A recurrent observation – made sometimes with surprise and sometimes with a kind of perverse nostalgia - about this week’s political and parliamentary events is that it is ‘as if the Brexit battles have returned’. And it is true that, like an ageing rock band, re-formed to reprise its well-worn hits despite the much-publicized hostilities of its members, there were some all too familiar sights and sounds. Thus, as the Rwanda Bill ‘crisis vote’ approached, there were fevered speculations, briefings and counter-briefings, and crisis talks with the almost endless number of factions that make up what can still just about be called the Conservative Party.
As with such a band, it came as a slight surprise to learn that some of its members had not long ago died of self-abuse, as when the raddled features of Mark Francois emerged to announce the findings of the self-important dolts of the ERG ‘Star Chamber’, chaired by the apparently indestructible Bill Cash. The show even began in the time-honoured way with a rendition of the classic ‘cave-in of the Tory moderates’, to set the toes tapping. Francois did, however, introduce one new number, ’the Five Families’ which, it seems, refers to a grouping of some the right-wing factions which, indeed, have much in common.
The Brexit battles never went away
But the observation is wrong. It is not ‘as if the Brexit battles have returned’. They are the same battles, and they never went away, and they are explicitly seen as such by people like ‘New Conservative’ Miriam Cates. There are multiple, interwoven strands to this. One is that, as I suggested in my book on Brexit, a possible post-Brexit scenario would be a push for a Brexit 2.0 of derogation from the European Convention on Human Rights (ECHR) and, indeed, for months now, there have been growing calls from the Tory right for just that.
That scenario seemed possible not just because of the insatiability of Brexiters but because, as discussed in last week’s post, even before the referendum they conflated issues of EU membership with those of the ECHR. For that matter, it shouldn’t be forgotten that during that period, when Theresa May was still a remainer, she argued for withdrawal from the ECHR, whatever the outcome of the referendum, and that later, as Prime Minister, she vowed to fight the 2020 election (sic) on a platform of ECHR derogation (£).
It’s true that derogation isn’t what is at issue with the Rwanda Bill, which instead is an attempt to legislate to ‘disapply’ in domestic law some provisions within the ECHR, and certain other international agreements, in relation to the Rwanda policy (Dr Alice Donald and Dr Joelle Grogan of UK in a Changing Europe provide a detailed explanation of its provisions). However, some of the right-wing critics of the Bill would certainly prefer derogation, and all of them want it to go further in disapplying international law, especially in relation to whether individual appeals against trans-shipment to Rwanda would be allowable. In this sense, they are indeed pushing for a Brexit 2.0 scenario.
Closely inter-twined with that is the issue of whether the current Bill itself threatens to break international law. The government claims that it is framed in a way which stays just short of that, and this is the basis on which the ‘moderates’ of the One Nation group backed it. However, the UK Parliament’s Joint Committee on Human Rights issued a statement this week arguing that, even as drafted, it already breaches international law, a view endorsed by Professor Mark Elliot of Cambridge University, a leading authority in this area. In flirting with violating international law, or even actually doing so, the Rwanda Bill again represents a continuation, rather than a re-appearance, of something that began with Brexit. For it was not until the Internal Market Bill (IMB) of September 2020, which threatened to break some provisions in the Northern Ireland Protocol (NIP), that any British Minister had proposed legislation which would self-avowedly break international law.
The two aspects of Brexit nihilism
That threat arose again, with the Northern Ireland Protocol Bill in 2022, and although, in both cases, it did not actually happen, it shows how Brexit, specifically, has proved the catalyst for an almost nihilistic frenzy on the political right. One aspect of that is a kind of Jacobinism in which no measure is too extreme if it delivers Brexit, whether the price be the economic one of ‘no deal Brexit’ or the reputational one of reneging on international agreements. From quite early in the Brexit process, and especially once Boris Johnson came to power, international pariahdom seemed to matter not at all to the Brexiters. It is now abundantly clear that he signed the NIP without intending to honour it, and that many Brexiters who voted for it in parliament did so in the expectation that it would not be honoured.
A second aspect of this nihilism, related but slightly different, is a doctrinaire and wholly absurd idea of parliamentary sovereignty, within which international law is not just something that can be ignored but something which is actually meaningless. On this argument, which has been foregrounded again in relation to the Rwanda Bill (£), because parliament is sovereign it cannot be bound or constrained by anything else. At the time of the IMB proposals, this ludicrous argument was actually endorsed by the then Attorney General Suella Braverman.
That it is ludicrous was explained at that time, again by Mark Elliott, and, now, he has written of the Rwanda Bill that:
“it proceeds on the basis of the sleight of hand that the UK Parliament, because it is sovereign, can somehow free the Government from its international legal obligations. But this is to conflate the sovereignty of the UK Parliament in domestic law with the UK’s sovereignty on the international plane as a State. It is precisely in exercise of its State sovereignty that the UK can enter, and has entered, into binding treaty obligations.”
At its extreme, this idea of parliamentary sovereignty leaves no constitutional place for domestic courts, let alone international ones (actually, at its most extreme, as noted in my last post and amplified by Ian Dunt’s Substack, it proposes that parliament is sovereign over reality itself).
It is important to understand that these are not arcane points of legal or political theory. They have a crucial practical importance. For one thing, the UK is hardly in a position to call on other states, be it China, Russia or Israel, to act within international law and to respect human rights if its position is that sovereignty allows every country to do whatever it wants. For another, the UK is hardly an attractive partner for other countries to strike deals with, whether about trade or, even, asylum processing, if it reserves the right to violate those deals. And, for a third, which should matter to everyone, this doctrine makes it possible that parliament might act to remove any and every right from any or all of us, with no recourse to any court. It is precisely to constrain that possibility that we need the principle that there are some laws and rights that transcend the power of nation states.
It may seem as if these two aspects of Brexitist nihilism – the ‘Jacobin’ ruthlessness that the end justifies the means, and the ‘sovereigntist’ idea that parliament is unconstrained – are the same. But the reason I said they are ‘slightly different’ is because at times they contradict each other, even though they are often espoused by the same people.
Specifically, throughout the Brexit process, the idea of the ‘will of the people’ was often claimed by Brexiters to mean that sovereignty lay, indeed, with ‘the people’, and the constant accusation was that parliament was improperly ‘thwarting’ this will. But, if parliament is sovereign, how could there be anything improper in this (even assuming that was what parliament was doing)? Moreover, the most extreme example of the Jacobin aspect was when Boris Johnson and his minions unlawfully prorogued parliament showing, in fact, utter contempt for parliamentary sovereignty. For, remember, their specific objection was to the way that parliament itself was passing legislation like the Benn Act (to prevent no-deal Brexit) in defiance of the Executive.
More generally, Brexit has been used as a pretext to sideline parliament, for example through the burgeoning use of ‘Henry VIII powers’ and, of course, but for the first Gina Miller case, parliament would not have had a vote on triggering Article 50. As with prorogation, it was only the courts which acted to constrain political power and, in these cases, to constrain the power not of parliament but of the Executive.
Rwanda Bill: Brexitism won the day without winning the vote
In short Brexit nihilism is ludicrous in theory, dangerous in practice, and incoherent in both theory and practice. But it hasn’t just re-emerged for an encore with the Rwanda Bill. It is embedded in British politics. That is most obviously the case with the Tory Party which, as I wrote a couple of months ago, has been driven mad by Brexit. Even longer ago, in August 2022 when the Tories were engaged in choosing their new leader, who subsequently turned out to be Liz Truss, I made the point, which has become almost a cliché since then, that the Tory Party had become ‘unleadable’.
That had been only temporarily masked by Boris Johnson’s 2019 election victory. It gave the government a substantial majority – albeit one now whittled away to 56 by by-election losses and expulsions – but, actually, apart from the very early vote to pass the Withdrawal Agreement that ‘got Brexit done’ (sic), it was always a fragile majority, and factionalism and infighting were never far from the surface. Then, following the Truss implosion, Rishi Sunak briefly had enough control over the Brexit Ultras to squash the rebellion over his Windsor Framework, which at one stage threatened to muster more than 100 rebels but in the end fizzled out. At that time, I, like others, wondered if Britain’s Brexit fever had finally broken.
That has proved not to be the case. Although Sunak also won this week’s Rwanda Bill vote, with many of the ‘five families’ abstaining rather than voting against, the circumstances are very different to the Windsor Framework vote. For one thing, this is only the beginning of a legislative process which, assuming House of Lords opposition, has no realistic chance of being completed before the next election. There are plenty more votes on possible amendments to come which the rebels may win.
For another, even though the Brexitists want to make the legislation even ‘harder’, its existence even in its current form shows the extent to which their ideology has captured “the soul of the Conservative Party”. A rather naïve column from Iain Martin in the Times (£) suggested that what happened this week was that the “moderate MPs” who form “the bulk of the parliamentary party” had shown how marginal the “fundamentalist Brexiteers” have become. What that misses is just how immoderate the entire party has become, so that what would once have been an extreme position is now mainstream.
Because this wasn’t Sunak ‘the pragmatist’ of the Windsor Framework, temporarily putting the Ultras back in their box. It was Sunak, with the support of the ‘moderates’, making as one of his central priorities an unworkable, immoral, and probably illegal populist policy, that began with Johnson, and finding that, as always, the Ultras want more. It doesn’t even matter if they don’t get that from Sunak now since, as Robert Shrimsley astutely pointed out this week, it will just be grist to their post-election mill that his government failed by not being ‘pure’ enough in its Conservatism.
Where is the Tory Party heading?
But the Tory Party is really no longer discussable without reference to Reform and Nigel Farage. Clearly that has been true for a while, going right back to UKIP and the roots of the referendum. It was certainly obvious at the last election, when Farage stood down from fighting most Tory-held seats. Now, the two are inseparable, both at the level of electoral fortunes and, perhaps more importantly, because there is no discernible ideological difference between Reform and most of – if we must call them so – the ‘five families’.
That’s especially so for the New Conservatives and National Conservatives, and there’s almost a sense – or am I imagining it? – that the ERG now seems slightly dated and quaintly respectable by comparison with this new breed of Tory rightwingers. Bill Cash may be many things, but he isn’t a Jonathan Gullis or a Lee Anderson. Even Francois is more ludicrous than sinister. It’s a bit like the way that ‘old school’ gangland bosses like the Krays were displaced by even more ruthlessly violent psychopaths. Say what you like about the ERG, but at least they looked after their own and loved their dear old mum, so to speak.
At all events, there’s no doubt the direction the Tories are heading in, at least in the short-term, assuming they lose the next election (and it’s telling that an ambitious one-time ‘moderate’ like Robert Jenrick is now re-positioning himself in anticipation of this direction). Even if Martin was right that there are still ‘moderates’ in the parliamentary party, it is undeniable that the membership, which will choose its next leader, is far from moderate. The Johnson-Farage dream ticket may just be a dream (or, perhaps, a nightmare), but the fact that anyone would even float such an idea, or that others pine for a Liz Truss comeback, shows the madness that is in the air. We may even see a complete re-alignment of the British Right, drawing in Reform but excluding what has previously been understood as Conservative traditionalism (for all that such an alignment would claim to be one towards ‘true Conservatism’), with it becoming the Brexitist Party in all but name.
Such a party, perhaps more likely led by one of the NewCons like Cates rather than one of the more familiar throwbacks like Braverman, and endorsed if not joined by Farage, would campaign not just on draconian anti-immigration policies but also on derogating from the ECHR and, very likely, reneging on the NIP. This might doom the right to electoral irrelevance, but that certainly can’t be assumed, especially after the Brexit vote, even if the 2024 election sees a virtual Tory wipe-out. There is probably bedrock support of around 25%-30% of the electorate for such a Brexitist or NatCon party, augmented by some who habitually don’t vote and others who, after a few years of a Labour government, come to think that any kind of change, and any kind of ‘kick to the Establishment’ is justified.
That could create an electoral coalition similar to that which Vote Leave constructed, and, unlike then, it might only need, say, 40% of the vote rather than 50% to win an election, and it would have vociferous support from many sections of the media. Even if it only came close to winning, that might cement a NatCon takeover of the party for another electoral cycle, and for so long as it wasn’t in power then the many internal contradictions of its likely economic programme, which Times columnist Danny Finkelstein identified this week, could be glossed over. Indeed, as with UKIP and Brexiters in general, such a party could be far more effective and influential as a campaigning protest movement than as a government.
The Brexit battle to come
This is just speculation. But, assuming it has any plausibility at all, it is highly relevant speculation at least in relation to what will undoubtedly be continuing debate about re-joining the EU or the single market. That was given new impetus this week by a widely-discussed article by Martin Wolf in the Financial Times suggesting re-joining is highly unlikely any time soon, if ever. Other views are available, of course. But my point here, and of course I and many others have made it many times, is that for as long as there is a feasible scenario in which an incoming British government would seek to overturn any version of re-joining which might have occurred, such re-joining would never be countenanced by the EU. In this sense, the political battle for ‘anti-Brexiters’ for the time being is not to re-join, or even to try to persuade Labour to have a re-join policy, but to expunge Brexitism from British politics, or at least confine it to the margins.
Clearly things may play out differently. Even Wolf acknowledges the possibility that, say, a re-elected Trump pulling the US out of NATO would create such a geo-political shock that all bets would be off. So, too, might something as yet completely unforeseen, and perhaps (even) worse. But it would seem foolhardy, and even more pessimistic than Wolf himself, to work on that assumption when the scenario I have described is, for the time being, the more likely one.
On that cheery note, I’m signing off for Christmas and the New Year (unless something big happens). Many thanks to all who have read and publicized the blog this year and, in more recent months, left comments. I nearly decided to give up on it when I reached the seven-year mark, but here we still are. I’ll re-start early in 2024.
If you are stuck for a Christmas present for someone, why not buy them a copy of the updated edition of my book Brexit Unfolded. How no one got what they wanted (and why they were never going to), published by Biteback in September 2023?
