern Ireland and many of them still do not, or affect not to believe it. Only when, as individuals, they are in government, are they forced to confront it, as they are other Brexit realities. That happened to Theresa May and, for all his huffing and puffing, to Boris Johnson when he was Prime Minister, though he left a political crisis over the NIP the resolution of which, via the Windsor Framework, was one of Rishi Sunak’s few achievements, and one of the few times he faced down the Brexit Ultras. The same thing happened to Braverman, whilst she was in office, including when, in her second stint as Home Secretary she voted for the Windsor Framework.

But some Tory Brexiters either never held government positions or, as happened with numerous Brexit Secretaries and Brexit Ministers, resigned those positions rather than accept the realities of Brexit. They could then join the Farageist extra-parliamentary chorus of how Brexit has been betrayed and could have been done ‘properly’ if only the government had ‘stood up to’ the EU. So Braverman’s reference to ‘assurances’ that have proven false is simply her alibi for what the government she was part of did, and a brandishing of her credentials to join the ranks of the betrayed.

The Tory Brexit failure

All this in turn is part of the wider picture of what Brexit has done to the Tory Party. For the most basic and most brutal truth is that what has been their flagship policy since 2016, and defining purpose since 2017, has manifestly failed. That failure was well-captured by Rafael Behr’s pithy formulation in his Guardian column this week: “Brexit was a huge bet against the idea that geography mattered to economic and security policy in the 21st century. Geography won.” Week-in and week-out the evidence of that grows, with the latest examples including its role in the delays to the opening of the Co-Op Live Arena, its role in medicine shortages, and the border delays for perishable goods imports. Conversely, the realities of geography have continued quietly to play out, for example in shadowing new EU regulations (such as those relating to plastic bottle caps) and in re-joining the European High Performance Computing Joint Undertaking. 

But we need hardly rehearse once again all the economic and geo-political damage and pointlessness of Brexit, still less to trudge through all the wearisome attempts by Brexit ideologues to disprove it, or to grab hold of some tiny shred, usually misrepresented anyway, of supposed justification. The clinching evidence of its failure is that if Brexit had been anything even remotely like the success that was promised then, as we approach the first election since leaving the EU, the Tories would undoubtedly be trumpeting that success, and making their record of delivering it the central plank of their electoral platform. Instead, they barely mention Brexit any more, preferring to grub around with endless ‘re-sets’, gimmicks about banning civil service ‘woke lanyards’, and, of course, the more serious, but still gimmicky, Rwanda policy.

The nature of those gimmicks reflects how Brexit has been a failure in a different way; a failure not just for the country but for the Tory Party itself. For whilst the causes of Brexit are multiple, there can be no doubt that a significant one was the attempt by David Cameron and others to destroy the electoral threat of the UKIP ‘revolt on the right’. In that respect, its failure has been not just abject but total. Not only has that threat regathered (or perhaps we should say re-formed), as Reform UK, requiring the Tories to continue to seek ways to negate it, but the Tory Party itself has been substantially ‘UKIPified’. In particular, a substantial part of the right, both within and outside the party, regards Brexit as a foundational belief, but believes equally strongly that it has been betrayed.

The silence of the Tory leadership

So the Tory leadership, meaning not just Sunak but the party as a governing party, is now in an impossible situation (of its own making, so weep no tears). It can’t claim Brexit to be a success, because those who do not have a foundational belief in its rightness can clearly see it has failed, whilst those for whom its rightness is a foundational belief also believe that it has been betrayed. But it can’t denounce Brexit as a failure or a betrayal, since it is the Brexit the Tory leadership actually delivered.

This situation grows directly out of the wider political climate which Brexiters, meaning not just politicians but commentators and activists, have created since 2016. They showed no interest in trying to persuade their opponents that, despite their doubts, it could be successfully delivered – remainers were just told to ‘suck it up’, which they declined to do. Yet Brexiters themselves have been the most adamant that Brexit hasn’t been successfully delivered.

So the Tory leadership now has nowhere to stand: it can neither boast of Brexit nor disown it. It has to insist both that Brexit was the right thing to do, which only a minority of voters now believe, and that it was done in the right way, something which only a minority of that minority now believe, which isn’t electorally viable. Hence the near-silence (matched only, though for quite different reasons, by the Labour opposition).

The noisy minority

By contrast, Brexiters who insist Brexit was the right thing, but was not done in the right way, have a much easier time of it, so long as they can avoid the taint of responsibility for how it was done. This is the seam of grievance that is being assiduously and very loudly mined by Reform and by many Tories. For them, things like the Belfast court ruling offer the opportunity to keep punching on the bruise that the Tory government bungled Brexit, and did so through lack of true belief in real Conservatism.

Moreover, they can propound a Brexit 2.0 agenda of leaving the ECHR, as well as even more draconian anti-immigration and anti-asylum policies, far more easily than can the Tory leadership. For, in government, the practical consequences of this agenda would be all too clear. Sunak can make noises about the ECHR, but any government actually derogating from it would encounter massive problems, not least in relation to the GFA and the NIP. Outside government, these problems can be denied, or discounted simply by proposing to violate those agreements as well.

On immigration generally, whilst the government is willing to countenance considerable damage to universities and to businesses with its recent clampdowns, it is less clear that it would be able to weather the storm caused by the kinds of restrictions its even more right-wing critics want. It is one thing for voters to demand much lower immigration, quite another if they are forced to face the reality of the consequences. Even surveys showing majority support for reducing immigration also show majority support for making immigration easier for many key occupations, especially the NHS and social care. Certainly any government actually implementing a very low immigration policy of the sort advocated by Reform UK would immediately run into huge practical difficulties and, crucially, would still be denounced by those outside government as not going far enough.

For practical difficulties do not matter outside government, and, as with Brexit itself, they can be dismissed as ‘Project Fear’, generated by a self-interested globalist elite. That is why, in these dog days of Tory government, those within the party who aspire to its future leadership, perhaps including Braverman or Robert Jenrick, can develop ever-more impractical ideas, just as Reform can.

The same goes for those, like Liz Truss, canvassing for the PopCons, or for Jacob Rees-Mogg, who this week proposed an electoral pact (£), not far short of an effective merger, between the Conservatives and Reform, albeit that Farage immediately rejected that, at least for now. Meanwhile there is talk of self-styled ‘media personality’ Matt Goodwin and self-proclaimed ‘disruptor’ Dominic Cummings each launching new, populist, anti-immigration parties of their own. If so, there will be multiple parties fishing in the same murky, but electorally fairly limited, water, leaving all of them frustrated in their pursuit of power, not least because, in the process, they will abandon many of the centre-right voters upon whom the the Tories used to rely.

Chasing the dragon

Brexit and its aftermath are the key to all of these developments, and, although it is impossible to know how they will play out, there is a good chance that they will yield a long-term fracturing of the political right. That’s something which used to be thought more likely on the left. To an extent, it is what happened when the SDP split from Labour in the 1980s, and it might have been expected in the form of an ‘Old Labour’ split from ‘New Labour’ during the Blair years, or a Blairite split from Corbyn’s Labour, or the Corbynite left setting up a new party in opposition to Starmer. Arguably, the effect, and ultimate fate, of the SDP may have inoculated the Labour Party against such subsequent splits. But the post-Brexit right, high on dreams of purity and addicted to the dramas of betrayal and purges has, perhaps appropriately, not had the benefit of the vaccine.

