The scandal of the settlement scheme for EU citizens

This week’s domestic news has been dominated by the Horizon Post Office scandal, following the screening of the ITV drama Mr Bates vs the Post Office. There are some Brexit aspects to that which I will write about in my column in next month’s print edition of Byline Times, so I won’t repeat them here. However, the massive public outrage that has followed the drama ought to alert us to the scandals going on right now. It is all well and good to feel shock and revulsion about what happened to the sub-postmasters, but, aside from their campaign group and a handful of journalists and politicians, who gave much thought to their plight over the twenty and more years that it was unfolding?

It’s not that what was happening during that period was completely unreported, but it was perhaps easy not to pay too much attention because it seemed too complicated, or someone else’s business, or something that would all be sorted out and need not concern us unduly. And perhaps there is a harsher diagnosis here: it’s easy enough to join in with the baying crowd of condemnation now that there is such a crowd, but rather more difficult to do so when the cause was unfashionable and the outcome had to be fought for.

The ITV Post Office drama was aired on the first four days of the new year. But it was book-ended by three reports by Lisa O’Carroll in the Guardian which received far less attention. They all concerned issues arising for EU citizens who had been living in the UK before Brexit, and the government’s EU settlement scheme (EUSS), and they point to another scandal emerging under our noses but with little of the public outcry that the Post Office scandal has now provoked.

The emerging EUSS scandal

One of these reports, on 26 December, highlighted the case of ‘Silvana’, an Italian who has lived in the UK for fourteen years and faces removal from the country because she had not realized that her ‘permanent residency’ card is now insufficient, and that she needs to apply to the EUSS. However, that scheme has now closed and although it still accepts late applications on ‘reasonable grounds’, a change of rules in August removed lack of awareness of the scheme from the list of such grounds. A couple of days before, O’Carroll had reported another case, that of Massimo, an Italian restaurant owner, and his British wife, Dee, have had their bank accounts frozen because he, too, had thought his permanent residence card was still valid.

Then, on 7 January, O’Carroll reported that ‘Maria’, a Spanish woman resident in the UK, had been forcibly returned to Spain when trying to re-enter Britain after a short visit to her home country. She had documents, specifically a Certificate of Application for the EUSS, which clearly stated her right to live and work in the UK, but had not yet had a final decision on her application, in that her case was still under review following an appeal against an initial rejection. The border officials said this document was not valid, detained her overnight at Luton airport and then sent her back to Spain.

The details of each of these cases is different, and each has its own complexities, but they are not isolated. According to the3million, the main campaign group for EU citizens living in the UK, at least 140,000 people are in Maria’s situation of having Certificates of Application, but awaiting the outcome. More generally, there are an unknown number of people who have, or may, have fallen foul of the post-Brexit settlement scheme, whether because of their own confusion about it, or because of erroneous advice from officials or lawyers. As with the Windrush scandal, it may be many years before the full impact of this comes to light.

Nor is the issue just one which affects those who have not applied for, or not yet been granted, ‘settled status’. Even those who have received it can experience difficulties when they have to prove it, for example in order to get work, rent a home, open a bank account, or access the NHS. This was the case for ‘Agnieszka’, a Polish woman who has lived in the UK for sixteen years and has settled status, who found that when she tried to change her job there were errors on the government’s online ‘View and Prove’ system, and as a result she lost the position. It took the Home Office three months to correct the error.

This case illustrates one of the biggest travesties of the EUSS, the government’s refusal, despite repeated requests and legal challenges, to create a paper version of proof of settled status. The digital-only system is not only complex even when it works as intended, but has also been subject to what appear to be numerous bugs and/or hacks in which crucial data has been lost or changed.

The origins of the scandal

It’s worth delving back into the origins of all this. Of all those whose lives have been damaged by Brexit, EU citizens who were living in the UK, most of whom were not even entitled to vote in the referendum, along with UK citizens living in the EU, some of whom could not vote, have surely been the worst and most directly affected. There are many dimensions to that, starting with the emotional hurt of a vote which was to so large an extent animated by hostility to freedom of movement and immigration generally. That hurt was especially profound because so many of those affected had such deep, longstanding, roots, both private and professional, in the UK.