Showing posts with label Parliament. Show all posts
Showing posts with label Parliament. Show all posts
Friday, 15 December 2023
Tuesday, 21 March 2023
Book reviews
Russell, Meg and James, Lisa (2023). The Parliamentary Battle over Brexit. Oxford: Oxford University Press. ISBN 978-0-19-284971-7 (Hardback). 416 pages. £25
De Rynck, Stefaan (2023). Inside the Deal. How the EU Got Brexit Done. Newcastle: Agenda Publishing. ISBN 978-1-78821-568-8 (Hardback). 288 pages. £25
As time passes since the Brexit referendum and the process of leaving the EU that followed, there is a growing literature describing and explaining what happened. The two excellent books reviewed here are amongst the most recent and, whilst very different in focus and approach, each fills in a crucial piece of the jigsaw of what will become the history of Brexit. Moreover, they are pieces that fit together so that they can profitably be read as a pair which, together, reveal two very significant chunks of the Brexit picture. In fact, it would be illuminating to chart the precise points they fit together by mapping specific moments in the UK-EU negotiations with specific events in the UK parliament, although I won’t attempt that here.
Russell & James: The Parliamentary Battle over Brexit
Meg Russell and Lisa James’ book is an academic text, whose authors work at University College London’s Constitution Unit and thus bring a very high degree of academic credibility and expertise, and it is based on a major research study of ‘Brexit, Parliament and the Constitution’. As such, it draws on the Hansard record of parliamentary proceedings and a whole swathe of other official documents, secondary sources including other studies of Brexit and media reports, and a wide variety of interviews with participants in the events conducted by the authors (and others). These are all assiduously cited and there is an extensive bibliography, a compendious index, as well as a useful glossary of parliamentary terms. In short, it is a scholarly account but, for all that, a readable one and certainly accessible for general readers.
One problem with writing about Brexit is where to begin the story and where to end it. For the start, some authors (e.g. O’Rourke, 2018) go back as far as the Nineteenth century, but here, apart from a short preamble, the narrative begins with the steps that led to the 2016 referendum. The bulk of the book is a chronological account of parliamentary events, including their constitutional and legal aspects, from the referendum onwards. That chronology ends when the UK left the EU in 2020, apart from some fairly brief comments in the concluding chapter, which also serves to bring together some of the main themes in a non-chronological way.
This framing does mean that neither the negotiation of the Trade and Cooperation Agreement nor the Transition Period are covered, and nor are the subsequent arguments and negotiations about the Northern Ireland Protocol. However, that is perfectly reasonable since these did not give rise to a great deal, or certainly not to the same degree, as regards the specifically parliamentary focus of this book.
So far as that parliamentary focus is concerned, I doubt whether anyone will ever improve on Russell & James’s account. It is highly detailed, lucid, and painstakingly accurate. I suppose there may be future PhDs or other treatises which delve even more deeply into this or that aspect, but, if so, they will probably not be of huge interest to more general readers and, by definition, won’t be accounts of the parliamentary story as a whole. The authors effortlessly unpick the often extremely abstruse history of, amongst others things, Meaningful Votes, Indicative Votes, complex amendments and unusual procedures. This is all sure-footed and faultless.
For people who followed that story closely at the time, there probably won’t be any huge surprises in this book, although, even for them, there will certainly be many details which have since been forgotten. Moreover, as the authors rightly observe, “[e]ven those closely involved sometimes struggled to follow the intense and fast-moving developments” (p.6), so it is invaluable to have this meticulous record of events both as a reminder and also as a way of understanding, retrospectively, things which at the time were ignored or misunderstood or which have since been misrepresented.
Russell & James are assiduous in not offering a ‘point of view’ on Brexit itself, and I think that readers, regardless of their own views, will find this a fair and objective account. Where they do have a point of view is on the desirability and necessity of “respect[ing] parliament as the central democratic institution … upon which UK democracy depends” (p.6). Analytically, this is the main guiding theme of the book, and it leads to some acute observations, in particular about the problematic lack of clarity of the place of referendums in the UK constitution, and the risk of them creating a conflict between parliamentarians and the ‘will of the people’ (p.61).
This certainly happened in the case of the Brexit referendum, and was compounded by the fact that the campaign to leave the EU did not specify any kind of plan or model for how it was to be done. The authors show clearly throughout (but especially pp. 321-324) how different actors mobilised, sometimes inconsistently, contradictory views about popular, parliamentary and executive sovereignty, and they argue that there are significant lessons to be learned for the conduct of any future referendums, whatever the topic may be.
Closely allied with this, Russell & James make some acute points about the conduct of Theresa May. One is about her failure to involve a wide variety of stakeholders (in fact, to involve anyone, much) in the immediate post-referendum process of shaping Brexit. Others have made this point, but the authors’ distinctive insight is that this failure served to exacerbate the incipient gap between popular and parliamentary sovereignty: the ‘people had spoken’ but they only got to speak once, and it fell to parliament to give concrete form to what they had said. Secondly, they argue that May constantly talked as if ‘parliament’ were thwarting her Brexit plans, whereas, in fact, her staunchest opponents were the ‘Brexiteers’ within her own party (one minor criticism of the book is the consistent use of the term ‘Brexiteers’, their own self-preferred label, with its connotations of buccaneering freedom, rather than the more neutral ‘Brexiters’).
These points relate to what Brexiters wrongly claim, and many members of the public have come to believe, about this period, namely that it was one in which the 'remainer parliament’ tried to ‘thwart’ Brexit. So it is worth quoting Russell & James at some length:
“[The] central disagreement about what Brexit should mean was facilitated by the original lack of clarity in the referendum. But it took place between May’s government and Johnson’s supporters – not between the institution of government and the institution of parliament. The Conservative MPs who blocked May’s deal, including Johnson himself, believed that they were defending Brexit, rather than undermining it. This made it wholly misleading to blame parliament for ‘thwarting’ Brexit, when those involved had in fact used parliament to pursue an argument with May’s government.” (p. 313, emphases in original)
I agree with this analysis, but would add that it reveals something which is not so much about Brexit as about what is increasingly being called ‘Brexitism’. For whilst, as I suggested earlier, most readers would agree that Russell & James’ descriptions of the parliamentary events are fair and accurate, it is surely the case that at least some Brexiters will never accept their analysis of those events, including especially that just quoted. And that is because for a certain – perhaps small, but very influential – group of Brexiters none of the constitutional niceties or conventions really matter or, worse, they see them as the devices of ‘the elite’ and regard those who insist that they do matter as apologists for, if not indeed members of, that elite.
In that sense, for all that the book is neutral on Brexit itself, it cannot help but be partisan in relation to ‘Brexitism’. Indeed, the last sentences of the book imply as much:
[The] “restoration of constitutional norms is not an easy task, or a challenge in which they UK is alone. It is part of an international struggle, to defend democracy and institutions.” (p. 335)
This is not a criticism of the book, so much as to point to the way that Brexit, in its wider sense, does not admit of neutrality. For that reason, Russell & James do quite as great a public service in their concern to emphasise the importance of parliamentary democracy and constitutional propriety as they do in their forensic account of the events, sometimes arcane and often dramatic, that took place in the British parliament between 2016 and 2020.
De Rynck: Inside the Deal. How the EU Got Brexit Done
For most British readers, at least, Russell & James’ parliamentary focus will be relatively familiar, as will the sense it brings of the negotiations with the EU being part of the background context of the political battles that were taking place in the UK. For such readers, including most of those who followed Brexit closely, the complete shift in the centring of the story provided by Stefaan De Rynck’s book is therefore fascinating and informative. Here, what he at one point calls “the shenanigans of British politics” (p. 246) are very much the background context to the EU’s negotiating process with the UK which is his focus.
De Rynck, an experienced EU civil servant who was a senior aide to Michel Barnier throughout the negotiations, provides an insider account of that process. In that sense, unlike Russell & James, he was an actor in, rather than an analyst of, the events described and, although he also has high academic credentials, this is not written as an academic book. It is nevertheless highly detailed and, in places, replete with technical detail, whilst retaining readability – to a greater extent, in my view, than Barnier’s (2022) own, diary-based, book about the negotiations.
Like Russell & James, the approach is chronological, in this case running essentially from the referendum in 2016 to the finalization of the Trade and Cooperation Agreement at the end of 2020. It is based on official papers and media reports, as well as discussions held by the author with other participants and, of course, his own personal experience. It does not provide citations or a bibliography, which is a shame, but there is a good index and also a useful chronology of events listed at the beginning.
Although the focus and the centring of this version of the Brexit story is different to that provided by most, if not all, British analysts, including Russell & James, it is, indeed, recognizably the same story, and, in any case, De Rynck is deeply knowledgeable about UK politics. In particular, the consequences of there having been no defined UK plan for how to leave also runs through it. However, whereas the EU was as shocked as the UK by the referendum result, it much more quickly came to a settled view on what Brexit could and could not mean, something which didn’t exist in the UK polity and, arguably, still doesn’t.
That the EU was able to come to such a position, and stick to it pretty much unchanged throughout, was partly, on De Rynck’s account (and that of others), because of the very considerable efforts of Barnier and others to construct and maintain a consensus view amongst member states and other key actors. That was the exact opposite of May’s failure to even attempt to create such a consensus within the UK, and also the exact opposite of what Brexiters, at least, expected the EU to achieve. It enabled what De Rynck plausibly, and I would think accurately, depicts as a largely technocratic, highly transparent, and certainly patient approach to the negotiations.
I wonder, though, whether it doesn’t also reflect the fact that – notwithstanding the initial shock and, no doubt, in many quarters upset and even anger – Brexit simply didn’t have the emotional and political-psychological charge in the EU that it had in Britain. For sure, it was a matter of deep concern, perhaps most especially in Ireland, and De Rynck explains at several points how important it was to the EU to maintain solidarity with Dublin, contrary to UK beliefs that it would be “thrown under a bus” (p. 118). But Brexit never had the political toxicity in any EU country, or within the EU collectively, that it had in the UK.
The idea that the EU would be divided, including the idea that it would sacrifice Ireland’s interests, is one of numerous examples that permeate the book of how the UK never really understood or cared sufficiently about EU perspectives on Brexit. That doesn’t just apply to Brexiters, but remainers, too. De Rynck points out a number of fallacies, including that of those “remainers who thought Barnier was on their side” (p.2). However, the more consequential fallacies were those taken over from Brexiters by the UK government, because these significantly inflected the negotiations.
These fallacies, which re-appear over-and-over again in various forms in the book, include all the different versions of ‘cherry-picking’. It is instructive to have it confirmed that, as many have speculated, Theresa May did indeed initially approach Brexit as she had done her negotiations within the EU as Home Secretary, which was to “first opt-out of all membership obligations and [then] back in to those elements in the UK’s interest” (p.12). But that was just an instance of the wider inability of the UK government to understand the difference between negotiating as, effectively, a third country (or a third country in waiting) rather than as a member. That also explains what De Rynck calls the fallacy of the belief that ‘the EU always budges at the last minute’, as if Brexit were like a summit of member states.
Indeed, although his tone is scrupulously polite throughout, it is impossible to read De Rynck’s book without detecting a degree of bemusement at how UK diplomacy became so crass following Brexit, especially in the automatic, and in his assessment counter-productive, adoption of an adversarial approach to the negotiations, and the persistent belief that threats of ‘no deal’ (whether over the Withdrawal Agreement or the Trade and Cooperation Agreement) would produce meaningful concessions from the EU. As he pithily puts it, “the UK government played a game of chicken, by itself” (p. 247). Many of us in the UK made similar observations, but it is interesting to learn that this was, indeed, how it appeared to the EU negotiators.
Interesting, though, is perhaps too weak a word. It is also, at least for a British reader, embarrassing or worse to see just how unrealistic, if not downright ignorant, the UK government’s conduct was. Again, De Rynck is diplomatic about this, but reading between the lines, David Frost comes out particularly badly. For example, following Frost’s new threat “to walk away” from the talks in September 2020, he coolly writes that “Barnier debriefed his officials that the UK’s negotiator barely seemed to believe his own threat” (p231).
There is also an implication, for example in his discussion of the photo taken at the start of the Article 50 negotiations of David Davis, with no papers, grinning across the table at the Barnier team with their bulging files, that De Rynck felt a degree of perhaps professional sympathy with the UK civil servants. As he notes, “in the UK, the political bickering deprived the civil service of a direction to use its knowledge productively. Preparatory work by a civil service cannot make up for political indecisiveness” (p.40).
However, ultimately, even greater political decisiveness from the UK could not have compensated for the lack of realism of its demands in the face of the power asymmetry of the negotiating partners, which is effectively the story of the book. Although pro-Brexit readers probably won’t like it much, it will be hard for them to disagree with its central contention that the outcome for the EU was “close to the best-case scenario imagined in October 2016” (p. 245), if only because they, themselves, so frequently bemoan that they have not had ‘the Brexit we were promised’.
De Rynck, Stefaan (2023). Inside the Deal. How the EU Got Brexit Done. Newcastle: Agenda Publishing. ISBN 978-1-78821-568-8 (Hardback). 288 pages. £25
As time passes since the Brexit referendum and the process of leaving the EU that followed, there is a growing literature describing and explaining what happened. The two excellent books reviewed here are amongst the most recent and, whilst very different in focus and approach, each fills in a crucial piece of the jigsaw of what will become the history of Brexit. Moreover, they are pieces that fit together so that they can profitably be read as a pair which, together, reveal two very significant chunks of the Brexit picture. In fact, it would be illuminating to chart the precise points they fit together by mapping specific moments in the UK-EU negotiations with specific events in the UK parliament, although I won’t attempt that here.
Russell & James: The Parliamentary Battle over Brexit
Meg Russell and Lisa James’ book is an academic text, whose authors work at University College London’s Constitution Unit and thus bring a very high degree of academic credibility and expertise, and it is based on a major research study of ‘Brexit, Parliament and the Constitution’. As such, it draws on the Hansard record of parliamentary proceedings and a whole swathe of other official documents, secondary sources including other studies of Brexit and media reports, and a wide variety of interviews with participants in the events conducted by the authors (and others). These are all assiduously cited and there is an extensive bibliography, a compendious index, as well as a useful glossary of parliamentary terms. In short, it is a scholarly account but, for all that, a readable one and certainly accessible for general readers.
One problem with writing about Brexit is where to begin the story and where to end it. For the start, some authors (e.g. O’Rourke, 2018) go back as far as the Nineteenth century, but here, apart from a short preamble, the narrative begins with the steps that led to the 2016 referendum. The bulk of the book is a chronological account of parliamentary events, including their constitutional and legal aspects, from the referendum onwards. That chronology ends when the UK left the EU in 2020, apart from some fairly brief comments in the concluding chapter, which also serves to bring together some of the main themes in a non-chronological way.
This framing does mean that neither the negotiation of the Trade and Cooperation Agreement nor the Transition Period are covered, and nor are the subsequent arguments and negotiations about the Northern Ireland Protocol. However, that is perfectly reasonable since these did not give rise to a great deal, or certainly not to the same degree, as regards the specifically parliamentary focus of this book.