It's against this background that many current events should be understood, including the perhaps not very important or enduring one of the Belfast High Court ruling. That ruling is, at one level, a reminder of the mess that Brexit has created as regards Northern Ireland and of the impracticality of separating the UK from all of the international obligations that Brexiter ideas of sovereignty entail. At another level, it is one more piece of ammunition for the Brexiters to propose making an even greater mess in Northern Ireland, since their ultimate aim is to renege on the NIP and the Windsor Framework (and in some cases probably the GFA, as well), and to redouble on their fantasy of sovereignty by reneging on the ECHR (£). The more general application of that logic is, perhaps, the ultimate trap that Brexit has created: anything and everything that shows the folly of Brexit is, for Brexiters, the justification to commit even worse follies.

If that seems like political madness given the electoral system, and public opinion, it is sustained by the memory of the high of 2016 when, very briefly, the Brexiters could lay claim to embodying the ‘will of the people’ and could believe that they really were the silent majority, not the noisy minority. It was a heady moment. The hit proved short-lived and ultimately disappointing, but, for Britain’s political right, it proved to be a gateway drug, and there is not much they will not do in search of another fix.

Brexit: a mug's eyeful

When I was a teenager, after much saving up from my ‘Saturday job’ money, I bought my first ever stereo device, a portable radio cassette player (younger readers may need to consult a dictionary). Not only did it have – gulp! – two speakers, but a whole array of controls, lights, and little graphs printed on it, as if precisely measuring all sorts of important sound variables.

It was my pride and joy until I showed it to my brother-in-law, a marketing manager, who took one look at it, laughed, and said “that’s what we call a mug’s eyeful”. I had never heard the expression, but he explained it meant something which was made to look impressive with all sorts of superficial features but, not only did they have no real function, they disguised the underlying shoddiness of the product itself. And, indeed, he was right. The only control that served any purpose was the volume knob, and that soon broke, although not as soon as the cassette player began to mangle tapes, the aerial snapped, and the carrying handle fell off.

To anyone with any understanding of what it meant, it was obvious from the outset that Brexit was a mug’s eyeful. All the things which it was promised would follow from ‘taking back control’ were as illusory as the supposedly sophisticated controls on my pitiful boombox. Meanwhile, all the technical-sounding explanations, from the UK’s trade deficit guaranteeing a great deal to semi-digested factoids about, for example, GATT Article XXIV, that were littered throughout the Brexit prospectus were as meaningless and misleading as the pathetic fake graphs on its stupid plastic case.

Damaged goods

It is now four years since the UK actually left the EU, and, despite the government producing a predictably misleading though highly glossy anniversary brochure extolling ‘Britain’s Brexit success’, it is obvious to all but the most dull-witted or obtuse of Brexiters that it has been a failure. Nigel Farage said as much months ago. And just this week, Ben Habib – the creepy Brexit Party ex-MEP now standing for Reform in the by-election caused by creepy Brexiter Tory Peter Bone’s scandal-ridden demise – tweeted that those who voted for Brexit had “got nothing”. But of course, since they were the ones who sold this mug’s eyeful to a gullible public, they ascribe that failure to it not having been done properly. Thus Daniel Hannan, rather than apologise for his magniloquent visions of a post-Brexit utopia, discussed in last week’s post, can now only offer a threnody (£) for what might have been, but for “the Blob”, illustrated by a peculiar, and somewhat inaccurate, discussion of tariffs on Moroccan tomatoes.

And where once Brexiters petitioned for January 31 to be celebrated annually as ‘National Independence Day’, the best Roger Bootle, a one-time member of the ‘Economists for Brexit’ group, could come up with (£) was that it has not “brought the disaster that some other economists envisaged”. Underwhelming as that claim is, it was only achieved by the now-standard tricks of referring to parts of one of the pre-Brexit Treasury forecasts, whilst also dismissing as “elaborate guesswork” the various post-Brexit estimates of its costs.

Perhaps the nearest thing to an admission of their folly came in an article on the Institute of Economic Affairs (IEA) website, suggesting that “in retrospect, the libertarian argument supporting Brexit appears to have been fundamentally flawed in its understanding of the European Union’s nature and functions”. It’s the closest I’ve seen to a recognition that it’s not just that Brexit hasn’t led to the UK becoming ‘Singapore-on-Thames’, but that it was never likely to – something rarely acknowledged by either the libertarian Brexiters who wanted that outcome or, for that matter, by those anti-Brexiters who feared it was ‘the real agenda’ behind Brexit. It is also an interesting piece in revealing what to others is obvious, given their anti-state ideology, which is that libertarians never had any interest in the UK state ‘regaining sovereignty’, even though many of them opportunistically parroted that line.

Meanwhile, back in the real world, evidence of the damage of Brexit mounts up at an alarming, and possibly accelerating, rate. Recent examples are chronicled by Anthony Robinson for Yorkshire Bylines and Edwin Hayward in the New European, and I won’t try to cover them all here. But it is fitting that, around the time of this anniversary, the three biggest of them relate to very central parts of Brexit.

Trade in British and Canadian goods

The first is the stalling of the UK-Canada trade talks. This is important both in itself and for wider, partly symbolic, reasons. One of the things which I, and many other commentators, got wrong in the early days of the Brexit process was to think that it would prove very difficult, and perhaps impossible, for the UK to ‘roll over’ the Free Trade Agreements (FTAs) made between the EU and various third countries, and especially do so on the same terms, and by the end of the transition period. In fact, this was largely achieved, usually maintaining similar terms and occasionally, as in the case of Japan, slightly improving them (although to little, if any, practical benefit according to the UK Trade Policy Observatory).

As regards Canada, a continuity agreement was reached in November 2020, but certain parts of it contained temporary provisions, the permanence of which formed part of negotiations for a new trade agreement to replace the continuity agreement, and it is these negotiations which have now broken down. This does not put an end to the continuity agreement in its entirety, although it was originally intended only to be an interim agreement, but it does mean that those parts which were temporary will lapse or have done so. The most high-profile example of the temporary provisions related to the quota for tariff-free exports of British cheese to Canada, which expired at the end of 2023, and to rules of origin for tariff application in the automotive sector, as well as, in rather more complicated ways, trade in beef and pork.

Along the lines that I suggested in my previous post, it is necessary to be careful not to treat this simply as a Brexit bad news story. After all, the main criticism of the new trade deals the UK has done with Australia and New Zealand was that, in its desire to demonstrate its ‘post-Brexit freedom’ the government had simply accepted any terms they were offered, regardless of their effects on, especially, British farmers. So this breakdown of talks with Canada, which was initiated by the UK, can be read as a sign of a less dogma-driven approach and, certainly, has been welcomed as the “right decision” by the National Farmers Union mainly because the alternative would have been to lower UK food standards, especially as regards hormones in beef, in exchange for tariff-free access for cheese.

Nevertheless, as the British Chambers of Commerce emphasised, it is a blow for British cheese exporters and also for car-makers, and a blow which is, specifically, a cost of Brexit since it was the continuity agreement which made temporary what, under the EU-Canada agreement, would have been permanent had Britain stayed in the EU. This may only be a small blow to the Brexiter claim that they would be able to rollover trade deals, but it is a much bigger blow to their proposition that, outside the EU, the UK could negotiate deals which fitted its specific interests rather than for those interests to be subordinated to, and diluted by, those of the EU and its members.

This matters, because the central plank of the Brexiters’ trade case is the freedom to have an independent trade policy, and it’s pretty much the only argument they have for not being in a customs union with the EU. The benefits of that freedom are never remotely going to outweigh the costs of leaving the EU single market – and it is a mystery why so many ‘free-trader’ Brexiters, like Bootle, continue to insist that those costs are very low, whilst also insisting that the benefits of trade deals could be high – but it’s not even clear that they outweigh the costs of having left the customs union.