Then there was the psychological and economic insecurity created as the Brexit negotiations proceeded, captured by the painful testimony of the In Limbo books edited by Elena Remigi and others. Now, even with settled status, there has been a definitive loss of previous full rights of freedom of movement, and all the ongoing practical problems attendant to that loss for families and relationships. So there is a sense in which all this is scandalous in itself, even before the various issues of human, administrative, legal, and technical error which, collectively, constitute the specific scandal of EUSS.

From the outset, the EU insisted that there were three main priority areas which had to be substantially resolved in phase one of the Article 50 negotiations. These were the financial settlement, the situation of Northern Ireland, and Citizens’ rights. Perhaps surprisingly, and despite the bluster of Brexiters, including Boris Johnson, the first of these proved relatively straightforward, to the extent that the ongoing payments being made to the EU, and which will continue until 2065, are barely remarked upon now. There was not even much attention to the way that one consequence of Truss’s disastrous mini-budget was to add £91 million to the bill.

The Northern Ireland issue, despite a different kind of Brexiter bluster, to the effect that it was a non-issue, turned out to be far more complex, vexed, and intractable. Indeed, the reality is that, although this was supposed to be resolved in phase 1, it never disappeared during phase 2 (the future terms discussion), and its supposed resolution with the Northern Ireland Protocol proved chimerical once the transition period ended. Hence the Windsor Framework, which is only now starting to be implemented. All that has been discussed many times on this blog, and I won’t say more here.

What, to my discredit, I’ve discussed less often is the third of the phase one issues, Citizens’ rights. In fact, the most extensive coverage of it here was in the sole guest-authored post, written by Monique Hawkins (now Interim Co-CEO of the3million) in December 2018. That post contains many points that are still relevant. These include the fiasco of the original ‘permanent residence’ scheme and highly prescient concerns about the then emergent EUSS scheme, concerns which relate to all of the individual cases mentioned above, including the problems of a digital-only certification system.

For all these reasons, Alexandra Bulat, another campaigner in this area, and who is now the first British-Romanian Labour County Councillor, argued in February 2018 that public perception that Citizens’ rights had effectively been dealt with during phase one was mistaken. Five years on, and with the EUSS in place and giving rise to cases including, but certainly not limited, to those recently reported in the Guardian, it is now becoming clear that this is not just a scandal in the making but a scandal in progress. That is not just a matter of the EUSS itself, but also the extremely heavy-handed policing of the borders. Thus, last year, the Immigration Advice Service, again partly as the result of Guardian reporting, highlighted the high rate of EU nationals being detained at the border, including cases such as a Spanish woman arriving for a job interview without a visa even though that is something perfectly permissible under the regulations.

Parallels between the Post Office and EUSS scandals

There are some clear and direct parallels between this scandal and the Post Office, most obviously in the role of technology, where the flaws in the Horizon system can be compared with those in the EUSS View and Prove system. They also share an inversion of normal justice, in the way that the onus falls on the victims to prove their innocence in the face of an assumption that they are guilty. In a less direct way, there are parallels in the way that individuals are confronted with a massive and powerful bureaucracy, and a bureaucracy which not only applies its rules with impersonal indifference but, sometimes, does not even apply its own rules correctly.

Moreover, although EU citizens’ rights are overseen by the Independent Monitoring Authority (IMA), which is formally an “executive non-departmental public body sponsored by the Ministry of Justice”, it would seem that, as with the Post Office case, the effectiveness of political and public accountability is limited. That’s not to dismiss some of the good work the IMA has done, including winning a court case against the Home Office in 2022 on one aspect of EUSS’s functioning. Yet, on another aspect, where it investigated the effectiveness of the issuing of Certificates of Application for EUSS, making three recommendations for improvement, the Home Office, in its response of September 2023, was able simply to dismiss two of the three, apparently with impunity.

In a sense, people like Hawkins and Bulat (and others associated with the3million and similar organizations) can be compared to the very early campaigners in the Post Office scandal, and O’Carroll with the journalists who first began to report it. Some politicians, too, including Green MP Caroline Lucas, have taken an active interest in it, just as a few did in the Post Office case. But what the Post Office scandal should tell us is that it is now, when the damage is being done, that public outrage and outcry is most needed, as it is only that which galvanizes effective political action.

Where are the Brexiters?