So far as that parliamentary focus is concerned, I doubt whether anyone will ever improve on Russell & James’s account. It is highly detailed, lucid, and painstakingly accurate. I suppose there may be future PhDs or other treatises which delve even more deeply into this or that aspect, but, if so, they will probably not be of huge interest to more general readers and, by definition, won’t be accounts of the parliamentary story as a whole. The authors effortlessly unpick the often extremely abstruse history of, amongst others things, Meaningful Votes, Indicative Votes, complex amendments and unusual procedures. This is all sure-footed and faultless.
For people who followed that story closely at the time, there probably won’t be any huge surprises in this book, although, even for them, there will certainly be many details which have since been forgotten. Moreover, as the authors rightly observe, “[e]ven those closely involved sometimes struggled to follow the intense and fast-moving developments” (p.6), so it is invaluable to have this meticulous record of events both as a reminder and also as a way of understanding, retrospectively, things which at the time were ignored or misunderstood or which have since been misrepresented.
Russell & James are assiduous in not offering a ‘point of view’ on Brexit itself, and I think that readers, regardless of their own views, will find this a fair and objective account. Where they do have a point of view is on the desirability and necessity of “respect[ing] parliament as the central democratic institution … upon which UK democracy depends” (p.6). Analytically, this is the main guiding theme of the book, and it leads to some acute observations, in particular about the problematic lack of clarity of the place of referendums in the UK constitution, and the risk of them creating a conflict between parliamentarians and the ‘will of the people’ (p.61).
This certainly happened in the case of the Brexit referendum, and was compounded by the fact that the campaign to leave the EU did not specify any kind of plan or model for how it was to be done. The authors show clearly throughout (but especially pp. 321-324) how different actors mobilised, sometimes inconsistently, contradictory views about popular, parliamentary and executive sovereignty, and they argue that there are significant lessons to be learned for the conduct of any future referendums, whatever the topic may be.
Closely allied with this, Russell & James make some acute points about the conduct of Theresa May. One is about her failure to involve a wide variety of stakeholders (in fact, to involve anyone, much) in the immediate post-referendum process of shaping Brexit. Others have made this point, but the authors’ distinctive insight is that this failure served to exacerbate the incipient gap between popular and parliamentary sovereignty: the ‘people had spoken’ but they only got to speak once, and it fell to parliament to give concrete form to what they had said. Secondly, they argue that May constantly talked as if ‘parliament’ were thwarting her Brexit plans, whereas, in fact, her staunchest opponents were the ‘Brexiteers’ within her own party (one minor criticism of the book is the consistent use of the term ‘Brexiteers’, their own self-preferred label, with its connotations of buccaneering freedom, rather than the more neutral ‘Brexiters’).
These points relate to what Brexiters wrongly claim, and many members of the public have come to believe, about this period, namely that it was one in which the 'remainer parliament’ tried to ‘thwart’ Brexit. So it is worth quoting Russell & James at some length:
“[The] central disagreement about what Brexit should mean was facilitated by the original lack of clarity in the referendum. But it took place between May’s government and Johnson’s supporters – not between the institution of government and the institution of parliament. The Conservative MPs who blocked May’s deal, including Johnson himself, believed that they were defending Brexit, rather than undermining it. This made it wholly misleading to blame parliament for ‘thwarting’ Brexit, when those involved had in fact used parliament to pursue an argument with May’s government.” (p. 313, emphases in original)
I agree with this analysis, but would add that it reveals something which is not so much about Brexit as about what is increasingly being called ‘Brexitism’. For whilst, as I suggested earlier, most readers would agree that Russell & James’ descriptions of the parliamentary events are fair and accurate, it is surely the case that at least some Brexiters will never accept their analysis of those events, including especially that just quoted. And that is because for a certain – perhaps small, but very influential – group of Brexiters none of the constitutional niceties or conventions really matter or, worse, they see them as the devices of ‘the elite’ and regard those who insist that they do matter as apologists for, if not indeed members of, that elite.
In that sense, for all that the book is neutral on Brexit itself, it cannot help but be partisan in relation to ‘Brexitism’. Indeed, the last sentences of the book imply as much:
[The] “restoration of constitutional norms is not an easy task, or a challenge in which they UK is alone. It is part of an international struggle, to defend democracy and institutions.” (p. 335)
This is not a criticism of the book, so much as to point to the way that Brexit, in its wider sense, does not admit of neutrality. For that reason, Russell & James do quite as great a public service in their concern to emphasise the importance of parliamentary democracy and constitutional propriety as they do in their forensic account of the events, sometimes arcane and often dramatic, that took place in the British parliament between 2016 and 2020.
De Rynck: Inside the Deal. How the EU Got Brexit Done
For most British readers, at least, Russell & James’ parliamentary focus will be relatively familiar, as will the sense it brings of the negotiations with the EU being part of the background context of the political battles that were taking place in the UK. For such readers, including most of those who followed Brexit closely, the complete shift in the centring of the story provided by Stefaan De Rynck’s book is therefore fascinating and informative. Here, what he at one point calls “the shenanigans of British politics” (p. 246) are very much the background context to the EU’s negotiating process with the UK which is his focus.
De Rynck, an experienced EU civil servant who was a senior aide to Michel Barnier throughout the negotiations, provides an insider account of that process. In that sense, unlike Russell & James, he was an actor in, rather than an analyst of, the events described and, although he also has high academic credentials, this is not written as an academic book. It is nevertheless highly detailed and, in places, replete with technical detail, whilst retaining readability – to a greater extent, in my view, than Barnier’s (2022) own, diary-based, book about the negotiations.
Like Russell & James, the approach is chronological, in this case running essentially from the referendum in 2016 to the finalization of the Trade and Cooperation Agreement at the end of 2020. It is based on official papers and media reports, as well as discussions held by the author with other participants and, of course, his own personal experience. It does not provide citations or a bibliography, which is a shame, but there is a good index and also a useful chronology of events listed at the beginning.
Although the focus and the centring of this version of the Brexit story is different to that provided by most, if not all, British analysts, including Russell & James, it is, indeed, recognizably the same story, and, in any case, De Rynck is deeply knowledgeable about UK politics. In particular, the consequences of there having been no defined UK plan for how to leave also runs through it. However, whereas the EU was as shocked as the UK by the referendum result, it much more quickly came to a settled view on what Brexit could and could not mean, something which didn’t exist in the UK polity and, arguably, still doesn’t.
That the EU was able to come to such a position, and stick to it pretty much unchanged throughout, was partly, on De Rynck’s account (and that of others), because of the very considerable efforts of Barnier and others to construct and maintain a consensus view amongst member states and other key actors. That was the exact opposite of May’s failure to even attempt to create such a consensus within the UK, and also the exact opposite of what Brexiters, at least, expected the EU to achieve. It enabled what De Rynck plausibly, and I would think accurately, depicts as a largely technocratic, highly transparent, and certainly patient approach to the negotiations.
I wonder, though, whether it doesn’t also reflect the fact that – notwithstanding the initial shock and, no doubt, in many quarters upset and even anger – Brexit simply didn’t have the emotional and political-psychological charge in the EU that it had in Britain. For sure, it was a matter of deep concern, perhaps most especially in Ireland, and De Rynck explains at several points how important it was to the EU to maintain solidarity with Dublin, contrary to UK beliefs that it would be “thrown under a bus” (p. 118). But Brexit never had the political toxicity in any EU country, or within the EU collectively, that it had in the UK.
The idea that the EU would be divided, including the idea that it would sacrifice Ireland’s interests, is one of numerous examples that permeate the book of how the UK never really understood or cared sufficiently about EU perspectives on Brexit. That doesn’t just apply to Brexiters, but remainers, too. De Rynck points out a number of fallacies, including that of those “remainers who thought Barnier was on their side” (p.2). However, the more consequential fallacies were those taken over from Brexiters by the UK government, because these significantly inflected the negotiations.
These fallacies, which re-appear over-and-over again in various forms in the book, include all the different versions of ‘cherry-picking’. It is instructive to have it confirmed that, as many have speculated, Theresa May did indeed initially approach Brexit as she had done her negotiations within the EU as Home Secretary, which was to “first opt-out of all membership obligations and [then] back in to those elements in the UK’s interest” (p.12). But that was just an instance of the wider inability of the UK government to understand the difference between negotiating as, effectively, a third country (or a third country in waiting) rather than as a member. That also explains what De Rynck calls the fallacy of the belief that ‘the EU always budges at the last minute’, as if Brexit were like a summit of member states.
Indeed, although his tone is scrupulously polite throughout, it is impossible to read De Rynck’s book without detecting a degree of bemusement at how UK diplomacy became so crass following Brexit, especially in the automatic, and in his assessment counter-productive, adoption of an adversarial approach to the negotiations, and the persistent belief that threats of ‘no deal’ (whether over the Withdrawal Agreement or the Trade and Cooperation Agreement) would produce meaningful concessions from the EU. As he pithily puts it, “the UK government played a game of chicken, by itself” (p. 247). Many of us in the UK made similar observations, but it is interesting to learn that this was, indeed, how it appeared to the EU negotiators.
Interesting, though, is perhaps too weak a word. It is also, at least for a British reader, embarrassing or worse to see just how unrealistic, if not downright ignorant, the UK government’s conduct was. Again, De Rynck is diplomatic about this, but reading between the lines, David Frost comes out particularly badly. For example, following Frost’s new threat “to walk away” from the talks in September 2020, he coolly writes that “Barnier debriefed his officials that the UK’s negotiator barely seemed to believe his own threat” (p231).
There is also an implication, for example in his discussion of the photo taken at the start of the Article 50 negotiations of David Davis, with no papers, grinning across the table at the Barnier team with their bulging files, that De Rynck felt a degree of perhaps professional sympathy with the UK civil servants. As he notes, “in the UK, the political bickering deprived the civil service of a direction to use its knowledge productively. Preparatory work by a civil service cannot make up for political indecisiveness” (p.40).
However, ultimately, even greater political decisiveness from the UK could not have compensated for the lack of realism of its demands in the face of the power asymmetry of the negotiating partners, which is effectively the story of the book. Although pro-Brexit readers probably won’t like it much, it will be hard for them to disagree with its central contention that the outcome for the EU was “close to the best-case scenario imagined in October 2016” (p. 245), if only because they, themselves, so frequently bemoan that they have not had ‘the Brexit we were promised’.
Final thoughts
That outcome is hardly surprising. There is a quote, mentioned almost in passing by Russell & James, from a Conservative MP saying that “right up until the indicative votes themselves [in 2019], a very large number of my colleagues had actually no idea at all what the Single Market or the Customs Union was [sic]” (p. 241). That is all too believable and yet also astounding, all the more so given that some of those same MPs were insisting that leave voters had ‘known exactly what they were voting for’ in 2016.
It is also hardly surprising that my reading of both these books reflects the interpretation in my own book about Brexit (Grey, 2021), although I should make it clear that Russell & James’ book is far more detailed, and far more authoritative, on the parliamentary events than mine, and that I barely touch on the EU negotiating stance at all, and certainly not with any of the knowledge of De Rynck. Overall, from my perspective, Russell & James demonstrate that the referendum anointed as ‘the will of the people’ a series of promises that could never be delivered by parliament nor, as De Rynck shows, by the negotiations with the EU.
That was because the promises were contradictory, made on the basis of ignorance, if not downright lies, and could never be turned into reality. These two excellent books illuminate much of how and why this was so. No doubt we will see many more books about Brexit in the years to come that do the same. But perhaps the one we should wait and hope for will be written by one of the leading Brexiters, finally acknowledging these truths.
References
Barnier, Michel (2022). My Secret Brexit Diary. A Glorious Illusion. Cambridge: Polity (English translation).
Grey, Chris (2021). Brexit Unfolded. How No One Got What They Wanted (and Why They Were Never Going to). London: Biteback Publishing.
O’Rourke, Kevin (2018). A Short History of Brexit. From Brentry to Backstop. London: Pelican.
That outcome is hardly surprising. There is a quote, mentioned almost in passing by Russell & James, from a Conservative MP saying that “right up until the indicative votes themselves [in 2019], a very large number of my colleagues had actually no idea at all what the Single Market or the Customs Union was [sic]” (p. 241). That is all too believable and yet also astounding, all the more so given that some of those same MPs were insisting that leave voters had ‘known exactly what they were voting for’ in 2016.
It is also hardly surprising that my reading of both these books reflects the interpretation in my own book about Brexit (Grey, 2021), although I should make it clear that Russell & James’ book is far more detailed, and far more authoritative, on the parliamentary events than mine, and that I barely touch on the EU negotiating stance at all, and certainly not with any of the knowledge of De Rynck. Overall, from my perspective, Russell & James demonstrate that the referendum anointed as ‘the will of the people’ a series of promises that could never be delivered by parliament nor, as De Rynck shows, by the negotiations with the EU.
That was because the promises were contradictory, made on the basis of ignorance, if not downright lies, and could never be turned into reality. These two excellent books illuminate much of how and why this was so. No doubt we will see many more books about Brexit in the years to come that do the same. But perhaps the one we should wait and hope for will be written by one of the leading Brexiters, finally acknowledging these truths.
References
Barnier, Michel (2022). My Secret Brexit Diary. A Glorious Illusion. Cambridge: Polity (English translation).
Grey, Chris (2021). Brexit Unfolded. How No One Got What They Wanted (and Why They Were Never Going to). London: Biteback Publishing.
O’Rourke, Kevin (2018). A Short History of Brexit. From Brentry to Backstop. London: Pelican.
Friday, 11 February 2022
The tangled web
“Oh what a tangled web we weave, when first we practise to deceive” Sir Walter Scott
In an article this week the Guardian columnist Nesrine Malik neatly skewered the present political situation in the UK. Referring to Brexit amongst other things, she wrote that “an entire government has been built on fantasy and false promises” and made the crucial point “if your product is a con, you need a conman”.
It will be become more important, not less, to remember this if it turns out that we are seeing the end days of Boris Johnson’s premiership, for despite their close associations Brexit is not Johnson and Johnson isn’t Brexit. It’s true that Johnson has been complicit in creating the catastrophic mess that Brexit has become and told all manner of lies about it, as he has about so many other things. But the mess and the lies were inherent to Brexit. Brexit was the con, and Johnson wasn’t even the only conman.