It also matters in particular ways because the country in question is, specifically, Canada. On the one hand, that is significant symbolically given the idea held by ‘Ladybird Brexiters’ like Hannan, that Commonwealth countries and, especially, the ‘Dominions’, would fall over themselves to ‘renew old friendships’. That, and the associated ‘CANZUK’ fantasy, was based on a mixture of imperial nostalgia, ignorance about the modern nature of those countries, and quite breath-taking naivety about the tough realities of trade negotiations. On the other hand, it is significant practically, at least potentially, because Canada is a member of CPTPP and has yet to ratify Britain’s membership, something the Brexiters have made the centrepiece of their claims for the benefits of Brexit. As things stand, the Canadian government has said that this latest development will not affect CPTPP accession, but it is quite possible that it will revive opposition from Canadian farming lobbies to ratification.

Import controls on EU goods

The second big story is the next stage of the introduction of import controls on certain goods coming from the EU. It isn’t quite accurate to say, as some media reports do, that it is the beginning of such controls, because controls on some high-risk imports did start when the transition period ended. However, these latest controls on medium-risk goods, mainly cut flowers, fish, meat and dairy products, have been much delayed.

I discussed last week, as I have done in the past, what the likely consequences of their introduction will be, but one thing left hanging was what last week’s announcement about fruit and vegetables meant. My understanding now is that it moved most such produce into the medium-risk category, thus including it in the new paperwork requirements that started this week and the new inspection regime which will come into force at the end of April, but temporarily kept it as low-risk until the end of October, at which point fruit and vegetables, too, will require paperwork and be liable for inspection.

All of this will necessarily add to the costs of trade, and comes against a background in which already, according to a survey reported in the Financial Times this week (£), three-quarters of British firms who trade with the EU say that their sales and profitability have declined as a result of Brexit. The new controls will add to this burden, and, for consumers, adversely impact prices and choice, and probably shelf-life.

I also discussed last week why it is that import controls are necessary, despite some Brexiters still being unable to grasp this and, right on cue, up popped Jacob Rees-Mogg to squeak that introducing them is “totally stupid”, and that he had opposed doing so when Brexit Opportunities Minister (a post, be it noted, that no longer exists, and small wonder since it was the definition of a sinecure). That ignorance or dishonesty goes to the heart of why Britain was not ready to introduce the controls on time, for, astonishingly, it was not officially admitted by any government minister  –  Michael Gove – that they were inevitable until February 2020, after Britain had actually left the EU.

That in turn points to a deeper dishonesty. Anyone who understood the issue knew this from the moment that Theresa May explicitly confirmed that Brexit meant hard Brexit, in January 2017, and the government itself began to prepare for it from at least 2018. The reticence about telling the public was surely because, whilst there was even the thinnest chance of Brexit being abandoned, the government didn’t want to be open about what it meant.

Great Britain and Northern Ireland Internal Market goods

And finally, Northern Ireland, the hardy perennial of Brexit mess and dishonesty. That the Northern Ireland Assembly will resume sitting because the DUP have done a deal with the government is unalloyed good news. What that deal consists of and how it will play out in both practical and political terms is much less easy to assess, and no doubt I will write more about it in the future. Its detail was released by the government as a Command Paper entitled 'Safeguarding the Union' on Wednesday, parts of which need to be read in conjunction with a draft decision of the Joint Committee overseeing the Withdrawal Agreement (JCWA), released rather more quietly the evening before.

These documents are quite long and, in places, highly technical but my initial understanding* is that the changes are substantive in offering easements to border processes, especially on movements from Great Britain (GB) to Northern Ireland (NI). In very brief, the most important of these is to designate most goods (though not including most of those designated for further processing in Northern Ireland) moving between GB and NI as ‘low risk’, therefore exempting them from customs paperwork and removing routine checks if they come from companies signed up to the ‘Trusted Trader’ register and if they are destined never to leave NI.

Such goods will now be able to use the ‘green lane’ which, symbolically, but in a context where symbols greatly matter, is going to be renamed the UK Internal Market line. There is also some relaxation of processes and checks relating to products, including agrifood products, imported from the rest of the world so long as they are not at risk of entering the EU, and this also means that Northern Ireland will have the benefits (such as they are) of the UK’s independent trade policy.

However, the fundamental architecture of the Northern Ireland Protocol and the Windsor Framework remains unchanged. This is important, since it explains why there is very little indication, at least so far, that the EU (or, especially important, Ireland) are or will be unhappy with what has been agreed, though there was just a hint yesterday that that could change. Indeed, much of the Command Paper seems to be a restatement of the ways in which the Windsor Framework acts to make the Protocol more workable with, in some cases, proposals to ‘enshrine’ these in UK law by amending various pieces of legislation including the EU (Withdrawal) Act and the Internal Market Act.

Even so, aspects of the changes mentioned in the Command Paper and fleshed out by the JCWA document do amount to legal changes in the Windsor Framework, at least according to Sir Jonathan Jones (the former head of the Government Legal Service who resigned over the potentially illegal clauses of the Internal Market Bill) who surely speaks with authority. Actually, that in itself is an indication that what is under way is occurring within the Windsor Framework and in conjunction with the EU, and the Command Paper is explicit that some of its proposals will need further JCWA agreement. In other words, we do not seem to be back to the days of the Internal Market Bill, or for that matter the Northern Ireland Protocol Bill, where there had been proposals for the UK unilaterally to change the terms of what had been agreed with the EU.

At the same time, that de facto legal changes have been made to the Windsor Framework could be regarded as a victory for the DUP, who say it confounds critics who had said this was impossible, but such changes do not affect the fundamental fact of there still being an Irish Sea border, claims by DUP leader Sir Jeffrey Donaldson notwithstanding. Nor do they change the fact of Northern Ireland still being in the EU single market for goods. This means that there continues to be some opposition to the deal from within the DUP, and even more from other unionist parties, most notably Traditional Unionist Voice. Perhaps all these changes amount to is a ladder for the DUP to climb down, knowing full well how limited they are. Or perhaps the DUP have been gulled into believing them to be more significant than they are. Nor are these two possibilities mutually exclusive, since it may suit the DUP to accept them now but, in the future, to declare that they were deceived. In this and others senses, the long-run impact on Northern Irish politics remains unclear.

Regulation of goods

There is also a UK political dimension, since these changes entail the use of Statutory Instruments and some legislation, the crucial pieces of which were passed yesterday. This haste was presumably in order to get a swift resumption of the NI Assembly, but that may, as has happened before in the Brexit process, lead to very technical things having been agreed without anyone quite knowing what they mean in practice. There is a particular question, which is already exercising Brexiters (£), about whether the implication of it all may be to make future UK divergence from EU rules harder. This is because part of the deal means that parliament will have to be told if any future UK legislation has “significant adverse implications for Northern Ireland's place in the UK internal market”, as regulatory divergence related to goods surely would.

The government has denied that this prevents future divergence, and to the letter of the law I suppose that is true, since such legislation could still be passed regardless of what it means for Northern Ireland’s place in the UK internal market. But were that to happen, it would (or could) immediately re-open the issue of what checks are needed for the Sea border. Equally, it’s clear that the DUP believe the deal ensures that there will be no dynamic alignment of EU law and Northern Ireland law, yet it is hard to see how that can be true (as regards goods) under the basic terms of the Protocol, so again it suggests that what it will mean in practice is the UK as a whole staying aligned with such law so that unionists can depict the situation as simply one of Northern Ireland being the same as the rest of the UK whilst, effectively, still following EU law.