It's true that for most of us there may be little we can do other than, say, write letter to our MPs, or make a donation to a campaign group or a crowdfunded legal action. But what of those with a public platform who have now so opportunistically started singing the praises of Mr Bates and the other sub-postmasters? What about Nigel Farage? Now, he is quite ludicrously* castigating Keir Starmer for having been Director of Public Prosecutions when the postmasters were being prosecuted and, of course, he made much of his ‘victimization’ when de-banked by Coutts. Surely, then, he should be leading the outcry, if only for those like Massimo who have been de-banked by Brexit?

And what of David Maddox, Political Editor of the rabidly pro-Brexit Express, who this week penned possibly the most dotty commentary on the Post Office scandal so far, opining that: “the real big picture story here is that this was once again an example of the establishment circling in to protect and reward itself while dumping from a great height on the little ordinary people – aka the decent hard-working folk who keep this country ticking over. This is one of the main reasons why millions of Brits, some of whom had never voted before, rose up and voted Leave in 2016 to leave another pan-European, rigged establishment club”? We await Maddox’s fulminations on behalf of the “little ordinary people” and “decent hard-working folk” being ‘dumped on’ by the EUSS.

What of thuggish Lee Anderson, one of those intent on making Ed Davey the villain of the Post Office scandal (a proposal which, along with other aspects of the current situation, was eviscerated by Private Eye editor Ian Hislop in a blistering TV appearance)? What, for that matter, of those Vote Leave campaigners who insisted that little or nothing would change for EU citizens in the UK and for UK citizens in the EU (£), dismissing all concerns as part of Project Fear, and often – with the habitual Brexiter proclivity to cite legal factoids which they didn’t understand – erroneously invoking the Vienna Convention as proof of this?

Why it matters

The need to recognize and resolve the emerging scandal of the treatment of EU citizens in the UK is, first and foremost, a moral imperative. But it also has a pragmatic and political aspect, and one which should be as important to those who want to ‘make the best of Brexit’ as to those who want to reverse Brexit altogether. The reason why the EU insisted that Citizens’ rights must be dealt with in phase one was because protecting those rights was very high on its list of priorities – higher, perhaps, than protection of UK citizens’ rights was to the British government.

It remains the case that the EU and individual member states are very much concerned about this. For example, in February 2023 (£) the EU raised serious concerns about the Home Office’s sudden rejection of over 140,000 on-line applications for settled status, with an EU diplomat reported as re-iterating that “protection of EU citizens’ rights is a priority for us”. Similarly, as early as May 2021 the European Commission expressed “concern” in relation to unwarranted detentions of EU citizens at UK borders.

So if there is to be a return to good relations with the EU, let alone an atmosphere in which a UK application to re-join the EU or even the single market would be viewed positively, then a pre-requisite would surely be fair treatment of EU citizens. One of the many ways in which Brexiters failed to show generosity in their victory was to treat these EU citizens so carelessly, effectively exposing them to the whole panoply of the ‘hostile environment policy’ the Home Office has created. For that, and for Brexit itself, they bear responsibility and deserve blame. But, whilst acknowledging that, I think that the Post Office scandal provides more uncomfortable and perhaps unpalatable lessons.

Uncomfortable lessons

Following the ITV drama, public revulsion at what was done to the sub-postmasters has, understandably, focused especially on Paula Vennells, the former CEO of the Post Office. In the face of that revulsion, she has since capitulated to the widespread demand to return the CBE she was awarded, and now faces pressure to return bonuses she was paid. Few will feel much sympathy for her.

Yet it doesn’t necessarily require sympathy to notice that the way she has been pilloried, including extensive reference to the gap between her conduct as CEO and her position in the Anglican Church, is itself not so very different to the way that some of the sub-postmasters who were wrongly convicted were turned on by their communities at the time it was believed those convictions were warranted. That didn’t always happen, and in some cases their communities gave huge support to them, but sometimes they were insulted and even assaulted, as were their families. And, just as Vennells is depicted as a hypocrite because of her religious beliefs, so they were depicted as having betrayed community trust.