It’s also important to understand what it means to say that the mess and lies were inherent to Brexit. The point is not simply that lies were told in pursuit of getting people to vote for it, or to defend the manner in which it was executed. That is true, but may not be so very different to other policies undertaken by many governments when, for example, statistics are manipulated in misleading ways or deceptive rhetoric is deployed. It might even be said that the remain campaign engaged in some of that. What’s different about Brexit is that it wasn’t just sold with lies, it actually consisted of lies.
This is the reason why it is not only justifiable but inevitable that, even as years go by, there continues to be outrage about what has been done, an outrage forcefully articulated by political commentator Jonathan Lis last week: “our withdrawal from the EU licensed a specific form of corruption: lying to people’s faces about things they could see before their eyes”. Continued outrage is justifiable because of the sheer scale of the offence, and it’s inevitable because now and for many years to come the consequences of the lies told are with us. More than that, the lies keep being re-told and added to – yes, by Johnson, but not just by Johnson: consider the numerous examples provided by Jacob Rees-Mogg in the remainder of this post. That is why it has proved impossible to ‘move on’ from Brexit.
The Northern Ireland Protocol lies
Nowhere is that more obvious than in relation to the Northern Ireland Protocol (NIP). The immediate crisis that developed last week when the DUP tried to halt Sanitary and Phyto-sanitary (SPS) checks on the GB-NI border has abated somewhat, because of the court ruling which temporarily blocked that attempt pending another hearing next month, but the situation Is far from resolved. Meanwhile, the UK-EU negotiations continue as, it’s worth recalling, they have in one form or another for over a year now, under first Michael Gove, then David Frost and now Liz Truss. So do the UK threats to invoke Article 16, which go back to January 2021, just days after the NIP became operational, and were repeated this week by Boris Johnson during Prime Minister’s Questions.
RTE’s Europe Editor Tony Connelly produced an excellent account of the background to last week’s events, and what runs through it is the UK government’s dishonesty about what it agreed to in the NIP and its dishonesty in not implementing it. All of this ultimately derives from the foundational dishonesty of the Brexiters that their project created no need of any border at all (something repeated by Rees-Mogg in Parliament this week). Then, along the way, there was dishonesty about the EU’s short-lived plan to suspend vaccine exports, about the unilateral suspension of grace periods, about what Article 16 means, and about many other things which I’ve summarized elsewhere. The latest dishonesty would seem to be that by unilaterally axing the agreed checks, the NIP can be got rid of, or substantially ignored, without recourse to the Article 16 process.
Lies piled on lies
To emphasise, the dynamic here is twofold: lies repeated and lies added. As a source quoted in Connelly’s report says of the current events “We’re basically back to the trilemma of 2017”. Yet things do change in the repetition and in the new additions for, as the source goes on, “except now it’s worse, because at that time there was more trust that the UK government was actually trying to do something in the interests of Northern Ireland. Now you're dealing with the people who screwed Northern Ireland over and over again, starting with the referendum, starting with Brexit".
One of the consequences of becoming so mired in lies is that it is almost impossible to change course. Like a mendacious child or a cheating spouse, once the first lie is told it leads to the second and the third and then to a doubling-down on the first. Perhaps, early on, there could be a moment to come clean and start afresh, but at some point that becomes impossible. You are living the lie. Perhaps, even, it no longer seems to be a lie any more, and the lie is living you. I think that something like this has happened to at least some Brexiters.
At all events, because the NIP has become so shot through with lies, it has become all but impossible to take the obvious step, which would solve many of the current disputes, of taking up the EU’s offer of an SPS alignment agreement which was made at least as early as July 2021. This would get rid of most of the checks to which the government and the DUP object, has the support of farmers and others including those in Northern Ireland, and at one time was actually advocated by Edwin Poots and the DUP (£).
The sovereignty lies
It's conceivable that Truss will now take, or try to take, this step. But here another feature of how Brexit consists of lies comes into play. Neither the NIP nor any other aspect of Brexit exists in isolation from others. Hence, along with the lies about the NIP, the barrier to SPS alignment is the many lies (or, at best, misunderstandings) about ‘sovereignty’. On this account, to agree to ‘dynamic alignment’ would be to concede sovereignty to the EU and, thus, be a betrayal of Brexit. Again there is a foundational lie, and then a series of additions or permutations.
The foundational lie is that EU membership entailed a loss of sovereignty, something discredited by, amongst other things, the very first Brexit White Paper in February 2017 which stated that “Parliament has remained sovereign throughout our membership of the EU” (paragraph 2.1). Then, like mould spores, the lies about sovereignty spread. It comes to mean that any role for the ECJ is a denial of sovereignty. It leads to false claims about how sovereignty enabled the early approval of vaccines (repeated by Rees-Mogg this week) and many of the other supposed benefits of Brexit. It takes strange and convoluted forms. In relation to SPS alignment these include that this would preclude a trade deal with the US when, apart from the fact that no such deal is in prospect, that implies that setting SPS regulations to suit the US would be fine but doing so to suit the EU would violate sovereignty.
The ’nothing should change’ lie
Even more bizarre is the idea – voiced by former Northern Ireland Secretary Theresa Villiers in an interview on Radio 4 last week (starts 40.55) - that the EU should just accept that UK products meet SPS standards because, as yet, our rules haven’t greatly diverged. This is a version of the much older, deeper, lie that current regulatory harmonization would yield an easy and comprehensive trade deal which would be virtually indistinguishable from trading as an EU member. That was the basis of Liam Fox’s “easiest deal in history” claim, which is rightly much-mocked but is rarely examined for the flaws in its underlying reasoning. Those flaws made it irrelevant in the context of the UK wanting to have the right to diverge, just as Villiers suggestion is irrelevant whilst the UK refuses dynamic alignment.
All this in turn is a version of the even deeper, most intangible, strangest and yet perhaps most pervasive of Brexit lies. That, somehow, the UK could have Brexit and yet not be treated like a third country and, from that, the lie that if the UK was treated as a third country it would be ‘punishment’. This was again in evidence in the Villiers interview when she bemoaned the EU treating the UK as it does other non-members, and in this way being unreasonable. It’s also the basis of the lie – also told by Villiers – that Brexit had no implications for the Irish border.
In this way, the sovereignty lies intersect not just with those about the NIP but with those about trade and regulation. In relation to trade, apart from the point just mentioned, the foundational lie was the repeated referendum claims that “there is a free trade zone that stretches from Iceland to the Russian border, and we will still be part of it”. Yet the only realistic meaning of this – that, like Iceland, the UK would be in the single market – was denounced as a betrayal of Brexit as it would not restore sovereignty (e.g. over freedom of movement of people, but over regulation more generally). From this, new lies flowed, such as Johnson’s false claim that his trade deal meant there would be no non-tariff barriers to UK-EU trade, and all the subsequent attempts to downplay damage to trade as ‘teething problems’.
The ‘red tape’ lies
On regulation, the sovereignty lies intersected with the lie that Brexit would get rid of bureaucratic red tape, when the opposite was always going to be the case and has been demonstrated in the last year, as shown in this week’s devastating report from the Public Accounts Committee. It leads, as discussed in last week’s post, to all the current attempts to create ‘independent’ regulatory systems, even though in general these lead to more ‘red tape’.
A new example this week is the suggestion that the UK could “capitalise on our regulatory freedoms” by not implementing new EU car safety regulations – regulations the UK contributed to developing whilst it was a member – even though they would reduce deaths and injuries. Like many of the other deregulatory proposals, it probably won’t happen as it is so patently foolish and because of the fissures within the Brexit coalition, although with Rees-Mogg now appointed Brexit Opportunities Minister (sic) who can say?
Notably, Rees-Mogg’s first act was to ask Sun readers to provide examples of ‘petty EU regulations’ they would like abolished. It was a tawdry piece of populism, ludicrously invoking Lord Kitchener, presumably intended to suggest that this is ‘the People’s Brexit’. Actually, Rees-Mogg is likely to find that ‘the people’ are in practice rather attached to regulation, especially where it stops them being killed. For it is increasingly obvious that the de-regulation (or, more often, as per last week’s post, re-regulation) enabled by Brexit is a solution in search of a problem, rather than a response to any actual problem. Supposedly, just because it would use ‘our Brexit freedoms’ it must be ‘a good thing’.
This reflects the absolutely central flaw in the sovereignty lie, which is that it treats national sovereignty as an abstract notion of unimpeded freedom rather than as a practical tool for doing things with freedom. That is why Brexiters are incapable of seeing that the choice to be a member of the EU doesn’t take away sovereignty but is one of the things a country can do with its sovereignty. Brexit is another such thing that can be done with sovereignty – but it doesn’t make us ‘more’ sovereign, it just means we exercise sovereignty in a different and less effective way. The issue is not, therefore, sovereignty in the abstract, as a ‘good thing’ whatever the consequences (as some Brexiters would now have us believe), but whether the uses made of it have good outcomes (which is the way that, by and large, Brexit was sold to leave voters).
Again, once the basic lies have been told and believed it lodges and then gives rise to new lies. An example this week is the proposal from the Global Britain Commission that the UK could have “a massive post-Brexit windfall” by increasing exports per capita to the same level as Germany. It seems to have escaped the Commission’s attention that Germany has achieved this level of exports without leaving the EU, and so the idea of it being a windfall of Brexit is a peculiar one. It’s just the same old lie about the value of having an ‘independent trade policy’, dressed up in the new – and stranger – clothes that Germany provides the comparator.
The promises betrayed
Whilst a lot of these lies were inherent to Brexit, and were never possible to deliver even in theory, other kinds of lie are about promises that might have been delivered in theory but in practice turned out have been false. The obvious example here is the claim that the centrality of parliamentary democracy would be re-asserted (made again this week in Rees-Mogg’s execrable Sun article).
In fact, we’ve seen the government having to be forced by the courts to hold the Article 50 vote and by backbench rebels to hold the Meaningful Votes, an illegal prorogation of parliament, and a massive grab of Executive power through the use of ‘Henry VIII powers’ which looks set to continue with the forthcoming “Brexit Freedoms Bill”. In a similar way, Brexit has seen erosion of the powers of the devolved institutions. Moreover, the promise that Brexit would mean more parliamentary scrutiny of trade deals and other international agreements than was afforded to the UK as an EU member has not transpired and seems unlikely to.
One reason why such promises have not been kept roots back to the way the Brexit process unfolded under Theresa May (showing, again, that Johnson isn’t the only cause of the present situation) and the wider public discourse which obtained at that time. For she and others consistently represented parliament as being subordinate to and subversive of “the will of the people”.
This morphed into the idea, which Johnson continued and developed, of the government as a pure distillation of the people’s will, and parliamentary democracy as its usurper, in direct contradiction to the earlier message about Brexit and parliament. In this, and many other ways, the lies and dishonesty of Brexit have morphed into the much wider ones of the culture war and of the entire political landscape. Brexit, as Lis observes, was the “original sin” from which the rest flowed.
The multi-Mobius serpo-viral Brexit gaslighting device TM
In the past, I’ve used the metaphor of the Mobius strip to capture the way that Brexit events keep recurring as the same old lies and fantasies keep encountering the same old realities. And that does capture some aspects, such as the constant return to the Irish border trilemma. No answer can be found because no answer exists, so the lies just keep taking us back to the same place. But, as suggested in this post, a better image would be a more complex one of numerous such strips, intertwined and writhing around like snakes, and reproducing and mutating like viruses.
True believers in Brexit may, as speculated earlier, have come to believe all the lies to be true. The even bigger problem is that many politicians who know they are lies, especially if they are in the Conservative or Labour parties, pretend not know this. Admittedly it’s not always easy to tell the difference. For example, does Dover MP Nathalie Elphicke really believe, as she said in Parliament this week in a version of the ‘nothing should change’ lie, that the now endemic lorry queues in her constituency are “not because of Brexit but because of Brussels bureaucracy”? Who knows, but there are certainly many MPs, probably including some of those who cheered her, who know such things are idiotic nonsense but don’t speak out.
That arises from fear of their own parliamentary and constituency parties, of the media and of sections of the electorate, but it is horribly dangerous and corrosive. Dangerous because it means that nothing truthful, and therefore nothing practical, can be done about Brexit. Corrosive because it has spawned a wider dishonesty, as argued forcefully by former Prime Minister Sir John Major in a speech yesterday. Johnson may be the most consummate liar, but his demise will not end that dishonesty.
That is why, referring again to Jonathan Lis’s recent article, we must not give up on talking about Brexit. He is surely right that “the Brexit specialists may be exhausted”. I can certainly relate to that. He’s also right that “everything there is to say on Brexit has been said many times”. I can relate to that, too. And the reason it is so is precisely because of the endless repetitions of old lies and the new ones they spawn. If we stop pointing them out, they easily become ignored or forgotten.
More than that, the weaving together of strands of lies in the way I’ve described here is what enables Brexiters to gaslight the general public. It just becomes totally exhausting and confusing to disentangle the long chain of events that lies behind, say, the ongoing NIP rows and crises. It can be easier, even for the well-intentioned and well-informed, to become disorientated to the extent of wondering if the Brexiters may have a point. However, even if that happens – no, especially if that happens – it doesn’t solve any of the problems all the lies have created, it just takes away any prospect of them being solved.
Of course there is a way to escape the tangled web of lies that Brexit and Brexiters have woven. It is for all those who know them to be lies to start telling the truth, and for all those who tell the lies to be exposed.
Many thanks to those who completed the survey at the end of last week’s post (now closed, though if you are part-way through completing it you will still be able to submit your response when ready). As a result, I can say that, certainly for now, I will not be migrating this blog to Substack or any other platform, and I will not be charging for access. For those interested, I’ve written a short discussion of the survey results.
It will be become more important, not less, to remember this if it turns out that we are seeing the end days of Boris Johnson’s premiership, for despite their close associations Brexit is not Johnson and Johnson isn’t Brexit. It’s true that Johnson has been complicit in creating the catastrophic mess that Brexit has become and told all manner of lies about it, as he has about so many other things. But the mess and the lies were inherent to Brexit. Brexit was the con, and Johnson wasn’t even the only conman.
It’s also important to understand what it means to say that the mess and lies were inherent to Brexit. The point is not simply that lies were told in pursuit of getting people to vote for it, or to defend the manner in which it was executed. That is true, but may not be so very different to other policies undertaken by many governments when, for example, statistics are manipulated in misleading ways or deceptive rhetoric is deployed. It might even be said that the remain campaign engaged in some of that. What’s different about Brexit is that it wasn’t just sold with lies, it actually consisted of lies.