To add to the confusion, what I have not seen discussed anywhere yet is what all this means for any passive divergence from EU regulations. That, by definition, would happen without UK legislation being passed, yet it, too, could have implications for the need for border checks. Might we end up with de facto ‘dynamic alignment’, at least for goods, through the back door and, if so, why not gain the greater advantages of doing so by de jure dynamic alignment? Might we even end up with something not so far from the ‘common rule book’ for goods and agrifood envisaged by Theresa May’s ill-fated Chequers Proposal?

In all of this, it bears saying that, apart from those technical changes to the Windsor Framework being agreed with the EU through the JCWA, the legal changes envisaged are solely changes to UK law. Some of these, as noted above, simply make explicit what is already in the Windsor Framework. This is utterly pointless, since the UK is already bound to these by its agreement with the EU.

Pointless in a different way (in that neither is an existing treaty obligation) are the commitments to legislate for the government’s existing policy of making ‘Not For Sale in the EU’ labelling mandatory across the UK, and to ‘enshrine’ in an Act of Parliament that no government will be permitted to agree a new Protocol with an adverse effect on Northern Ireland’s position in the UK Internal Market. But such legislation is effectively meaningless, given that no parliament can bind its successor. So, as with much – but not quite all – of this ‘Safeguarding the Union’ deal announcement, there is a great deal of fluff and rather less to it than meets the eye.

If that gets the Assembly up-and-running again, then all to the good. But there is much in it which remains unclear, practically and politically. Four years since leaving the EU, and over seven years since deciding to do so, the question of what Brexit means for Northern Ireland can still not be said to have a settled answer.

Utterly defective goods

It’s said you can fool all of the people some of the time, and some of the people all of the time. Brexit never fooled all of the people, and a poll this week found that only 13% of people think that Brexit has been more of a success than a failure. Even so, other polling shows that 33% still think Brexit was the right thing to do, the discrepancy presumably being explained by yet another recent poll showing that 26% think it was the right thing to do but that the government has handled it badly.

Given that a hardcore will no doubt always support Brexit, it’s that latter group, along with the many ‘don’t knows’ in all of these surveys, who are probably the key to where public opinion eventually settles. If and when these groups swing to the view that Brexit has not only failed but was never going to succeed the demand for a refund will grow, as will the demand for those who sold the public this mug’s eyeful to be held to account.

 

*For more detailed and, no doubt, better-informed analysis (though I don’t think it is incompatible with mine), see Professor Colin Murray’s post on the EU Law Analysis Blog.

Update (02/02/2024 at 10.40): One aspect of the Command Paper/ JCWA changes I was aware of, but didn’t discuss as I didn’t understand it, relates to Tariff-Rate Quotas (TRQs). This has since been explained by trade expert Sam Lowe in his latest Most Favoured Nation Substack. Interestingly, this somewhat contradicts what I said (and it was not my invention, it is what the NI Secretary Chris Heaton-Harris said in the House of Commons) said about how the deal would enable NI to benefit from the UK’s independent trade policy. At least as regards TRQs, this seems not be true (see Lowe’s comments about the UK-Australia trade deal). Perhaps this is an example of what I warned of about how all this is being passed very quickly with MPs and others possibly not understanding all of the implications?

Update (02/02/24 at 15.15): An update my previous update! Sam Lowe has now amended his Substack post to explain that NI will be able to use the new TRQs in FTAs such as UK-Australia. A reminder of just how complex some of this stuff is, even to the experts!

Another Brexit year begins

In terms of the big picture of Brexit, nothing has really changed since the post I wrote just before Christmas. The gist of it was that until political leaders face the truth about Brexit nothing will be done to address its failings, which also carries the danger of a revival for Farage or a similar populist politician.

It’s an analysis which was echoed by John Harris of the Guardian this week, who went on to predict that this year “the gap between Brexit’s delusions and our everyday reality will become increasingly inescapable” and that both main parties will face the same problem of the impossibility of thinking “coherently about the UK’s long-term prospects when any truthful discussion of the present is off limits”.

As to what those prospects are, the Financial Times annual survey (£) of leading economists finds a clear majority expecting the UK to face the worst and longest recession of any G7 country. Brexit figures strongly amongst the reasons, and is certainly the one most obviously unique to the UK. The report on the survey quotes Professor Diane Coyle of Cambridge University as saying “the UK is in a structural hole, not a cyclical recession” and will continue to suffer “unless some sanity returns to our trade relations with Europe [and] until we have a government with an adequately long-term strategy it can get through parliament”.

Needless to say, the Brexiter diehards have a different analysis. The ineffably foolish David Frost (£) is bemused that “somehow, we have allowed our exit from the EU to become defined as the problem not part of the solution to our problems”, as if it had happened by some strange chance, rather than the obvious failure of the Brexit project.

He shows a similar lack of insight in suggesting that part of the problem is “that we have a Remainer Chancellor: other countries’ financial establishments and investors take their cue about us from the views of the Chancellor and Treasury, and if they are not vigorous advocates of Brexit that makes a huge difference to international perceptions of us”.

He is apparently oblivious to the fact that the biggest damage to international investors’ perceptions of the UK occurred when Kwasi Kwarteng, a ‘vigorous advocate of Brexit’, delivered his ‘true Brexit’ mini-budget, which found much favour with Frost himself. Indeed the mini-budget wasn’t an anomaly but inseparable from the nature of the kind of post-Brexit Conservatism Frost champions, as the historian Robert Saunders argued in an excellent essay this week.

A post-Brexit consensus?

It's worth noting Frost’s description of Jeremy Hunt as a “Remainer Chancellor". In a similar way, Jacob Rees-Mogg this week (£) railed against “unelected remainers in the House of Lords” (as unelected as Frost, one might comment) for their anticipated opposition to the Retained EU Law Bill. I’ll come back to that Bill shortly, but this constant sneering at remainers explains the central problem with a proposal put forward recently by the New Statesman’s Martin Fletcher.

His suggestion is that leading ‘remainers’ should unequivocally drop as unrealistic all calls for a referendum on re-joining for at least a generation, and acknowledge at least the possibility of some benefits of Brexit. Then, Rishi Sunak could offer a broad-based, cross-party commission to explore “practical ways to make Brexit work better by, for example, lowering barriers to trade with the EU, making it easier for British professionals to work on the continent, and facilitating British participation in European science and research programmes”.

Fletcher has been a consistently interesting and acute writer about Brexit, and deserves a more serious and sympathetic hearing than he received, at least on social media, perhaps because of the somewhat provocative title of the piece, “it’s time for remainers to try and make Brexit work”, which of course he is unlikely to have written himself. He is also, in my opinion, right that re-joining the EU is not on the agenda for a generation, an argument also cogently made by David Allen Green this week. It’s of note that although a recent opinion poll found 65% support for another referendum, just 22% supported an immediate vote. Moreover, as I argued in last week’s post, the result of such a referendum can’t be assumed and, in another recent post, re-joining isn’t really viable from an EU perspective until it is clear that a future Tory government wouldn’t seek to reverse it again.

However, Fletcher is unrealistic to think that remainers acknowledging that re-joining isn’t in prospect will open the door to the kind of consensual post-Brexit planning he advocates. That’s clear just from the way Frost and Rees-Mogg disparage erstwhile remainers like Hunt, who has certainly fully accepted Brexit although, like Sunak, has committed the sin of admitting it has some costs. For them, such a consensus could only mean ‘betraying’ Brexit, and even the limited realism of acknowledging any costs is heresy. Nor are they remotely interested in “practical ways to make Brexit work better” which, to them, just means diluting or softening Brexit. And, in a sense, they are right, because the harder Brexit is, the less practical it is, and the more practical it is, the softer it becomes.