Vennells may well have been incompetent, dishonest, and, for all I know, malign, and I’m certainly not defending her. But making her the main scapegoat for the entire scandal, or at least the lightning rod for public anger, neglects the systemic nature of that scandal. To call it systemic means much more than just identifying a larger cast of scapegoats in the multiple actors in the Post Office, Fujitsu who created the Horizon system, and parts of the government. It also means recognizing the role of habitual practices around things including outsourcing, political oversight of ‘arm’s length’ agencies such as the Post Office, and the conduct of private prosecutions. Less comfortably, it includes the role of those who disdained the victims as criminals and those, comprising almost all of us, who didn’t give very much care or attention to what was happening, at least until we saw it depicted on TV.

How do these lessons apply to Brexit?

So what of the emerging EUSS scandal and of Brexit more generally? Just as I’ve argued in the past that it is useful to imagine how the UK would have regarded another country had it been leaving the EU, so is it instructive to think about how the UK looks from abroad. Whereas, internally, we may see a crucial distinction between leavers and remainers, from outside it is simply the case that the British people chose to leave. After all, few of us are familiar with the intricacies of other countries’ politics – mostly, we just notice the headline fact that, say, ‘the Italians’ have elected Meloni, or that ‘the Australians’ have voted against the indigenous voice change to their constitution. Brexit is seen a similar terms from outside as, no doubt, is Britain’s treatment of EU citizens.

At some point, especially if there is to be any serious possibility of re-joining, that has to be confronted. It’s not enough to indignantly say it was ‘Russian interference’, or an accident of Tory Party (mis)management, or dishonest campaigning using data analytics to malign ends, or manipulation by Tufton Street thinktanks, or, even, that it was all the fault of the Brexiters. Whether or not those things are true doesn’t adequately acknowledge that, as a collective entity, our country chose to leave, and so it’s like saying some version of ‘it was Vennells’ fault’ in relation to the Post Office scandal. In other words, it fails to acknowledge that, in ways that are far too numerous to discuss here, Brexit was a systemic decision born of the history of the UK’s membership of the EU, our public discourse, especially about immigration, and the nature of our political culture and institutions, all of which ultimately paved the way to the headline fact that Britain voted to leave.

If Brexit is ever to be reversed then it may well need at least some high-profile Brexiters to recant and, rather like Vennells returning her CBE, to give some acknowledgement of their misconduct and failure. But, more importantly, it will require a repudiation of the systemic factors that lay behind Brexit. That will take many years, if it happens at all, but in the meantime a small step in that direction would be to start making a noise right now about the unfolding EUSS scandal. It will not be enough to wait until when, in, say, 2044, there is a TV drama about all the lives ruined, and joining the angry crowd demanding justice becomes easy and even, in a perverse way, enjoyable.

 
*Ludicrously, as the vast majority of these 900+ prosecutions were private, not public, and of those which were not it seems only three occurred when Starmer was Director of Public Prosecutions, and it seems unlikely he is culpable for them.

Time and motion

Apart from grotesque pointlessness of the Queen’s Speech and the understandable, but also pointless, proliferation of predictions and counter-predictions about the Brexit negotiations, the guiding theme of this week has been that of time. Could a deal be done, at all, and if so could it be in time for the EU Council meeting and for a UK parliamentary vote on Saturday, potentially avoiding the implementation of the Benn Act seeking an extension? The answer to both questions turned out to be yes.

We now face a situation whereby, within less than 48 hours, MPs will make a rushed, pressured decision which will shape our future for decades to come.

As ever, the roots of these events lie deep in the tangle of the last three painful years, and in particular from the aborted 2017 ‘row of the summer’ over sequencing.

A brief history of time

The theme of time has been present since the triggering of Article 50. Yet in and of itself Brexit needn’t have been characterised by relentless time pressure. The Referendum did not specify a date for leaving and had Brexiters been honest they would have recognized that, if they were serious about their project, it would entail a process of many years to complete it. For that matter, given that we are constantly told that those who voted leave knew exactly what they were voting for, it hardly behoves them now to complain that it ‘should just be done’. It can’t ‘just be done’ and if people voted thinking it could then they didn’t know what they were voting for.

But of course there has been no such honesty. That a deal would be quick and easy was a repeated promise during the Referendum campaign. Perhaps it was a lie; perhaps it was complacency born of ignorance of even the most basic of facts; perhaps, puffed up on chauvinistic dogma that all the UK needed was to name its terms, the leave campaigners believed it. Perhaps all three.