This is the reason why it is not only justifiable but inevitable that, even as years go by, there continues to be outrage about what has been done, an outrage forcefully articulated by political commentator Jonathan Lis last week: “our withdrawal from the EU licensed a specific form of corruption: lying to people’s faces about things they could see before their eyes”. Continued outrage is justifiable because of the sheer scale of the offence, and it’s inevitable because now and for many years to come the consequences of the lies told are with us. More than that, the lies keep being re-told and added to – yes, by Johnson, but not just by Johnson: consider the numerous examples provided by Jacob Rees-Mogg in the remainder of this post. That is why it has proved impossible to ‘move on’ from Brexit.
The Northern Ireland Protocol lies
Nowhere is that more obvious than in relation to the Northern Ireland Protocol (NIP). The immediate crisis that developed last week when the DUP tried to halt Sanitary and Phyto-sanitary (SPS) checks on the GB-NI border has abated somewhat, because of the court ruling which temporarily blocked that attempt pending another hearing next month, but the situation Is far from resolved. Meanwhile, the UK-EU negotiations continue as, it’s worth recalling, they have in one form or another for over a year now, under first Michael Gove, then David Frost and now Liz Truss. So do the UK threats to invoke Article 16, which go back to January 2021, just days after the NIP became operational, and were repeated this week by Boris Johnson during Prime Minister’s Questions.
RTE’s Europe Editor Tony Connelly produced an excellent account of the background to last week’s events, and what runs through it is the UK government’s dishonesty about what it agreed to in the NIP and its dishonesty in not implementing it. All of this ultimately derives from the foundational dishonesty of the Brexiters that their project created no need of any border at all (something repeated by Rees-Mogg in Parliament this week). Then, along the way, there was dishonesty about the EU’s short-lived plan to suspend vaccine exports, about the unilateral suspension of grace periods, about what Article 16 means, and about many other things which I’ve summarized elsewhere. The latest dishonesty would seem to be that by unilaterally axing the agreed checks, the NIP can be got rid of, or substantially ignored, without recourse to the Article 16 process.
Lies piled on lies
To emphasise, the dynamic here is twofold: lies repeated and lies added. As a source quoted in Connelly’s report says of the current events “We’re basically back to the trilemma of 2017”. Yet things do change in the repetition and in the new additions for, as the source goes on, “except now it’s worse, because at that time there was more trust that the UK government was actually trying to do something in the interests of Northern Ireland. Now you're dealing with the people who screwed Northern Ireland over and over again, starting with the referendum, starting with Brexit".
One of the consequences of becoming so mired in lies is that it is almost impossible to change course. Like a mendacious child or a cheating spouse, once the first lie is told it leads to the second and the third and then to a doubling-down on the first. Perhaps, early on, there could be a moment to come clean and start afresh, but at some point that becomes impossible. You are living the lie. Perhaps, even, it no longer seems to be a lie any more, and the lie is living you. I think that something like this has happened to at least some Brexiters.
At all events, because the NIP has become so shot through with lies, it has become all but impossible to take the obvious step, which would solve many of the current disputes, of taking up the EU’s offer of an SPS alignment agreement which was made at least as early as July 2021. This would get rid of most of the checks to which the government and the DUP object, has the support of farmers and others including those in Northern Ireland, and at one time was actually advocated by Edwin Poots and the DUP (£).
The sovereignty lies
It's conceivable that Truss will now take, or try to take, this step. But here another feature of how Brexit consists of lies comes into play. Neither the NIP nor any other aspect of Brexit exists in isolation from others. Hence, along with the lies about the NIP, the barrier to SPS alignment is the many lies (or, at best, misunderstandings) about ‘sovereignty’. On this account, to agree to ‘dynamic alignment’ would be to concede sovereignty to the EU and, thus, be a betrayal of Brexit. Again there is a foundational lie, and then a series of additions or permutations.
The foundational lie is that EU membership entailed a loss of sovereignty, something discredited by, amongst other things, the very first Brexit White Paper in February 2017 which stated that “Parliament has remained sovereign throughout our membership of the EU” (paragraph 2.1). Then, like mould spores, the lies about sovereignty spread. It comes to mean that any role for the ECJ is a denial of sovereignty. It leads to false claims about how sovereignty enabled the early approval of vaccines (repeated by Rees-Mogg this week) and many of the other supposed benefits of Brexit. It takes strange and convoluted forms. In relation to SPS alignment these include that this would preclude a trade deal with the US when, apart from the fact that no such deal is in prospect, that implies that setting SPS regulations to suit the US would be fine but doing so to suit the EU would violate sovereignty.
The ’nothing should change’ lie
Even more bizarre is the idea – voiced by former Northern Ireland Secretary Theresa Villiers in an interview on Radio 4 last week (starts 40.55) - that the EU should just accept that UK products meet SPS standards because, as yet, our rules haven’t greatly diverged. This is a version of the much older, deeper, lie that current regulatory harmonization would yield an easy and comprehensive trade deal which would be virtually indistinguishable from trading as an EU member. That was the basis of Liam Fox’s “easiest deal in history” claim, which is rightly much-mocked but is rarely examined for the flaws in its underlying reasoning. Those flaws made it irrelevant in the context of the UK wanting to have the right to diverge, just as Villiers suggestion is irrelevant whilst the UK refuses dynamic alignment.
All this in turn is a version of the even deeper, most intangible, strangest and yet perhaps most pervasive of Brexit lies. That, somehow, the UK could have Brexit and yet not be treated like a third country and, from that, the lie that if the UK was treated as a third country it would be ‘punishment’. This was again in evidence in the Villiers interview when she bemoaned the EU treating the UK as it does other non-members, and in this way being unreasonable. It’s also the basis of the lie – also told by Villiers – that Brexit had no implications for the Irish border.
In this way, the sovereignty lies intersect not just with those about the NIP but with those about trade and regulation. In relation to trade, apart from the point just mentioned, the foundational lie was the repeated referendum claims that “there is a free trade zone that stretches from Iceland to the Russian border, and we will still be part of it”. Yet the only realistic meaning of this – that, like Iceland, the UK would be in the single market – was denounced as a betrayal of Brexit as it would not restore sovereignty (e.g. over freedom of movement of people, but over regulation more generally). From this, new lies flowed, such as Johnson’s false claim that his trade deal meant there would be no non-tariff barriers to UK-EU trade, and all the subsequent attempts to downplay damage to trade as ‘teething problems’.
The ‘red tape’ lies
On regulation, the sovereignty lies intersected with the lie that Brexit would get rid of bureaucratic red tape, when the opposite was always going to be the case and has been demonstrated in the last year, as shown in this week’s devastating report from the Public Accounts Committee. It leads, as discussed in last week’s post, to all the current attempts to create ‘independent’ regulatory systems, even though in general these lead to more ‘red tape’.
A new example this week is the suggestion that the UK could “capitalise on our regulatory freedoms” by not implementing new EU car safety regulations – regulations the UK contributed to developing whilst it was a member – even though they would reduce deaths and injuries. Like many of the other deregulatory proposals, it probably won’t happen as it is so patently foolish and because of the fissures within the Brexit coalition, although with Rees-Mogg now appointed Brexit Opportunities Minister (sic) who can say?
Notably, Rees-Mogg’s first act was to ask Sun readers to provide examples of ‘petty EU regulations’ they would like abolished. It was a tawdry piece of populism, ludicrously invoking Lord Kitchener, presumably intended to suggest that this is ‘the People’s Brexit’. Actually, Rees-Mogg is likely to find that ‘the people’ are in practice rather attached to regulation, especially where it stops them being killed. For it is increasingly obvious that the de-regulation (or, more often, as per last week’s post, re-regulation) enabled by Brexit is a solution in search of a problem, rather than a response to any actual problem. Supposedly, just because it would use ‘our Brexit freedoms’ it must be ‘a good thing’.
This reflects the absolutely central flaw in the sovereignty lie, which is that it treats national sovereignty as an abstract notion of unimpeded freedom rather than as a practical tool for doing things with freedom. That is why Brexiters are incapable of seeing that the choice to be a member of the EU doesn’t take away sovereignty but is one of the things a country can do with its sovereignty. Brexit is another such thing that can be done with sovereignty – but it doesn’t make us ‘more’ sovereign, it just means we exercise sovereignty in a different and less effective way. The issue is not, therefore, sovereignty in the abstract, as a ‘good thing’ whatever the consequences (as some Brexiters would now have us believe), but whether the uses made of it have good outcomes (which is the way that, by and large, Brexit was sold to leave voters).
Again, once the basic lies have been told and believed it lodges and then gives rise to new lies. An example this week is the proposal from the Global Britain Commission that the UK could have “a massive post-Brexit windfall” by increasing exports per capita to the same level as Germany. It seems to have escaped the Commission’s attention that Germany has achieved this level of exports without leaving the EU, and so the idea of it being a windfall of Brexit is a peculiar one. It’s just the same old lie about the value of having an ‘independent trade policy’, dressed up in the new – and stranger – clothes that Germany provides the comparator.
The promises betrayed
Whilst a lot of these lies were inherent to Brexit, and were never possible to deliver even in theory, other kinds of lie are about promises that might have been delivered in theory but in practice turned out have been false. The obvious example here is the claim that the centrality of parliamentary democracy would be re-asserted (made again this week in Rees-Mogg’s execrable Sun article).
In fact, we’ve seen the government having to be forced by the courts to hold the Article 50 vote and by backbench rebels to hold the Meaningful Votes, an illegal prorogation of parliament, and a massive grab of Executive power through the use of ‘Henry VIII powers’ which looks set to continue with the forthcoming “Brexit Freedoms Bill”. In a similar way, Brexit has seen erosion of the powers of the devolved institutions. Moreover, the promise that Brexit would mean more parliamentary scrutiny of trade deals and other international agreements than was afforded to the UK as an EU member has not transpired and seems unlikely to.
One reason why such promises have not been kept roots back to the way the Brexit process unfolded under Theresa May (showing, again, that Johnson isn’t the only cause of the present situation) and the wider public discourse which obtained at that time. For she and others consistently represented parliament as being subordinate to and subversive of “the will of the people”.
This morphed into the idea, which Johnson continued and developed, of the government as a pure distillation of the people’s will, and parliamentary democracy as its usurper, in direct contradiction to the earlier message about Brexit and parliament. In this, and many other ways, the lies and dishonesty of Brexit have morphed into the much wider ones of the culture war and of the entire political landscape. Brexit, as Lis observes, was the “original sin” from which the rest flowed.
The multi-Mobius serpo-viral Brexit gaslighting device TM
In the past, I’ve used the metaphor of the Mobius strip to capture the way that Brexit events keep recurring as the same old lies and fantasies keep encountering the same old realities. And that does capture some aspects, such as the constant return to the Irish border trilemma. No answer can be found because no answer exists, so the lies just keep taking us back to the same place. But, as suggested in this post, a better image would be a more complex one of numerous such strips, intertwined and writhing around like snakes, and reproducing and mutating like viruses.
True believers in Brexit may, as speculated earlier, have come to believe all the lies to be true. The even bigger problem is that many politicians who know they are lies, especially if they are in the Conservative or Labour parties, pretend not know this. Admittedly it’s not always easy to tell the difference. For example, does Dover MP Nathalie Elphicke really believe, as she said in Parliament this week in a version of the ‘nothing should change’ lie, that the now endemic lorry queues in her constituency are “not because of Brexit but because of Brussels bureaucracy”? Who knows, but there are certainly many MPs, probably including some of those who cheered her, who know such things are idiotic nonsense but don’t speak out.
That arises from fear of their own parliamentary and constituency parties, of the media and of sections of the electorate, but it is horribly dangerous and corrosive. Dangerous because it means that nothing truthful, and therefore nothing practical, can be done about Brexit. Corrosive because it has spawned a wider dishonesty, as argued forcefully by former Prime Minister Sir John Major in a speech yesterday. Johnson may be the most consummate liar, but his demise will not end that dishonesty.
That is why, referring again to Jonathan Lis’s recent article, we must not give up on talking about Brexit. He is surely right that “the Brexit specialists may be exhausted”. I can certainly relate to that. He’s also right that “everything there is to say on Brexit has been said many times”. I can relate to that, too. And the reason it is so is precisely because of the endless repetitions of old lies and the new ones they spawn. If we stop pointing them out, they easily become ignored or forgotten.
More than that, the weaving together of strands of lies in the way I’ve described here is what enables Brexiters to gaslight the general public. It just becomes totally exhausting and confusing to disentangle the long chain of events that lies behind, say, the ongoing NIP rows and crises. It can be easier, even for the well-intentioned and well-informed, to become disorientated to the extent of wondering if the Brexiters may have a point. However, even if that happens – no, especially if that happens – it doesn’t solve any of the problems all the lies have created, it just takes away any prospect of them being solved.
Of course there is a way to escape the tangled web of lies that Brexit and Brexiters have woven. It is for all those who know them to be lies to start telling the truth, and for all those who tell the lies to be exposed.
Many thanks to those who completed the survey at the end of last week’s post (now closed, though if you are part-way through completing it you will still be able to submit your response when ready). As a result, I can say that, certainly for now, I will not be migrating this blog to Substack or any other platform, and I will not be charging for access. For those interested, I’ve written a short discussion of the survey results.
Friday, 14 May 2021
Parallel universes
To anyone who has followed, even cursorily, reports about the effects of Brexit since the vote to leave, and especially since the end of the transition period, or even just in the last week or so, this week’s Queen’s Speech, with its disconnected rag-bag of policies, will suggest that the government inhabits a strangely parallel universe.
Nothing in it began to address the realities of the damage that Brexit has already caused, such as that shown, misleading claims by David Frost to the contrary, by the latest UK-EU goods trade figures which suggest that by March 2021 trade was 11% lower than it would have been without Brexit, on top of a 10% fall between the referendum and the end of the transition period. Moreover, despite Panglossian claims from the usual suspects (£) about how companies are now adapting to the new trade arrangements, what that ignores is that where adaptation does not mean stopping trading altogether it means incorporating new costs, with impacts on prices and competitiveness. As ever it is amusing to see erstwhile cheerleaders for free trade tying themselves in knots to explain that introducing barriers to trade doesn’t suppress it. And of course all this is before the UK has started introducing import controls on goods coming from the EU.