This problem is not solved but exacerbated if, as spelt out in Fletcher’s follow-up article, “more extreme figures” on both sides are excluded from the hypothetical Commission. For it is hard to think of a single high-profile Brexiter who would accept the kind of ‘practical solutions’ Fletcher envisages it coming up with. That is precisely why they haven’t been adopted. So the idea that simply excluding them in order to create a rapprochement based on practicalities is, itself, impractical. It certainly wouldn’t put an end to the bitter divisions of Brexit, which is Fletcher’s main, and admirable, aim. It would simply provide a new focus for them.

The idea that remainers should ‘get behind’ or at least ‘move on from’ Brexit isn’t a new one, of course. It has been around in various forms since the referendum. So, too, has the implication that remainer intransigence has precluded a ‘consensual’ approach to Brexit. Yet the reasons why such ideas are both unrealistic and inaccurate have scarcely changed since I first discussed them in October 2016 (that post also accurately predicted that the bitterness of divisions would endure and deepen as Brexit became a reality).

Amongst the reasons discussed in it was the fact that, by then, Theresa May’s conduct had squandered any possibility of a ‘big tent’ process of the sort Fletcher advocates. But that possibility was very small anyway, because of the nature of the Tory Party and of the Brexit Ultras within and outside it. That is even more the case now, and explains why Fletcher’s proposals can already be seen to be unworkable. For what he describes as the path remainers should follow is effectively exactly the position which the Labour Party has adopted (and even the LibDems are not calling for re-joining). Yet that hasn’t prompted Sunak to respond in the way Fletcher suggests it would enable, and it is inconceivable that it will. The reason is obvious. Sunak, or any other Tory leader, would be ripped apart by his own party were he to try it.

The Retained EU Law Bill: pragmatism or ideology?

Many of the difficulties with Fletcher’s proposals are illustrated by the current row within the Tory Party about the Retained EU Law Bill. If passed in its current form, originally devised by Rees-Mogg, it would mean that all such law would automatically lapse by, in the main, the end of 2023, unless explicitly retained in UK law after review, or made subject to a longer sunsetting period. There are several issues at stake here.

Administrative chaos? Very possibly

One, which is purely practical, is the huge administrative burden of reviewing the entirety of retained EU law within this timeframe, and the potential problem of mistakes or oversights leading to massive legal confusion for individuals, businesses, and other bodies.

But such practical objections are derided by Brexiters as ‘remainer’ foot-dragging and anti-Brexit resistance, providing a ready illustration of why the Fletcher proposal is a non-starter. Their insistence that the Bill must be pursued replicates exactly the problem that has dogged Brexit from the outset, with Brexiters repeatedly positioning anything that challenges the ‘simplism’ of their beliefs as sabotage, which explains, in particular, the bitter deterioration of relations between Brexiter politicians and civil servants since 2016.

Indeed Rees-Mogg again (£) provides an example in implicitly referring to civil servants raising the practical problems of the Bill as “whingeing from life’s eternal hand-wringers”. Like Frost, he has learned nothing from the mini-budget which provided a paradigmatic example of the disaster that can follow the side-lining of the civil service, and expertise in general, in favour of Brexiter ‘true belief’.

That same mind-set informs the Brexiters’ Jacobin-like contempt for constitutional convention, most evident in the 2019 Prorogation. That is present in a particularly pernicious aspect of the Bill, namely the extent to which it gives Ministers, rather than Parliament, the power to decide which regulations might be scrapped. That this is pernicious should be as clear to leavers as to remainers, since it continues the Executive power-grab that has been a feature of Brexit, despite its promise to ‘restore parliamentary sovereignty’ (this also, by the way, makes Keir Starmer’s bid to pinch the ‘taking back control’ slogan a smart one).

A key test of Sunak’s much-vaunted pragmatism, and of his political control over the Brexit Ultras in his party, will be whether he proceeds with the Bill and, if so, with its currently planned timeframe. It will also be a test of whether he will continue the ‘Brexity’ disdain for the conventions of parliamentary democracy. There are contradictory rumours about what he intends, but at least he has now ruled out another stupid and impractical plan (£), also devised by Rees-Mogg, to set departmental ‘red tape budgets’.

A bonfire of rights and regulations? Probably not

The other main aspect of the Retained EU Law Bill is not so much practical as ideological. In principle, it could mean whole swathes of EU-derived employment rights, most notably working time regulations including the 48-hour working week, minimum rest periods, and annual paid leave entitlements, being scrapped. The same is possible for environmental standards, including regulation of pollution and of food standards.

However, despite some of the wilder rumours circulating on social media, the passage of the Bill doesn’t in itself mean these diminishments of regulatory protections would happen, because the government could decide to retain the existing regulations, or to extend the sunsetting period before they lapsed. But will that happen? Clearly there are many Brexiters who want these rights to end, and see that as a major benefit of Brexit. It would deliver the ‘Britannia Unchained’ Brexit they yearn for. Equally, there are many who are opposed to Brexit who are convinced that ‘this was what Brexit was about all along’.

But, as always, it is more complicated than that because of the central flaw in Brexit, namely its many different meanings. That flaw has been inherited by the present government because it came to power on a similarly diverse coalition of Brexit-supporting voters. Many of these, and the MPs who represent them, will not support the wholesale scrapping of so many employment and environmental protections.

That situation is compounded by the multiple crises that the government now faces, and its deep unpopularity. It can hardly afford to preside over the potential administrative chaos the Bill will create, and it could hardly give an easier gift to the Labour opposition than to propose to shred workers’ rights and environmental standards.

There’s no cause for complacency, of course, and this is in every respect an indefensible and dangerous piece of legislation. But on the face of it Sunak would be crazy to attempt to use it in this way even if his party, not just in the form of the Red Wall MPs but many of those from the rural heartlands, as well as the House of Lords, would countenance it.

Even Rees-Mogg (£), whilst urging the quick passage of the Bill, does so on the basis that this would neuter the critique that the government has a “secret agenda” to remove these rights and standards in the run-up to the 2024 election. Not that it would entirely do so, since the suspicion would rightly remain that, were the Tories to win again, they would then use ministerial powers to do exactly that. So Rees-Mogg is probably being disingenuous as usual, but the point is that he recognizes that the current Tory government couldn’t get away with it.

Again, then, as so often throughout Brexit, what will happen with the Bill comes down to the schismatic internal politics of the Tory Party. That bleeds through to the other major current Brexit issue, the Northern Ireland Protocol. The two are potentially linked, since denying Brexiters what they call the ‘Brexit Freedoms Bill’ might be more or less difficult depending what they are or are not asked to accept as regards a deal on the Protocol.

The endless Northern Ireland Protocol saga: an end in sight?

There are several signs that such a deal is in the offing, and continued pressure from the United States for something to be achieved by April, for the twenty-fifth anniversary of the Good Friday Agreement, under threat of Joe Biden pulling out of a planned visit to the UK. That would be symbolically damaging, and betoken a more general frostiness in UK-US relations, and add to the sense of post-Brexit Britain’s diminished international standing.

One indication of progress that was little commented on, at least outside Northern Ireland, came with the quiet confirmation by a government minister during the holiday period that permanent border facilities will need to be built at Northern Ireland’s ports. It has long been accepted that these will be necessary, even under the UK’s proposals for revising the Protocol, but the failure to actually build them (rather than the temporary facilities) has been regarded by the EU as a sign of UK bad faith. So it is at least a straw in the wind.

More high profile were the comments of Leo Varadkar, now once again the Irish Taoiseach, indicating that both Ireland and the EU saw the possibility of a more flexible implementation of the Protocol, and acknowledging both the concerns of Northern Irish unionists and “mistakes” on all sides in the construction of the original Protocol.