At all events, even after the Referendum, in December 2016 Boris Johnson was insisting that 18 months would be “absolutely ample” to get a “great deal” done. Who knows, but had the UK developed a detailed and realistic plan for Brexit before triggering Article 50 there might have been a grain of truth in that. Instead, entirely in order to appease the paranoid fears of the Brexit Ultras that they were going to be ‘cheated’, Theresa May initiated the Article 50 process.

From then on, the drumbeat of time has been the constant backdrop to Brexit. And yet May immediately squandered effectively six months by holding an election. And even when negotiations finally started the government was woefully under-prepared, starkly symbolised by the photo of David Davis, hapless and paperless, facing his EU counterparts with their bulging files of notes.

The timewasting went on. Having pushed for completion of phase 1 of the talks in December 2017, desperate to get to the 'real business' of trade talks, it emerged that the government had no agreed ideas as to what they wanted from phase 2. Worse, May almost immediately repudiated what had been over-hastily agreed in terms of a Northern Ireland only backstop during phase 1.

As a result, to all and intents and purposes there never were any phase 2 negotiations. Instead, there was a de facto re-negotiation of phase 1, leading to the all-UK backstop of the eventual Withdrawal Agreement (fuller detail on the convoluted history of the backstop here). As for phase 2 issues, it was not until the ‘Chequers’ Proposal’ of July 2018 that any kind of plan emerged from the UK and at that point the government effectively fell apart in acrimony, setting in place the long grind that ended in the extension of the Brexit deadline to the end of October 2019.

Despite warnings from Donald Tusk not to waste this time, the Tory Party decided to ditch May, have a leadership contest, and installed Boris Johnson who did nothing other than declare the inviolability of the October leave date, apparently expecting the EU to come up with new proposals rather than risk no deal. That ‘strategy’ foundered partly because the Benn Act rendered it impossible and partly, if rumours are true (£), because Johnson – like May before him – finally came to realise the disaster that no-deal Brexit would mean, both economically and, especially, for security in Northern Ireland.

Hence we arrived at this week’s panicky ‘essay crisis’ politics. It’s a consequence not of that Brexiter canard that EU talks ‘always go to the wire’ (the dynamic of the Brexit negotiations are quite different to those of, say, an EU summit) but of this long history of dishonesty, ignorance, and incompetence.

Time sequencing

Nested within that history is something much more complicated and, I think, somewhat under-appreciated. Apart from the general effluxion of time, the issues around sequencing in particular are crucial to what happened this week. Brexiters always thought and talked of the negotiations as being about future terms, specifically future trade terms, with the EU. Whereas from the beginning, and anyway entailed by the Article 50 process, the EU saw the negotiations as being about withdrawal terms and only when these were agreed could future terms negotiations begin.

Moreover, Brexiters usually talked, and still often talk, as if a trade deal can be completed as part of withdrawal or at least be ready for “the day after”. Theresa May herself seems only to have recognized the legal impossibility of this (the EU can’t do a trade deal with a country that is still a member state) in April 2017. That was after the Article 50 letter which, at the very least, envisaged withdrawal and future terms talks occurring in parallel, rather than in sequence.

This was the background to the threatened ‘row of the summer’ of 2017, a row which never materialised because the UK accepted sequencing, leading to the phase 1 agreement mentioned earlier. But Brexiters have never really accepted that sequence. That is evident in the repeated complaints about having to agree the financial settlement without having any guarantees about future trade terms (mistakenly, of course, since the settlement is for past commitments). But most significantly of all it is evident in relation to the Northern Ireland backstop.

Here, the Brexiters’ position – not entirely unreasonably – has been that the arrangements for Northern Ireland are to a degree contingent upon the future trade terms. Why, then, should the EU insist on sorting them out first? The answer is that the moment the UK made ending single market and customs union membership its red lines there were inevitably going to be implications of some sort for the border. In the absence of knowing what these would be, a backstop was necessary to ensure that, whatever happened, the border would remain unchanged.

In Johnson’s approach over the last two weeks, this basic structure, embedded in sequencing and legally articulated in May’s Withdrawal Agreement, has been ripped up. Thus rather than making new proposals for the backstop, what he made were new proposals for what the final state of the Irish border will be. This remained the case even after the original ‘two border’ proposals of 2 October were discarded in favour of the dual customs approach (see below) that has now been agreed. Many commentators expressed surprise when the new deal was unveiled to find that there was no longer a backstop. They shouldn’t have been – that is precisely what has been at stake over the last fortnight.