Nothing, either, on the emergent damage to the services sector (£), the looming threat of supply disruptions due to shortages of truck drivers(£), the scandal in the making in the settled status scheme for EU citizens or the actual scandal about detention of EU nationals at the UK border. There are also now warning noises that the UK could run out of construction materials. This arises from the shift from CE to UKCA conformity assessment which has to be completed by the end of this year and, as I have been warning for a while, is a ticking time bomb in terms of business preparedness.
However, there are at least now signs that Labour is willing to start challenging the government on the effects of Brexit. Rachel Reeves, when shadowing Michael Gove, had already done so and her elevation this week to Shadow Chancellor is therefore significant. Immediately, in the Queen’s Speech debate, she has raised the problems being caused by Brexit to businesses and the damage to exports.
This matters not as a way of continuing the debate on the merits of Brexit but because it’s not possible to discuss the realities of the British economy without mentioning the effects of Brexit. To put it another way, just because there is a Brexit culture war, it doesn’t mean that the economics of Brexit should be a no-go area. Indeed were it to be so it would be one sign that the Brexiters had won the culture war.
Benefitting from Brexit (sic)
Equally, anyone still expecting Brexit to herald some exciting new world of opportunity will have been disappointed by the Queen’s Speech. It scarcely lived up to the Brexiters’ billing of this as a moment of national liberation (£) from the supposed colonial yoke of the EUSSR (also known as the Nazi EU and the neo-liberal EU, which might suggest that Brexiters’ grasp of political philosophy is a little shaky). Rather, ‘taking back control’ turns out to be something of a damp squib. For which there is a simple explanation: it was an illusion.
Thus, tucked away in a few pages (starting p.48) within the briefing notes that accompanied the speech, under the heading ‘Benefitting from Brexit’ were various all but meaningless, or simply dishonest proposals. These included: promises about unspecified better regulation for business, a reprise of the old ‘Brexit will slash red tape’ line, which will provoke a hollow laugh amongst businesses mired in the red tape Brexit has (re)created; new policies on state subsidies, procurement, and planning which to some extent consolidate what existed under the EU, and make no reference to the level playing field constraints of the Trade and Cooperation Agreement or for that matter the WTO’s procurement constraints; freeports (of course), which didn’t require Brexit and are anyway pretty pointless; a bill to recognize international professional qualifications which didn't require Brexit; an animal welfare bill which may include provisions to end live animal exports, which wouldn't have been possible without Brexit*; and the introduction of the Turing Scheme, which will be less good than the Erasmus scheme it replaces.
Pursuing the Brexit culture war
But if there was little here that required, or was a benefit of, Brexit, there was plenty more which was distinctly ‘Brexity’, in the sense of pursuing the culture war of which Brexit was the biggest battle and which Boris Johnson’s ‘Conservatives’ continue to prosecute through endless skimble-skamble raids. Thus there were long-trailed provisions to hobble judicial review, to clamp down on public protest, to bring ‘woke’ universities to heel, and to discourage voting amongst the unwashed. No doubt it was designed to appeal to the kind of ‘red wall’ Tory voters that Labour sentimentalists still persist in regarding as their ‘heartlands’. It was also (or therefore), as David Allen Green observes, “a multi-pronged attack on our liberties” growing from the ‘authoritarian populism’ expressed in Brexiter notions of the ‘will of the people’.
The first two of these measures can be seen to grow at least in part from Brexit. Resentment of the role of the judiciary via the Article 50 case and the prorogation case still smoulders. Rather more ludicrously, at least one part of the planned legislation on protests seems to derive from the way that Steve Bray’s one-man ‘stop Brexit’ demonstration so infuriated Brexiter MPs. But the wider and more sinister purpose is to remove both checks on and challenges to government power, again a hallmark of the Brexit process but now to be made a general principle.
Whilst more obviously an elite power grab than anything to do with the popular will, it is the hallmark of authoritarian populism to present the powerful as the incarnation of ‘the people’ and, thus, any checks upon the powerful as thwarting the people. This is the “grotesque political spoonerism” of populism that emerged with such force with Brexit.
The third item, on ‘free speech’ in universities, relates to the pervasive hostility to ‘liberal intellectuals’, and perhaps to (university) education itself, that characterizes Brexit and post-Brexit politics. In part, as with the proposed judicial review and protest bills, it is about trying to close down those parts of civil society that might challenge government. It also reflects the sense amongst Brexiters that universities in general are wellsprings of the social liberalism which they abjure, and in particular that the graduates produced tend to reject the politics of authoritarian populism.
This proposal is already revealing a mass of contradictions, including the possibility that the new law will protect the rights of holocaust deniers to speak on campus and yet also require universities to prevent anti-Semitism on campus. This is only one of the many problems which ensue when in the name of ‘free speech’ it is proposed to create a state directorate to oversee it. As with the free traders now justifying trade barriers, the free speech libertarians are in the contradictory position of advocating state policing of this freedom.
This contradiction flows less from intellectual confusion than from dishonesty. For the fundamental problem is that the ‘free speech warriors’ want to prevent political correctness ‘stopping us saying what we think’ whilst also putting a brake on ‘woke intellectuals’ banging on about slavery. Free speech ‘for us but not them’ isn’t quite the principled position they seem to think, and despite the preferred self-description of many such warriors being that of ‘Classical Liberal’, one can only imagine that they haven’t read much John Stuart Mill. (For more on this proposed legislation, which seems in equal measure both pernicious and silly, see Professor Steve Peers’ twitter thread).
The fourth of the authoritarian populist provisions is the plan to require photo-ID of voters. It’s ostensible purpose, to combat electoral fraud, is so paper thin that even the naked rambler could wear it on his walks without compromising his principles. There are virtually no cases of in-person electoral fraud in the UK. Its purpose is, almost flagrantly, to prevent voters from ethnic minorities and marginalised groups, who are less likely to have such ID, from voting because they don’t tend to vote Tory. Yet it is possible that this will backfire given Johnson’s new-found reliance on older voters in ‘red wall’ seats who may also be relatively less likely to have photo-ID. Either way, it is a shabby little trick.
The rot beneath the pomp
There was another way in which the Queen’s Speech bespoke of a parallel universe. On the surface, here was the pomp and ceremony of centuries of tradition in the ‘mother of all parliaments’. And media coverage was awash with the breathless commentary which, apparently, is now required of broadcasters, especially the BBC, to show that they are of the people and not the liberal metropolitan elite when covering any vaguely royal ritual (we might, perhaps, call this doctrine ‘Witchellism’).
But ‘surface’ is all it was. Like a rotten piece of fruit with its skin intact, underneath was a slimy, suppurating flesh. Not just because it announced measures that were so transparently anti-democratic but because it concealed how the Union itself is falling apart because of Brexit, most obviously as regards Scotland for reasons spelt out sharply by the eminent psephologist Professor Sir John Curtice this week.
So even as it proposed measures to ‘strengthen the union’ the Queen’s Speech left resolutely unaddressed how profoundly Brexit has weakened it. Whilst hardly a new observation, it bears saying that not only was Brexit primarily a project of the English regions, but it was pursued in a form to cause maximum distress to those parts of the UK that had not voted for it. The Brexiters were able to do it, and they called it the will of the people, but there will be a huge reckoning.
Nowhere is this more obvious than in relation to Northern Ireland where, in his hurry to ‘ditch the hated backstop’ that Theresa May had agreed, Johnson, apparently without understanding or caring, effectively segmented the UK single market. Although the British media has recently gone rather quiet about this, intensive discussions continue between the UK and the EU over the implementation of the Northern Ireland Protocol.
It is hard to be sure, but there is little obvious sign of progress. The EU has rejected UK proposals for a light-touch ‘risk-based’ approach to border checks, and David Frost is now speaking of the NIP being “unsustainable” and hinting at further unilateral breaches by the UK. It hardly needs saying that it was Frost, himself, who negotiated it and Johnson who signed it, nor that any additional breaches will be profoundly damaging to both UK-EU and UK-US relations. Meanwhile, unionist opposition to the NIP is hardening ominously and the marching season is not far off.
Johnson will meet the Irish Taoiseach, Micheal Martin, today to discuss a variety of UK-Ireland matters, and reports suggest that he will use it to try to enlist Martin’s support for the UK’s preferred ‘equivalence regime’ (see last week's post for explanation). That seems to be implied by the fact that David Frost will also attend. If so, Martin is unlikely to engage in such a discussion, since it is a UK-EU matter, and it would suggest that even after all these years the UK government still hasn’t grasped that the EU negotiates as a bloc, and in this case through the structures established by the NIP.
The culture war of attrition
This is just the most high-profile way in which Brexit continues to develop and be negotiated – other examples include the now-linked issues of fishing and financial services, with the prospects for a financial services equivalence agreement now looking remote. It is this, along with the still emerging economic realities of Brexit, which makes calls, such as those of Manchester Mayor Andy Burnham, to “draw a line under Brexit” and to “embrace it” so fatuous. For whilst it’s right to say that rejoining the EU is simply not in prospect, you can’t draw a line under, or embrace, something which is a still unfolding process. Nor, as Burnham wants, can the focus now be on the Union without recognizing what Brexit is doing to it.
As Anthony Robinson discusses in his wide-ranging Yorkshire Bylines piece this week, Brexit is neither stable, nor sustainable, nor settled. At least one reason for that, long-evident but underscored by this week’s Queen’s Speech, is that Brexit has now morphed into a much wider domestic political and cultural battle. Brexiters seemed to think that winning the referendum was enough, a view falsified by the protracted Brexit process it engendered, and that it would take us to the ‘sunny uplands’, which the Brexit process has failed to reveal.
That process is still continuing so that, rather as happened with the confident predictions that the First World War would be over by Christmas, we are now stuck in a long, gloomy and vicious culture war of attrition. In those trenches, even the dimmest, most chinless, subaltern no longer talks blithely of sunny uplands to come. Only in a parallel universe, far from the mud and rot, are those old lies still told with such high zest.
*Updated 16/05/21 to correct my original, incorrect, claim that nothing in this Bill would require Brexit. Thanks to Professor Anthony Glees for the correction.
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Nothing in it began to address the realities of the damage that Brexit has already caused, such as that shown, misleading claims by David Frost to the contrary, by the latest UK-EU goods trade figures which suggest that by March 2021 trade was 11% lower than it would have been without Brexit, on top of a 10% fall between the referendum and the end of the transition period. Moreover, despite Panglossian claims from the usual suspects (£) about how companies are now adapting to the new trade arrangements, what that ignores is that where adaptation does not mean stopping trading altogether it means incorporating new costs, with impacts on prices and competitiveness. As ever it is amusing to see erstwhile cheerleaders for free trade tying themselves in knots to explain that introducing barriers to trade doesn’t suppress it. And of course all this is before the UK has started introducing import controls on goods coming from the EU.
Nothing, either, on the emergent damage to the services sector (£), the looming threat of supply disruptions due to shortages of truck drivers(£), the scandal in the making in the settled status scheme for EU citizens or the actual scandal about detention of EU nationals at the UK border. There are also now warning noises that the UK could run out of construction materials. This arises from the shift from CE to UKCA conformity assessment which has to be completed by the end of this year and, as I have been warning for a while, is a ticking time bomb in terms of business preparedness.
However, there are at least now signs that Labour is willing to start challenging the government on the effects of Brexit. Rachel Reeves, when shadowing Michael Gove, had already done so and her elevation this week to Shadow Chancellor is therefore significant. Immediately, in the Queen’s Speech debate, she has raised the problems being caused by Brexit to businesses and the damage to exports.
This matters not as a way of continuing the debate on the merits of Brexit but because it’s not possible to discuss the realities of the British economy without mentioning the effects of Brexit. To put it another way, just because there is a Brexit culture war, it doesn’t mean that the economics of Brexit should be a no-go area. Indeed were it to be so it would be one sign that the Brexiters had won the culture war.
Benefitting from Brexit (sic)
Equally, anyone still expecting Brexit to herald some exciting new world of opportunity will have been disappointed by the Queen’s Speech. It scarcely lived up to the Brexiters’ billing of this as a moment of national liberation (£) from the supposed colonial yoke of the EUSSR (also known as the Nazi EU and the neo-liberal EU, which might suggest that Brexiters’ grasp of political philosophy is a little shaky). Rather, ‘taking back control’ turns out to be something of a damp squib. For which there is a simple explanation: it was an illusion.
Thus, tucked away in a few pages (starting p.48) within the briefing notes that accompanied the speech, under the heading ‘Benefitting from Brexit’ were various all but meaningless, or simply dishonest proposals. These included: promises about unspecified better regulation for business, a reprise of the old ‘Brexit will slash red tape’ line, which will provoke a hollow laugh amongst businesses mired in the red tape Brexit has (re)created; new policies on state subsidies, procurement, and planning which to some extent consolidate what existed under the EU, and make no reference to the level playing field constraints of the Trade and Cooperation Agreement or for that matter the WTO’s procurement constraints; freeports (of course), which didn’t require Brexit and are anyway pretty pointless; a bill to recognize international professional qualifications which didn't require Brexit; an animal welfare bill which may include provisions to end live animal exports, which wouldn't have been possible without Brexit*; and the introduction of the Turing Scheme, which will be less good than the Erasmus scheme it replaces.
Pursuing the Brexit culture war
But if there was little here that required, or was a benefit of, Brexit, there was plenty more which was distinctly ‘Brexity’, in the sense of pursuing the culture war of which Brexit was the biggest battle and which Boris Johnson’s ‘Conservatives’ continue to prosecute through endless skimble-skamble raids. Thus there were long-trailed provisions to hobble judicial review, to clamp down on public protest, to bring ‘woke’ universities to heel, and to discourage voting amongst the unwashed. No doubt it was designed to appeal to the kind of ‘red wall’ Tory voters that Labour sentimentalists still persist in regarding as their ‘heartlands’. It was also (or therefore), as David Allen Green observes, “a multi-pronged attack on our liberties” growing from the ‘authoritarian populism’ expressed in Brexiter notions of the ‘will of the people’.
The first two of these measures can be seen to grow at least in part from Brexit. Resentment of the role of the judiciary via the Article 50 case and the prorogation case still smoulders. Rather more ludicrously, at least one part of the planned legislation on protests seems to derive from the way that Steve Bray’s one-man ‘stop Brexit’ demonstration so infuriated Brexiter MPs. But the wider and more sinister purpose is to remove both checks on and challenges to government power, again a hallmark of the Brexit process but now to be made a general principle.