It’s important to understand that there isn’t anything in this which is new in substance. It certainly doesn’t imply an acceptance of the hard-line Brexiter and Unionist positions whereby there is no role for the ECJ and no difference at all between Great Britain and Northern Ireland in their goods trading relationships with the EU. To do so would be to entirely destroy the Protocol and the EU could never agree to that, a point implicitly made by the German Foreign Minister this week in her reference to finding a pragmatic solution “on the basis of existing agreements”.

But Varadkar’s comments do have a political significance. I read it as part of an attempt to give both the UK government and Unionists a ‘ladder to climb down’, so as to be able to claim substantial ‘concessions’ from the EU, even if these turn out to be little more than what has been on offer for many months. Will that happen? Before Christmas, Charles Grant, the well-connected and well-informed Director of the Centre for European Reform, wrote an intriguing Twitter thread suggesting it might.

Continuing DUP opposition is likely to be ignored, his sources suggest, although an equally credible report from the Financial Times this week (£) suggests that DUP support is a primary consideration for the UK government. Personally, I think Grant’s account is more plausible, given recent history. For the DUP itself, the dynamic is somewhat similar to that faced by Sunak. If they oppose a Protocol deal by refusing to participate in the power-sharing institutions they will continue to add a Brexit crisis to all the other crises in Northern Ireland, especially that of the NHS. If they don’t, they face the wrath of even more extreme unionists parties, their equivalent of the ERG. For now, there is just a hint, following Varadkar’s statement, that they may be amenable to compromise though, if so, it will probably come with, literally, a price tag for the Westminster government.

On the key UK political issue of ERG opposition, Grant reports that senior sources anticipate that this won’t be a problem if the deal is supported by Chris Heaton-Harris and Steve Baker (both former ERG Chairs, and, now, NI Secretary and Minister, respectively), and this analysis is similar to the FT’s. I imagine that is true, though it bears saying in passing that it shows just how dysfunctional British politics has become that an issue with such massive repercussions, not just for Northern Ireland but for UK foreign policy and international reputation, should come down to what two extreme ideologues will accept.

But how likely is it that they will stay in line? That does not seem to me to be at all obvious, especially as regards Baker, who is a true Brexit fanatic. It’s easy to see him resigning again, like so many other Brexiters when confronted with the realities behind their fantasies. There is an additional question of whether, even if these two, and the ERG as a whole, accept a deal, they will regard it as permanently settled. After all, they supported the original Protocol before almost immediately insisting that it be re-written.

For Sunak, if he can get a deal by his party, the prize is clear. Resolving the running sore resulting from Boris Johnson’s irresponsible and dishonest conduct over the Protocol would be an achievement in itself, and would ease tensions with both the EU and the US. Perhaps more importantly, it would avoid an escalating conflict with the EU at a time when his government is beset with so many other crises. It would also deprive Labour of a major chunk of its minimalist post-Brexit policy offering to the electorate, that of resolving the Protocol.

Most of the political dynamics of this have been the same since the first rumblings, in early 2021, that the UK would renege on the Protocol. But for Sunak there is at least one significant difference. Lurking in the background is Boris Johnson with, reportedly, ambitions to regain the premiership (£). It seems an absurdity, but then post-Brexit Britain is absurd. It’s certainly further evidence of Johnson’s grotesque ego and malign influence.

Be that as it may, it would clearly be to Johnson’s advantage to agitate against any deal on the Protocol, and any retreat on the EU Retained Law Bill, as ‘betrayals of Brexit’. Of course, both would be in the national interest, but it would hardly be excessively cynical to say that this would not weigh heavily as a factor in Johnson’s mind, nor especially uncharitable to suspect it would not even occur to him that it was a factor to be considered at all.

Berk

And so we limp on into another year of Brexit, the evidence of its failure and unpopularity mounting, but our politics too dysfunctional to admit, still less to address, that failure.

Amongst David Frost’s many ludicrous characteristics is his pompous belief that he is some kind of political philosopher. It is all the more ludicrous since his sole and invariable point of reference is the Eighteenth Century ultra-Conservative Edmund Burke, from whom Frost derives the fatuous notion of sovereignty that did so much damage in his negotiation of the Trade and Cooperation Agreement. And Frost is not alone: the same cartoonish concept of sovereignty informs the current push from some Brexiter commentators (£) for an extreme, maximalist, approach to the use of the powers proposed by the Retained EU Law Bill.

In his latest column, Frost quotes Burke at length, declaiming that:

“The words of the great Tory political philosopher Edmund Burke from 1775 ring all too uncomfortably true today:

‘A nation may slide down fair and softly from the highest point of grandeur and prosperity to the lowest state of imbecility and meanness, without anyone marking a particular period in this declension; without asking a question about it, or in the least speculating on any of the innumerable acts which have stolen in this silent and insensible revolution. Every event so prepares the subsequent, that when it arrives, it produces no surprise nor any extraordinary alarm. I am certain that if pains, and great and immediate pains, are not taken to prevent it, such must be the fate of this Country.’”

It evidently does not occur to Frost that anyone paying attention has marked “a particular period in this declension” of the nation. It began on 23 June 2016. And endless questions have been raised about the “acts which have stolen in this silent and insensible revolution”, of which the most pressing is how on earth do we escape this godawful mess that Frost and his many cronies have inflicted upon this country.

Michael Fletcher’s articles include the plaintive lament that “we can’t carry on like this indefinitely, with the two halves of the country pulling in completely opposite directions and scarcely talking to each other”. I sense and can identify with the despair and distress that lies behind those words. And perhaps – hopefully – it is true that it can’t continue indefinitely, but, for the time being, we will have to live with it. The key to ending the impasse is, alas, held, as it always has been, by Brexiters like Frost.

 

Please note that there will be no post next Friday, so I expect the next one to be on 20 January 2023.

Britain is being choked by the knotweed of Brexit lies

It is difficult to make sense of what Johnson’s Brexit government is doing, or trying to do, as regards the Northern Ireland Protocol (NIP). I discussed the background in last week’s post, much of which remains relevant, but since then there have been daily, almost hourly, contradictory signals and reports.

What has been confirmed is the recently trailed shift from threatening to invoke Article 16 of the NIP to the much more confrontational threat to pass UK legislation to supposedly unilaterally and permanently override much of the Protocol. This, in itself, is an implicit admission of the failure of the Article 16 threat tactic that has dominated the UK’s approach for well over a year. In truth, it was never viable because, whatever some Brexiters persuaded themselves to believe, it couldn’t do what they thought it would. Another delusion bites the dust, though it continues to be mentioned.

On the ‘legislation’ plan, having failed to act on the rumoured intention to include it in last week’s Queen Speech, it was then set to be announced this week by Liz Truss. This duly happened, on Tuesday, marking the end of any possibility that Truss would ‘re-set’ relations with the EU. But, again contrary to some other previous rumours, the legislation was not tabled and may not be until the summer. So there’s been some slight softening of stance over just a few days. And talks will continue with the EU, although it has previously rejected the substance of Truss’s outline proposals, and the atmosphere will be even more sour as a result of this new threat.

As presaged in my last post, this is a significant escalation but not a decisive moment. Next October is now being spoken of as the deadline for a resolution, its significance being that that is when new elections would have to be held in Northern Ireland if no government has been formed there. But we have seen such deadlines come and go before.

Meanwhile, on Monday, to coincide with a visit to Belfast, Boris Johnson published an article that was more serious and somewhat more emollient than anything he has said before, and he has generally seemed to downplay the significance of the proposed legislation, for example by referring to it as being concerned only with “some relatively minor barriers to trade”. So this seems like a ‘softer’ approach than Truss’s.