This is significant partly because it develops out of a persistent misunderstanding amongst Brexiters of what the backstop meant. For, in their eyes, it “permanently trapped” the UK (in May’s agreed version) in the customs union. That was nonsense to the extent that were a different solution to materialise then the backstop would never be used, or would be superseded. Nevertheless, they treated the backstop as a statement of the final state.

Now, instead, they have successfully sought to make a different solution (not Johnson’s original proposal, of course) the front-end agreement and to render this the permanent outcome, notwithstanding the new ‘consent’ clauses requiring periodic agreement from the Northern Ireland Assembly which set a very high bar indeed to consent being withdrawn. This seems a strangely pyrrhic victory from a Brexiter point of view, since it makes permanent a jurisdictional role for the ECJ in one part of the United Kingdom. It is also, of course, deeply ironic that what this new permanent arrangement looks like is not so very different to the original idea of a Northern Ireland only backstop, with an Irish sea border, that May had said no British Prime Minister could accept.

The other big change in Johnson’s deal compared with May’s deal also roots back to the earlier issue of sequencing. Along with expunging the UK-wide backstop in the Withdrawal Agreement (WA), the Level Playing Field (LPF) clauses have also disappeared from there, but have re-appeared in the new Political Declaration (PD). These clauses relate to things like employment and environmental standards and competition rules.

Their removal from the WA was proposed in the original Johnson plans [paragraph 4]. Whether he had originally wanted them to move to the PD, or whether this was forced upon him by the EU I don’t know. But it is a significant change because whereas the WA is legally binding the PD is not. In terms of sequencing, this puts LPF exactly where Brexiters said it should be during the withdrawal negotiations – in phase 2. This in turn means that it could be abandoned in the future trade talks.

There would be a price to pay for that, of course, since without agreeing to LPF any trade deal would at best be of a minimal ‘Canada Minus’ sort, whereas Brexiters typically say that they want a Canada +++ deal. Still, it may well be that Canada Minus is where they now want to go, especially given Johnson’s desire to do a quick trade deal with the US, which would be impeded by LPF. Moreover, the fact that the government are now talking about the trade deal with the EU being completed within about a year suggests either that it still hasn’t understood the complexities of trade negotiations or that it is content with a very narrowly-scoped agreement.

Politically, the presence of the LPF clauses in the PD may also prove significant in the coming parliamentary vote, but in ways that are rather unpredictable. On the one hand, the fact that they are in the PD not the WA is more palatable to Brexit Ultras. On the other, that they exist at all may be encouraging to Labour MPs who want to vote for a deal but not see rights eroded. The trouble for the government is that what is attractive to one group is unattractive to the other. Both may see it as ‘good enough’ but, equally, might conclude the opposite.

Time travel

Finally, it’s worth considering the proposed dual customs arrangement for Northern Ireland. That is, Northern Ireland like the rest of the UK would leave the customs union, but would apply the EU tariff regime. Thus (with the caveat below) a good entering Northern Ireland would be subject to the relevant EU tariff, but the importer would be rebated if the UK tariff were lower. If, on the other hand, it were then to be shipped into Ireland (or any other EU country) there would be no such rebate since the good had, indeed, had the correct EU tariff charged.

The problems with this are numerous, since the entire system is massively complicated and completely untried. But the central problem is that of rules of origin. It is one thing to identify the tariff to be paid on a good moving from one customs territory to another, and then make the appropriate adjustment. It is quite another to determine what to do if and when that good is then combined with others and then sold in a different territory.

Michel Barnier used the example of combining imported sugar with other ingredients to make a fizzy drink in Northern Ireland that is then sold in Ireland. There is really no practical way of working out what tariff should apply to this sugar (assuming that the EU and the UK tariffs are different). Multiply that across the full range of goods that are traded and it becomes very difficult indeed to implement it. The wrinkle that the new deal adopts to try to make this more manageable is to say that tariffs will only be charged on goods travelling from Great Britain to Northern Ireland if they are “at risk” of onward travel to Ireland. But which goods these will be is to be decided by the Joint UK-EU Committee. In this sense, the most difficult operational details of the new arrangement have been deferred, or side-stepped. It will be interesting to see, if this all comes to pass, just how it will actually work in practice.