Whilst more obviously an elite power grab than anything to do with the popular will, it is the hallmark of authoritarian populism to present the powerful as the incarnation of ‘the people’ and, thus, any checks upon the powerful as thwarting the people. This is the “grotesque political spoonerism” of populism that emerged with such force with Brexit.
The third item, on ‘free speech’ in universities, relates to the pervasive hostility to ‘liberal intellectuals’, and perhaps to (university) education itself, that characterizes Brexit and post-Brexit politics. In part, as with the proposed judicial review and protest bills, it is about trying to close down those parts of civil society that might challenge government. It also reflects the sense amongst Brexiters that universities in general are wellsprings of the social liberalism which they abjure, and in particular that the graduates produced tend to reject the politics of authoritarian populism.
This proposal is already revealing a mass of contradictions, including the possibility that the new law will protect the rights of holocaust deniers to speak on campus and yet also require universities to prevent anti-Semitism on campus. This is only one of the many problems which ensue when in the name of ‘free speech’ it is proposed to create a state directorate to oversee it. As with the free traders now justifying trade barriers, the free speech libertarians are in the contradictory position of advocating state policing of this freedom.
This contradiction flows less from intellectual confusion than from dishonesty. For the fundamental problem is that the ‘free speech warriors’ want to prevent political correctness ‘stopping us saying what we think’ whilst also putting a brake on ‘woke intellectuals’ banging on about slavery. Free speech ‘for us but not them’ isn’t quite the principled position they seem to think, and despite the preferred self-description of many such warriors being that of ‘Classical Liberal’, one can only imagine that they haven’t read much John Stuart Mill. (For more on this proposed legislation, which seems in equal measure both pernicious and silly, see Professor Steve Peers’ twitter thread).
The fourth of the authoritarian populist provisions is the plan to require photo-ID of voters. It’s ostensible purpose, to combat electoral fraud, is so paper thin that even the naked rambler could wear it on his walks without compromising his principles. There are virtually no cases of in-person electoral fraud in the UK. Its purpose is, almost flagrantly, to prevent voters from ethnic minorities and marginalised groups, who are less likely to have such ID, from voting because they don’t tend to vote Tory. Yet it is possible that this will backfire given Johnson’s new-found reliance on older voters in ‘red wall’ seats who may also be relatively less likely to have photo-ID. Either way, it is a shabby little trick.
The rot beneath the pomp
There was another way in which the Queen’s Speech bespoke of a parallel universe. On the surface, here was the pomp and ceremony of centuries of tradition in the ‘mother of all parliaments’. And media coverage was awash with the breathless commentary which, apparently, is now required of broadcasters, especially the BBC, to show that they are of the people and not the liberal metropolitan elite when covering any vaguely royal ritual (we might, perhaps, call this doctrine ‘Witchellism’).
But ‘surface’ is all it was. Like a rotten piece of fruit with its skin intact, underneath was a slimy, suppurating flesh. Not just because it announced measures that were so transparently anti-democratic but because it concealed how the Union itself is falling apart because of Brexit, most obviously as regards Scotland for reasons spelt out sharply by the eminent psephologist Professor Sir John Curtice this week.
So even as it proposed measures to ‘strengthen the union’ the Queen’s Speech left resolutely unaddressed how profoundly Brexit has weakened it. Whilst hardly a new observation, it bears saying that not only was Brexit primarily a project of the English regions, but it was pursued in a form to cause maximum distress to those parts of the UK that had not voted for it. The Brexiters were able to do it, and they called it the will of the people, but there will be a huge reckoning.
Nowhere is this more obvious than in relation to Northern Ireland where, in his hurry to ‘ditch the hated backstop’ that Theresa May had agreed, Johnson, apparently without understanding or caring, effectively segmented the UK single market. Although the British media has recently gone rather quiet about this, intensive discussions continue between the UK and the EU over the implementation of the Northern Ireland Protocol.
It is hard to be sure, but there is little obvious sign of progress. The EU has rejected UK proposals for a light-touch ‘risk-based’ approach to border checks, and David Frost is now speaking of the NIP being “unsustainable” and hinting at further unilateral breaches by the UK. It hardly needs saying that it was Frost, himself, who negotiated it and Johnson who signed it, nor that any additional breaches will be profoundly damaging to both UK-EU and UK-US relations. Meanwhile, unionist opposition to the NIP is hardening ominously and the marching season is not far off.
Johnson will meet the Irish Taoiseach, Micheal Martin, today to discuss a variety of UK-Ireland matters, and reports suggest that he will use it to try to enlist Martin’s support for the UK’s preferred ‘equivalence regime’ (see last week's post for explanation). That seems to be implied by the fact that David Frost will also attend. If so, Martin is unlikely to engage in such a discussion, since it is a UK-EU matter, and it would suggest that even after all these years the UK government still hasn’t grasped that the EU negotiates as a bloc, and in this case through the structures established by the NIP.
The culture war of attrition
This is just the most high-profile way in which Brexit continues to develop and be negotiated – other examples include the now-linked issues of fishing and financial services, with the prospects for a financial services equivalence agreement now looking remote. It is this, along with the still emerging economic realities of Brexit, which makes calls, such as those of Manchester Mayor Andy Burnham, to “draw a line under Brexit” and to “embrace it” so fatuous. For whilst it’s right to say that rejoining the EU is simply not in prospect, you can’t draw a line under, or embrace, something which is a still unfolding process. Nor, as Burnham wants, can the focus now be on the Union without recognizing what Brexit is doing to it.
As Anthony Robinson discusses in his wide-ranging Yorkshire Bylines piece this week, Brexit is neither stable, nor sustainable, nor settled. At least one reason for that, long-evident but underscored by this week’s Queen’s Speech, is that Brexit has now morphed into a much wider domestic political and cultural battle. Brexiters seemed to think that winning the referendum was enough, a view falsified by the protracted Brexit process it engendered, and that it would take us to the ‘sunny uplands’, which the Brexit process has failed to reveal.
That process is still continuing so that, rather as happened with the confident predictions that the First World War would be over by Christmas, we are now stuck in a long, gloomy and vicious culture war of attrition. In those trenches, even the dimmest, most chinless, subaltern no longer talks blithely of sunny uplands to come. Only in a parallel universe, far from the mud and rot, are those old lies still told with such high zest.
*Updated 16/05/21 to correct my original, incorrect, claim that nothing in this Bill would require Brexit. Thanks to Professor Anthony Glees for the correction.
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Friday, 25 October 2019
Brexit in limbo
I had half-expected that today I would
be writing that, to all intents and purposes, Brexit was now a fait accompli and that if not on 31
October then very shortly thereafter Britain would no longer be a member of the
EU.
More “unforced errors”
That may still turn out to be the case. The fact that it is not so today is in large part attributable to yet another of what the influential and insightful law and policy commentator David Allen Green has aptly described as the “unforced errors” of the Brexit saga. Specifically, it has arisen because of the Government’s ludicrous and unnecessary attempt to drastically curtail the time parliament had to discuss the Withdrawal Agreement Bill (WAB), and to do so without the provision of any economic impact assessment. The proposed timescale was, as the Director of the Hansard Society, Ruth Fox – not known for hyperbole - put it “ridiculous”. Parliament thought so too, and voted against the Programme Motion that set out the timetable for the Bill.
This was just the latest of the long string of ways, some outlined in my previous post, that May’s and now Johnson’s government have treated parliament contemptuously and found, in the absence of a majority, that parliament has many ways of biting back. There was no need for it, any more than for what was quaintly described in parliament as the “jiggery-pokery” of this week’s failed attempt to hold a Meaningful Vote. By the same token, Johnson’s latest, and third, refusal to appear before the Commons Liaison Committee reeks of his dismissive attitude to parliament at the very moment he is so dependent upon it.
In the case of the WAB timetable, it was totally unnecessary: the 31 October date would (all but) certainly have been breached anyway if only to allow European Parliament ratification, the extension letter had already been sent, and there could be no doubt that a short technical extension would be agreed if the WAB had passed. If the concern was ‘wrecking amendments’ it was pointless, as such amendments could have been laid anyway. As so often, it was just macho posturing.
The bad winners of Brexit
Tactically, the attempt was, as has been shown by its failure, ill-judged. But it was also strategically ill-judged and in a way which has a wider significance than this particular episode. Suppose it had succeeded? Then, Brexit would for years be dogged by accusations of having been achieved through hole-in-the corner means, without proper parliamentary oversight. If so, that would be added to a whole strong of similar accusations that Brexit is going to face anyway, if it occurs. Everything from the dishonest manner in which the referendum campaign was fought and won, the unnecessary legal battles over parliamentary involvement, prorogation and, even, whether the PM had to obey the law all mean that any sense of victory will be sour.
If I were a Brexiter, who genuinely believed that this was a project for national liberation and national revival, I cannot imagine taking any pleasure in having achieved it through such squalid and disreputable means. It is one of many ways in which Brexiters’ graceless response to their referendum victory gives the impression that they would have been happier if they hadn’t won.
For that matter, as the WAB debate speeches this week by ERGers such as John Redwood and Owen Paterson show, the Brexit Ultras feel no joy in the deal that they have signed up to, and do not regard it as the Brexit they had really envisaged (like the apologists for every failed managerial fad and political ideology, Brexiters are always going to say that it would have been fine had it just been implemented ‘properly’). As I remarked in my previous post, the national tragedy of Brexit is that, even if it is done, the most ardent Brexiters will be as bitterly unhappy as remainers.
The WAB’s nasty surprises
Returning to the WAB itself, the impression given was that the government had something to hide in seeking to ram it through so quickly. It is no good saying, as some did, that parliament had had years to discuss every aspect of Brexit. The fact is that, after all those years, this was the first time that anyone had seen in precise, detailed, legal terms what Brexit (at this stage) meant. And on examination the legislation revealed at least four areas of controversy over and above those that were already clear from the broad outlines of Johnson’s deal (for detailed, expert, legal analysis of the Bill, see Steve Peers’ excellent blog).
First, it emerged (initially, it seemed, to the surprise of the Brexit Secretary himself) that the new arrangements for Northern Ireland (NI) would involve new customs processes (not necessarily declarations) for goods travelling both from Great Britain (GB) to NI and from NI to GB. This further underscored the reasons for the DUP objections to the deal for, indeed, it shows how transactions between the two parts of the same country are now pretty much on a par with importing and exporting goods between separate countries. There could hardly be a greater affront to unionism nor, though for mirror-image reasons, to Scottish nationalism.
This, along with the different regulatory arrangements for NI, leads to an observation, which I had not thought of or seen before in these terms, made by the finance and economics writer Frances Coppola in a tweet this week: Johnson’s deal means that after Brexit the UK will no longer be a single market. Expressed that way it is quite remarkable. There have been long debates about whether or not the UK could and should remain in the European Single Market after Brexit. Never was in envisaged, in terms, that the UK single market would be brought to an end.
The second issue to emerge was over workers’ rights protections. It was already controversial that these had been moved from the Withdrawal Agreement (WA) to the non-binding Political Declaration (PD). In the legislation, a bizarre pair of clauses has it that a minister introducing any future legislation must state that it doesn’t reduce such rights compared with EU provision or that the minister is unable to state that but wants to proceed with the legislation anyway! I suppose it is conceivable that this was a drafting error but if so, given the political charge of the issue, an extraordinary one.
Thirdly, the proposed legislation requires that future terms negotiations with the EU be constrained to the ambitions set out in the PD. This is particularly sneaky, because one argument to waverers on both the Tory and Labour sides has always been that since the PD is not legally binding (i.e. unlike the WA it would not form part of an international treaty) then there is ‘all to play for’ once the WA is ratified. The WAB would use British law to undercut that (albeit that, I suppose, a future government could legislate to change that law).
Fourthly, and perhaps most controversial of all, the WAB deprives parliament of the right to force the government to seek an extension to the Transition Period (TP) in order to prolong post-Brexit trade talks. This is enormously significant to what would happen – and very soon – after Brexit day if we get there. As discussed in my previous post, a potential new cliff-edge arises if there is no trade agreement in place by the end of the TP at end 2020 and if the UK has not asked for an extension by 1 July 2020 (more detail on the likely timetable and issues arising from it here).
No one serious thinks the trade talks will be to any degree advanced by then – especially given that whether held before or after Brexit an election will shave a couple of months off the time available – and Johnson has said that he will not apply for a TP extension. That could of course be bluster, but if not then there is the prospect that, without any parliamentary agreement, there would be a new kind of no-deal Brexit at end of 2020. (In passing, it is perhaps not sufficiently explained in the media that this would be a new kind, and not the same as the no-deal we talk about now, in that there would be a WA in place but, equally, by that point there would be no ‘revoke Article 50’ option available as a final defence against the new version of no deal).
This may be what some Brexiters actually want. Others may still nurture the fantasy that this will be ‘the easiest deal in history’ because the UK would be starting from a position of alignment with the EU. I discussed that myth a couple of years ago but this week there was a reminder of one of the reasons why it is a myth. A ‘normal’ preferential trade deal takes a long time partly because various businesses and sectors lobby to be excluded from regulatory alignment (usually for protectionist reasons). In this trade negotiation the delays will be for the mirror-image reason: lobbying to remain aligned. Businesses have already begun (£) to make the opening salvos in that process.
A General Election?
The various controversial issues just identified in the WAB, and others, may well be the subject of amendment if it emerges from its present ‘in limbo’ status (this, apparently, is the correct term for it, and it could just as well be applied to the entire Brexit situation). If so, it may yet pass, and Brexit may yet happen. However, the possibility is now intensifying that events will be delayed by a General Election and, if so, that represents possibly the last chance for Brexit to be averted.
That may sound a strange thing to say, given that Johnson himself is pushing for an election, now, weirdly, tying this giving more time to debate the WAB (not that much more, in fact). But - barring some very dramatic event - the only realistic route to remain now lies in a Labour administration – whether majority or minority – organizing another referendum (this would in turn entail yet another request to the EU for an extension).
The present parliament almost certainly isn’t going to vote, and legislate, for another referendum. On the other hand, if the WAB ever is debated by the present parliament then it is quite likely to end up passing. The Second Reading, after all, passed by 30 votes – allowing Johnson to make the wholly dishonest claim that his deal had been “passed” – and although many of those votes (it would only take 15) could peel away at Third Reading it looks plausible that it could squeak though. Even if it were heavily amended, most amendments (e.g. to seek a customs union) could easily be undone by a future government whereas, so long as it passed, then Brexit would have happened and there would be no way back. Also relevant here is that after 31 October there will be a new Speaker, who may well be less robust in defending the rights of parliament than John Bercow.