The government's tactics are as unclear as ever

Thus, beyond continuing the game of Tom Tiddler’s Ground that has been dragging on for months, it remains unclear what the government’s tactics are. Is the idea of the new threat to satisfy the DUP sufficiently for them to join the power-sharing executive in Northern Ireland? If so, it seems already to have failed since their leader, Jeffrey Donaldson, has suggested that only with the passing of the legislation will that happen.

Is the idea, as discussed in my previous post, to try to garner US support by tying this new approach so closely to upholding the Good Friday (Belfast) Agreement (GFA)? Certainly Truss made this central to her announcement, although border expert Professor Katy Hayward, writing in this morning’s Irish Times, argues strongly that the government’s present approach is actually “giving succour to those who want to destroy" the GFA. Moreover, Suella Braverman, the “stooge” Attorney General, has apparently made the “primordial significance” of the GFA key to her advice that the legislation would be legal, although several leading experts say this term is legally meaningless and that there is no hierarchy of treaties whereby the GFA would 'trump' the NIP. 

This marks a shift in tactics from early attempts to justify the UK position primarily in terms of the economic effects on Northern Ireland (presumably in part because Northern Ireland is actually doing better than the rest of the post-Brexit UK as a result of the NIP). It is also a shift from framing the legal justification in terms of the supposed priority of parliamentary sovereignty over international law in the way that Braverman absurdly advised over the Internal Market Bill (IMB).

Another possible reason for this focus on the GFA, apart from the US dimension, is illustrated by the revealing comment in an otherwise predictably fatuous article by David Davis this week (£) that it gives the UK “the moral high ground”, which I suppose is an implicit acknowledgment of the evident moral low ground of seeking to renege on an agreement the UK negotiated and signed only a couple of years ago. It is hardly compelling, though, since, like the government, it signally fails to answer the question of why the NIP is a threat to the GFA now, whereas at the time of signature Johnson declared the two agreements to be fully compatible. Nor does it explain why a consent mechanism was created, despite the opposition of unionists already being known, that didn’t require cross-community agreement which is now deemed inadequate because of … unionist opposition.

Is the idea to play ‘mind games’ with the EU to try to get maximum concessions, the kind of ‘madman’ negotiating approach which was attempted throughout both the trade negotiations and last year’s NIP negotiations? If so, the EU may have noticed that, ultimately, the government backed down on ‘no (trade) deal’, on the illegal IMB clauses, and on Article 16. But, in the nature of that approach, this time might be different. Or is the idea to present impossible demands to the EU knowing they won’t be met but then enabling the UK to scrap the NIP blaming EU intransigence? To put it another way, is the UK using madman tactics, or is It actually mad?

Do the oscillations in the ‘hardness’ of tone reflect differences within the government between, especially, Johnson and Truss, as some reports have it (£)? Or is it Johnson’s own habitual dithering? Or does it (also) reflect blowing in the winds of, on the one hand, diplomatic pressure from the US and feared economic pressures from the EU, and, on the other, of contradictory political pressures from different groups of Tory MPs? Certainly, as so often throughout these Brexit years, negotiations with the EU seem almost secondary to internal negotiations within the Tory Party.

Within that, what is the significance of David Frost’s now constant background chorus of bellicose, and often frankly silly, rhetoric both in the UK (£) and in the US? Of course it may well reflect his ambitions for new political office, despite the failures, abundantly obvious to all but himself, of his previous ministerial career. But is he, as a result, also now taking a similar role to that played over the years by Nigel Farage (now rather silent about Brexit though, tellingly, he and Frost are now cosying up), pressuring the government from the sidelines to stay true to ‘pure Brexit’?

The government’s strategy is as unclear as ever

Along with, and plainly related to, these tactical questions are the bigger, strategic questions of what the government actually wants. Sometimes, Johnson and other ministers have talked as if the entirety of the NIP, and certainly its core provision of an Irish Sea border, is unacceptable in principle, and many Brexiters have called for it to be entirely scrapped because they have never accepted the need for any border at all. Yet at other times they talk as if what is at stake is only operational reforms to the practical application of the agreed deal, albeit going beyond what the EU has offered so far. In Truss’s proposed changes, this question is fudged: she says she does not want to scrap the Protocol, whilst seeking to change the operations so drastically that, in effect, it would amount to doing so.

One problem with this lack of strategic clarity is that, if the real aim is to gain fresh concessions, it reduces the incentive for the EU to offer them: why do so, if it will just lead to the demand for even more, or if the UK isn’t really seeking concessions but an excuse to collapse the whole agreement? But if the real aim is to collapse the agreement, then for how long can it be credible to keep making threats without carrying them out?

Perhaps an even bigger problem is that, despite what Brexiters think, the EU really isn’t pre-occupied with Brexit in the way that, at times, it once was. So even if there is some cunning British negotiating strategy designed to wrongfoot Brussels, it’s more likely to irritate and exasperate than produce sleepless nights. There’s certainly no longer any great interest in accommodating UK domestic politics. That largely ended when the Withdrawal Agreement was signed. Ironically, having left the EU, Brexiters and the Brexit government spend far more time and energy thinking and talking about the EU than the EU spends on Brexit or Britain. That lack of interest, quite as much as border checks, is part and parcel of what it means to be ‘a third country’.

There can be no clarity because there is no honesty

These and related issues can be endlessly debated. But I think the key to making sense of all of them is to recognize that the government can’t be clear about what it is doing because it can’t be honest about how it got to where it is now, and can’t be honest about where it wants to get to in the future. As was always likely, the skein of contradictory lies told over the last six years is thickening and spreading so as to overwhelm the entire post-Brexit polity. So, like knotweed, it is now choking the very Brexit it created and, with that, British politics more generally. That Northern Ireland should be the most visible manifestation of this is not surprising because, certainly since the announcement of ‘hard Brexit’ by Theresa May in her January 2017 Lancaster House speech, it has been at the epicentre of these contradictory lies.

First and foremost are all the lies of the referendum campaign and since, lies about what Brexit would (or would not) mean for Northern Ireland but, more broadly, about how it would be possible to have hard Brexit and yet have frictionless trade, or have ‘the exact same benefits’ as the single market and customs union membership yet without belonging to either. Perhaps most fundamentally, the lie was the idea that the UK could leave the EU and yet, in some ways, still be treated as if it had not. The implication was that Brexit would be a fundamental change, and yet many things would remain exactly the same, or at least could do, if only the EU did not want to ‘punish’ Britain, or was not ‘sulking’ about Brexit, accusations that have become articles of faith to Brexiters (as much as, once, it was an article of faith that ‘we hold all the cards’).

Johnson was the front man for all this and his “cakeism” precisely encapsulated its central ‘out and yet keep the benefits’ dishonesty. But it’s important to understand that he was not the architect of the lies, nor by any means their sole spokesperson. These were the lies of Brexit itself, and they are why the entirety of Brexit, and not just Brexit in Northern Ireland, is failing.

Johnson’s serial dishonesty

That said, it would be politically astute, and not unfair, for the Labour Party in particular to denounce what has happened as Johnson’s Brexit. To do so would certainly be more realistic and reasonable than the present approach of barely talking about it all. For, indeed, much of the current situation does bear the imprint of Johnson’s trademark dishonesty. For it partly arises from his invariable attempts to avoid hard realities and difficult decisions by lying, which have now caught up with him, badly.