Such apparently abstruse technical details matter, because they are the practical substance of what Brexit means – precisely the kind of substance that Brexiters have for the most part been uninterested in. But they also matter because they exemplify a persistent problem within Brexiter thinking. It is widely remarked upon that much of that thinking exhibits a nostalgia for the past, for the latest discussion of which see Professor Robert Saunders’ excellent article in New Statesman. That nostalgia is apparent not just as a general pre-disposition but in an extraordinarily outdated understanding of how modern businesses and trade work. That is apparent whenever Brexiters talk about how ‘we managed perfectly well before we joined the EU’, in denial or ignorance of the multiple ways that business has changed since the early 1970s, as if they had not just won a referendum but built a time machine.

In the present example, it manifests itself in the problems Brexit poses given the complexity of modern supply chains. The new deal tries to accommodate this through the fiendishly complicated dual customs system, which may just about work for goods. But completely cut adrift by this system are cases where goods are combined with services (e.g. maintenance contracts), otherwise known as Mode 5 services which, within the EU, are intimately tied to freedom of movement rights. (It presumably goes without saying that services, per se, do not figure at all, either for Northern Ireland or Great Britain: they are the biggest economic casualty of hard Brexit).

This lack of understanding has more generally been shown by the Brexiter failure to comprehend not just modern international supply chains but their often just-in-time character. Because it has dropped the UK-wide backstop, Johnson’s deal, even more than May’s, probably sounds the death knell for businesses – most obviously auto – working on that model.  Relatedly, it is shown by constantly configuring trade barriers and trade agreements in terms of tariffs and their removal in a way that may have been true in the nineteenth century but is entirely inadequate in a world where non-tariff and regulatory barriers, especially for services, are the main obstacle. This then feeds through into the false proposition that a Free Trade Agreement (FTA) could substitute for single market membership, all the more false if it were to end up being an FTA of the most limited sort i.e. Canada Minus.

Clearly this will have long-term implications not just for Northern Ireland, where the focus of attention now sits, but for the viability of British business in general. This was underscored by the report this week from the UK in a Changing Europe research centre, showing how Johnson’s deal is more economically damaging that May’s deal. This forecasts that Johnson’s deal would over 10 years make the UK’s GDP between 2.3% and 7% lower than would have been the case if remaining in the EU, compared with between 1.9% and 5.5% under May’s deal. To which might be added that, according to the latest update from John Springford of the Centre for European Reform, by June 2019 the UK economy was already 2.9% smaller than it would have been had the Referendum vote been to remain.

Time for a parliamentary motion

And so, finally, it is parliament’s time again – and perhaps the last time it can postpone, or find a path away from, Brexit. It is utterly ludicrous that, after all the years of wasted time, delays and backtrackings described above, it should come down to a rushed debate barely hours after the new agreement has been made with the EU. In fact it is more than ludicrous, it is actually offensive to any lingering idea of rationality in politics, arising solely from Johnson’s fetishisation of the 31 October deadline.

The outcome now rests on the complex parliamentary arithmetic. Will the DUP stick to their present intention to oppose the deal? How many ERGers will remain Spartans to the last, and, like Farage, regard any actual form of Brexit as a betrayal of ‘true Brexit’? How many Labour MPs of the ‘Brexit must be done’ persuasion will support the deal just because it is a deal, regardless of its economic impact on their constituents? How many of the ‘Tory 21’ who lost the whip – even though many had voted for May’s deal – will feel inclined to support their one time leader?

As things stand, it seems impossible to predict how these numbers will land, both as regards supporting the deal and supporting an amendment – if tabled – on making support for the deal conditional on a referendum (which, in turn, would mean applying for an extension).

That latter option, to my mind, is the only sensible and morally correct course to take. Sensible, because if this deal is passed it is only going to lead to many more years of acrimony and dispute, so it would be better to seek explicit popular consent. And morally correct because nobody voting in 2016 could possibly have known that Brexit meant Brexit as defined in the agreement published just today.

Given that we are all going to have to live with this for decades, we should surely take just a little more time to check that this is really what we want to do.
 
I will probably do a short blog after Saturday’s votes