I had been planning to set out this analysis in greater detail, but the ever-acute Ian Dunt has already done so. Of course, as Dunt explains, the outcome of such an election is very difficult to predict. But to my mind the crucial point is that an election in which Brexit has not happened will see the Tory vote eaten into from both sides, by the Brexit Party and by the LibDems. Indeed, there is some recent polling evidence for this. Clearly Johnson will play his ‘people versus parliament’ card, but with Brexit not done a good chunk of the Brexit Party vote will not vote for him – enough to lose him some seats without, in all probability, gaining as many or even any at all for Farage.
Tactical errors from both parties
This gives Labour a far better chance of winning than would a post-Brexit election, with Johnson riding high against the Brexit Party as the man who had ‘got Brexit done’ (and just before it became obvious to all that this was just the start of many more months and years of Brexit dominating everything). That ought to make an early election attractive to Labour. A month ago I wrote that it was good tactics by Corbyn to keep Johnson “twisting in the wind”, and so it has proved to be, but that has all changed as a result of the Johnson deal and the writing of the extension letter. To continue to oppose an election now is bad tactics (though, for the directly opposite view of this analysis, see Hugo Dixon’s latest In Fact blog).
Implicit in all this is that Johnson is also making tactical mistakes. If my analysis is right, he would be far better off – given that the 31 October deadline is now just a dead line – bringing back the WAB with a new timetable, having a decent shot at passing it, and then a very good chance of winning an election. That, presumably, is what the current ‘offer’ is meant to achieve, but bear in mind that this is not the first time that he has sought an election and that, if he gets one now, it’s not going to be accompanied by an agreement to debate and pass the WAB first – or at least not unless Labour are completely stupid. His error is in trying to tie the two together, rather than conceding a new timetable on the WAB without preconditions.
So, indeed, I think Johnson is making a blunder. But that is not surprising since he is presumably being guided by Dominic Cummings who, it is now abundantly clear, is not the master tactician and strategist that some – himself foremost amongst them – believe. As a result, ‘Classic Dom’ has now emerged as a term to denote a supposedly clever tactic backfiring spectacularly.
In saying all this, I make no comment on the general merits of a Labour or a Conservative government, just on what each would mean for the prospects of Brexit. Solely from that perspective there are clearly many risks in an election. If it yielded a Tory majority then the WAB would surely get passed and Britain would leave the EU. Equally, a referendum under a Labour government by no means – by no means – guarantees a victory for remain, still less the big victory that would be needed for anything like a decisive resolution.
Taking back control
Of course the scope for deciding what Britain now does about Brexit is only partly in its control. Much depends upon what the EU decide to do as regards granting an extension, its length, and its terms. At the time of writing it is not clear what the decision will be or whether it will come today or not until Monday, just three days before no-deal Brexit will happen were no extension to be granted.
Note the word ‘granted’, for, with not much comment or fuss, we have now got used to the fact that it is the EU that calls the shots. Indeed, it is hardly remarked upon at all that ‘the do or die date’ of 31 October was of the EU’s choosing, not Britain’s.
It is an early, relatively small, lesson in the reality of what “taking back control” means. If the Brexiters, those great patriots, get their way we will have many more, and much greater, lessons in that stark reality.
More “unforced errors”
That may still turn out to be the case. The fact that it is not so today is in large part attributable to yet another of what the influential and insightful law and policy commentator David Allen Green has aptly described as the “unforced errors” of the Brexit saga. Specifically, it has arisen because of the Government’s ludicrous and unnecessary attempt to drastically curtail the time parliament had to discuss the Withdrawal Agreement Bill (WAB), and to do so without the provision of any economic impact assessment. The proposed timescale was, as the Director of the Hansard Society, Ruth Fox – not known for hyperbole - put it “ridiculous”. Parliament thought so too, and voted against the Programme Motion that set out the timetable for the Bill.
This was just the latest of the long string of ways, some outlined in my previous post, that May’s and now Johnson’s government have treated parliament contemptuously and found, in the absence of a majority, that parliament has many ways of biting back. There was no need for it, any more than for what was quaintly described in parliament as the “jiggery-pokery” of this week’s failed attempt to hold a Meaningful Vote. By the same token, Johnson’s latest, and third, refusal to appear before the Commons Liaison Committee reeks of his dismissive attitude to parliament at the very moment he is so dependent upon it.
In the case of the WAB timetable, it was totally unnecessary: the 31 October date would (all but) certainly have been breached anyway if only to allow European Parliament ratification, the extension letter had already been sent, and there could be no doubt that a short technical extension would be agreed if the WAB had passed. If the concern was ‘wrecking amendments’ it was pointless, as such amendments could have been laid anyway. As so often, it was just macho posturing.
The bad winners of Brexit
Tactically, the attempt was, as has been shown by its failure, ill-judged. But it was also strategically ill-judged and in a way which has a wider significance than this particular episode. Suppose it had succeeded? Then, Brexit would for years be dogged by accusations of having been achieved through hole-in-the corner means, without proper parliamentary oversight. If so, that would be added to a whole strong of similar accusations that Brexit is going to face anyway, if it occurs. Everything from the dishonest manner in which the referendum campaign was fought and won, the unnecessary legal battles over parliamentary involvement, prorogation and, even, whether the PM had to obey the law all mean that any sense of victory will be sour.
If I were a Brexiter, who genuinely believed that this was a project for national liberation and national revival, I cannot imagine taking any pleasure in having achieved it through such squalid and disreputable means. It is one of many ways in which Brexiters’ graceless response to their referendum victory gives the impression that they would have been happier if they hadn’t won.
For that matter, as the WAB debate speeches this week by ERGers such as John Redwood and Owen Paterson show, the Brexit Ultras feel no joy in the deal that they have signed up to, and do not regard it as the Brexit they had really envisaged (like the apologists for every failed managerial fad and political ideology, Brexiters are always going to say that it would have been fine had it just been implemented ‘properly’). As I remarked in my previous post, the national tragedy of Brexit is that, even if it is done, the most ardent Brexiters will be as bitterly unhappy as remainers.
The WAB’s nasty surprises
Returning to the WAB itself, the impression given was that the government had something to hide in seeking to ram it through so quickly. It is no good saying, as some did, that parliament had had years to discuss every aspect of Brexit. The fact is that, after all those years, this was the first time that anyone had seen in precise, detailed, legal terms what Brexit (at this stage) meant. And on examination the legislation revealed at least four areas of controversy over and above those that were already clear from the broad outlines of Johnson’s deal (for detailed, expert, legal analysis of the Bill, see Steve Peers’ excellent blog).
First, it emerged (initially, it seemed, to the surprise of the Brexit Secretary himself) that the new arrangements for Northern Ireland (NI) would involve new customs processes (not necessarily declarations) for goods travelling both from Great Britain (GB) to NI and from NI to GB. This further underscored the reasons for the DUP objections to the deal for, indeed, it shows how transactions between the two parts of the same country are now pretty much on a par with importing and exporting goods between separate countries. There could hardly be a greater affront to unionism nor, though for mirror-image reasons, to Scottish nationalism.
This, along with the different regulatory arrangements for NI, leads to an observation, which I had not thought of or seen before in these terms, made by the finance and economics writer Frances Coppola in a tweet this week: Johnson’s deal means that after Brexit the UK will no longer be a single market. Expressed that way it is quite remarkable. There have been long debates about whether or not the UK could and should remain in the European Single Market after Brexit. Never was in envisaged, in terms, that the UK single market would be brought to an end.
The second issue to emerge was over workers’ rights protections. It was already controversial that these had been moved from the Withdrawal Agreement (WA) to the non-binding Political Declaration (PD). In the legislation, a bizarre pair of clauses has it that a minister introducing any future legislation must state that it doesn’t reduce such rights compared with EU provision or that the minister is unable to state that but wants to proceed with the legislation anyway! I suppose it is conceivable that this was a drafting error but if so, given the political charge of the issue, an extraordinary one.
Thirdly, the proposed legislation requires that future terms negotiations with the EU be constrained to the ambitions set out in the PD. This is particularly sneaky, because one argument to waverers on both the Tory and Labour sides has always been that since the PD is not legally binding (i.e. unlike the WA it would not form part of an international treaty) then there is ‘all to play for’ once the WA is ratified. The WAB would use British law to undercut that (albeit that, I suppose, a future government could legislate to change that law).
Fourthly, and perhaps most controversial of all, the WAB deprives parliament of the right to force the government to seek an extension to the Transition Period (TP) in order to prolong post-Brexit trade talks. This is enormously significant to what would happen – and very soon – after Brexit day if we get there. As discussed in my previous post, a potential new cliff-edge arises if there is no trade agreement in place by the end of the TP at end 2020 and if the UK has not asked for an extension by 1 July 2020 (more detail on the likely timetable and issues arising from it here).
No one serious thinks the trade talks will be to any degree advanced by then – especially given that whether held before or after Brexit an election will shave a couple of months off the time available – and Johnson has said that he will not apply for a TP extension. That could of course be bluster, but if not then there is the prospect that, without any parliamentary agreement, there would be a new kind of no-deal Brexit at end of 2020. (In passing, it is perhaps not sufficiently explained in the media that this would be a new kind, and not the same as the no-deal we talk about now, in that there would be a WA in place but, equally, by that point there would be no ‘revoke Article 50’ option available as a final defence against the new version of no deal).
This may be what some Brexiters actually want. Others may still nurture the fantasy that this will be ‘the easiest deal in history’ because the UK would be starting from a position of alignment with the EU. I discussed that myth a couple of years ago but this week there was a reminder of one of the reasons why it is a myth. A ‘normal’ preferential trade deal takes a long time partly because various businesses and sectors lobby to be excluded from regulatory alignment (usually for protectionist reasons). In this trade negotiation the delays will be for the mirror-image reason: lobbying to remain aligned. Businesses have already begun (£) to make the opening salvos in that process.
A General Election?
The various controversial issues just identified in the WAB, and others, may well be the subject of amendment if it emerges from its present ‘in limbo’ status (this, apparently, is the correct term for it, and it could just as well be applied to the entire Brexit situation). If so, it may yet pass, and Brexit may yet happen. However, the possibility is now intensifying that events will be delayed by a General Election and, if so, that represents possibly the last chance for Brexit to be averted.
That may sound a strange thing to say, given that Johnson himself is pushing for an election, now, weirdly, tying this giving more time to debate the WAB (not that much more, in fact). But - barring some very dramatic event - the only realistic route to remain now lies in a Labour administration – whether majority or minority – organizing another referendum (this would in turn entail yet another request to the EU for an extension).
The present parliament almost certainly isn’t going to vote, and legislate, for another referendum. On the other hand, if the WAB ever is debated by the present parliament then it is quite likely to end up passing. The Second Reading, after all, passed by 30 votes – allowing Johnson to make the wholly dishonest claim that his deal had been “passed” – and although many of those votes (it would only take 15) could peel away at Third Reading it looks plausible that it could squeak though. Even if it were heavily amended, most amendments (e.g. to seek a customs union) could easily be undone by a future government whereas, so long as it passed, then Brexit would have happened and there would be no way back. Also relevant here is that after 31 October there will be a new Speaker, who may well be less robust in defending the rights of parliament than John Bercow.
I had been planning to set out this analysis in greater detail, but the ever-acute Ian Dunt has already done so. Of course, as Dunt explains, the outcome of such an election is very difficult to predict. But to my mind the crucial point is that an election in which Brexit has not happened will see the Tory vote eaten into from both sides, by the Brexit Party and by the LibDems. Indeed, there is some recent polling evidence for this. Clearly Johnson will play his ‘people versus parliament’ card, but with Brexit not done a good chunk of the Brexit Party vote will not vote for him – enough to lose him some seats without, in all probability, gaining as many or even any at all for Farage.
Tactical errors from both parties
This gives Labour a far better chance of winning than would a post-Brexit election, with Johnson riding high against the Brexit Party as the man who had ‘got Brexit done’ (and just before it became obvious to all that this was just the start of many more months and years of Brexit dominating everything). That ought to make an early election attractive to Labour. A month ago I wrote that it was good tactics by Corbyn to keep Johnson “twisting in the wind”, and so it has proved to be, but that has all changed as a result of the Johnson deal and the writing of the extension letter. To continue to oppose an election now is bad tactics (though, for the directly opposite view of this analysis, see Hugo Dixon’s latest In Fact blog).
Implicit in all this is that Johnson is also making tactical mistakes. If my analysis is right, he would be far better off – given that the 31 October deadline is now just a dead line – bringing back the WAB with a new timetable, having a decent shot at passing it, and then a very good chance of winning an election. That, presumably, is what the current ‘offer’ is meant to achieve, but bear in mind that this is not the first time that he has sought an election and that, if he gets one now, it’s not going to be accompanied by an agreement to debate and pass the WAB first – or at least not unless Labour are completely stupid. His error is in trying to tie the two together, rather than conceding a new timetable on the WAB without preconditions.
So, indeed, I think Johnson is making a blunder. But that is not surprising since he is presumably being guided by Dominic Cummings who, it is now abundantly clear, is not the master tactician and strategist that some – himself foremost amongst them – believe. As a result, ‘Classic Dom’ has now emerged as a term to denote a supposedly clever tactic backfiring spectacularly.
In saying all this, I make no comment on the general merits of a Labour or a Conservative government, just on what each would mean for the prospects of Brexit. Solely from that perspective there are clearly many risks in an election. If it yielded a Tory majority then the WAB would surely get passed and Britain would leave the EU. Equally, a referendum under a Labour government by no means – by no means – guarantees a victory for remain, still less the big victory that would be needed for anything like a decisive resolution.
Taking back control
Of course the scope for deciding what Britain now does about Brexit is only partly in its control. Much depends upon what the EU decide to do as regards granting an extension, its length, and its terms. At the time of writing it is not clear what the decision will be or whether it will come today or not until Monday, just three days before no-deal Brexit will happen were no extension to be granted.
Note the word ‘granted’, for, with not much comment or fuss, we have now got used to the fact that it is the EU that calls the shots. Indeed, it is hardly remarked upon at all that ‘the do or die date’ of 31 October was of the EU’s choosing, not Britain’s.
It is an early, relatively small, lesson in the reality of what “taking back control” means. If the Brexiters, those great patriots, get their way we will have many more, and much greater, lessons in that stark reality.
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