Thus the reason he can’t be clear if the strategic aim is to scrap the NIP as unacceptable in principle is because he lied to the electorate in 2019 when he told them he had negotiated a great oven-ready deal. As a result, this week, under robust questioning, he had to say that he had signed the deal but had not anticipated that the EU would implement it in the way it did. However, because he can’t be clear if his aim is to scrap the NIP, he is unable to satisfy the DUP (and other unionists parties) or the ERG because he lied to them in promising that he would do so and, at least as regards the ERG, secured their support for his deal on that basis. For them, in principle and not just in practice the NIP is unacceptable. So anything the EU might conceivably agree to will not satisfy the ERG, if only because they have become so extreme that the very fact of the EU agreeing it would be enough to damn it in their eyes. As Rafael Behr put it in a superb article this week, “there is no concession big enough, no deal good enough” for them.

Yet if Johnson could give these hardliners what they want, and somehow bamboozle voters into forgetting his electoral promises about his 2019 deal, he would face opposition from what’s left of the centrist or traditional right amongst Tory MPs. It’s clear that Theresa May – who no doubt also reflects on how Johnson’s disloyalty and dishonesty undermined her – and some other Tory MPs will oppose a move to break international law, as will many Tory Peers, just as they did the illegal clauses of the IMB. Some, it seems, may tolerate the threat (but not the passing) of legislation as a ‘negotiating ploy’ with the EU to obtain further flexibilities within the NIP, but that just brings back the same questions: is it such a ploy, or is there a real intention to unilaterally disapply the NIP? Johnson can’t tell them the truth of that, either.

The realities of power

Beyond these domestic considerations, if Johnson does satisfy the hardliners then he faces the formidable problem of EU economic power and US power full stop. Neither the old Brexit lie that ‘they need us more than we need them’, nor the wider Brexit fantasy of untrammelled national sovereignty, survive contact with the realities of those powers. As I said in my previous post, a full-on trade war is not in immediate prospect, not least as the whole process of passing, let alone using, legislation to disapply the NIP will take many months.

But there will be at least some EU retaliations if the hardline path continues, and ultimately it will become impossible to avoid the issues which in essence go right back to 2016-17 and the arguments about ‘sequencing’: the prior condition for a trade agreement with the EU was and is the Withdrawal Agreement, with its three planks of the financial settlement, citizens’ rights, and Northern Ireland. Hardline Brexiters conned themselves that there was no need to accept that, and still blame May for doing so. But the reality is that she did, and she did so because in reality she had to.

Thus, in the very final analysis, if the UK completely reneges on the NIP then the EU will, justifiably, regard the trade agreement as void, as already more than hinted at by Maros Sefcovic. Because all the Brexit lies of 2016 are still lies now. If anything, ‘German car makers’ are even less likely to care than they did in 2016, and the UK is even less well-placed to surviving ‘on WTO terms’ than it was when ‘no deal Brexit’ was in prospect. But, again, Johnson and his fellow Brexiters are not able to admit those truths, either to themselves or the electorate.

So although this will all drag on for a long time yet, what is happening is that Johnson’s reported psychological desire to be liked by everyone, his political modus operandi of telling different lies to please different audiences, his predilection to defer making decisions, and his basic ‘cakeist’ refusal to accept that decisions really need to be made are all, finally, catching up with him. You can’t fool all of the people all of the time. Now, no one believes him, and for this lack of trust, at least, Labour do seem willing to criticize Johnson’s Brexit policy. However, to re-iterate, Johnson’s dishonesty and untrustworthiness, whilst important, have exacerbated rather than created the dishonesty inherent in Brexit.

The most fundamental problem: Brexit itself

One fundamental part of that dishonesty is the avoidance of the paradoxical question: how can you have a border without having a border? That question is central to the running sore of the NIP, but is also implicated in the knots the government is tied in over EU-GB import controls over conformity assessment marking, and over regulatory duplication/ divergence (£)*. Of course one might say that resolving irreconcilable, or even just bitterly contested, issues is the stuff of politics. The peace process and GFA actually provides a good example. However, the politics of Brexit never even attempted the kind of process in which irreconcilabilities and bitter oppositions could be fudged into some kind of workable, durable consensus.

That would have entailed acknowledging the closeness of the vote, the variety of views amongst Brexiters about how it should be done, and the fact that two out of the four nations had voted to remain, as well as the implications for the GFA. This may seem like pointless jobbing back, but it’s crucial to understand that it lies at the heart of the rolling political crisis we have been in since 2016. And the reason is precisely because the realities and the various trade-offs were never honestly admitted, and, worse, that even to try to do so was dishonestly dismissed as undemocratic. That honesty still eludes the British polity, whilst the dishonesty still haunts it.

It has recently become fashionable to say that May’s deal did, if belatedly, face up to the realities and trade-offs but this isn’t really true, or at best it’s only partially true. It is the case that her backstop did so, but the deal was still dishonest because it pretended that this backstop might never need to be used if the subsequent trade agreement was sufficiently deep, or if ‘alternative arrangements’ that would enable a fully open border were to be developed. However, since leaving both the single market and customs union were already red lines, there was no prospect at all of the future trade agreement avoiding the backstop whilst – as realists always said, and has been seen subsequently to be true – there are no ‘alternative arrangements’ sufficient to have replaced the backstop.

If May’s deal is considered honest, it is only by comparison with the infinitely more dishonest deal that Johnson did. But both were dishonest to a degree. May’s by agreeing to what was ostensibly a temporary ‘backstop’ but was actually a permanent ‘frontstop’; Johnson’s by agreeing to what was actually a permanent ‘frontstop’ whilst intending to treat it as a temporary bridge to a much more minimal, or non-existent, border.

A polity choked by lies

The reality is that the only way Brexit could fully be squared with the Northern Ireland situation (and also the only way it could be done without huge economic costs) was through single market membership (perhaps via EFTA) along with a UK-EU customs treaty. Alternatively, within hard Brexit, a deeper trade agreement would – and still could – have allowed a thinner Irish Sea border (and a thinner GB-EU border generally), as would an agreement on dynamic alignment of Sanitary and Phyto-sanitary regulations. Instead of accepting these realities, Brexiters have spent six years lying that there can be a border without having a border and, unsurprisingly, failing to achieve that outcome. In the latest developments, the government is again trying to enact that lie, and it is still failing. And it will inevitably go on failing until reality is accepted (or, perhaps, until Northern Ireland leaves the UK).

The swirl of the current, sometimes confusing, events only postpones facing up to reality, and leaves the country in the limbo which, in one form or another, we have been in since 2016. And it is not cost-free. The general economic damage of hard Brexit is now self-evident except to those who will always deny it. This latest NIP row is also economically damaging, especially to investment (a country on course to a possible trade war with its biggest trade partner isn’t very attractive), as well as being damaging to the fabric of Northern Irish society. It is also damaging to the UK’s international reputation even to be making, yet again, these threats to international law and it is obviously damaging to the UK’s strategic interests in strong, harmonious relationships with the EU and US, especially given the Ukraine war.

But our politics is stuck. It can neither admit reality but nor can it entirely deny it. The consequences of Brexit, including for Northern Ireland, are undeniable. Yet their causes, namely the lies inherent in Brexit, are barely discussable, at least in England. The Tories are too invested in Brexit to be honest about it, and Labour are too scared by Brexit to be vocal about it. So we stagger on, choked by the same old lies, and daily adding new ones, a spreading knotweed first suffocating all other plants in the garden and then undermining the very foundations of the country that used to be our home.

  

*These are all ultimately border questions because hard Brexit has created both a regulatory and a customs border with the EU, so even if not necessarily about what happens ‘at the border’ they all relate to the territory over or within which something (e.g. regulation, conformity assessment, data sharing, tariffs, origin of goods components, recognition of qualifications, validity of passports) applies or happens.

Due to other commitments, I don’t expect to have time to post again until Friday 10 June.